Shore v. Chicago

• Decision Date: 30 September 1881
• Citation: 100 Ill. 21,1881 WL 10591
• Parties: LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY et al.v.CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.
• Court: Illinois Supreme Court

100 Ill. 21

1881 WL 10591 (Ill.)

LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY et al.

v.CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.Rehearing denied September Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding.

Mr. THOMAS F. WITHROW, Mr. C. D. ROYS, Mr. J. L. HIGH, and Mr. GEO. W. KRETZINGER, for the appellants:

The extent of the exercise of the power of eminent domain is a question for judicial determination, and the extent of the taking must be limited to the necessities of the case. Cooley's Const. Lim. pp. 538-540.

Where all the purposes of the later organization can be effectuated without invading the property rights and franchises of the former, no implication will be tolerated by which the uses and purposes of the former can in any manner be infringed or impaired. Matter of the City of Buffalo, 68 N. Y. 175; City of Chicago v. Quimby, 38 Ill. 278.

A necessity created by the company for its own convenience, or for the sake of economy, will not justify an interference with or extinction of previously granted franchises. Packer v. The Railroad Company,7 Har. 211; Milwaukee and St. Paul Railway Company v. City of Faribault, 23 Minn. 167; Inhabitants, etc. of Springfield v. Connecticut Railroad, 4 Cush. 63; N. Y. C. Coal Co. v. G. C. C. Co. 37 Md. 503; R. S. R. R. Co. v. Davis, 43 N. Y. 137; Angell and Ames on Corp. sec. 192; Mills on Em. Domain, secs. 46, 47.

While the legislature has the right, under the constitution, to provide for the appropriation of the property and franchises of incorporated companies in case of “public necessity,” it has failed to do so, and the constitutional provision is not self-executing. It requires appropriate legislation to make it available.

A petitioner for the condemnation of land for right of way is not entitled to enter and take possession, pending the determination of the case on appeal to this court, by giving bond. A statute authorizing this is unconstitutional. See People v. Williams, 51 Ill. 63; Cook v. South Park Com'rs, 61 Id. 115; People v. McRoberts, 62 Id. 38; Sanborn v. Belden, 51 Cal. 256; Vilhac v. Stockton and I. R. Co. 53 Id. 208; San Mateo Water Works v. Sharpstein, 50 Id. 284; Thompson v. Grand Gulf R. and B. Co. 3 How. (Miss.) 240.

The court erred in excluding all testimony as to damages to the property and business of appellants by the proposed taking, and in excluding the testimony offered upon their cross-petition as to damages sustained to their property injured but not taken. Mills on Em. Domain, sec. 173; Haslam v. G. and S. W. R. R. Co. 64 Ill. 355; St. L., V. and T. H. R. R. Co. v. Clapp, 67 Id. 614; Jones v. Chicago and Iowa Railroad Co. 68 Id. 383; Keithsburg and East. Railroad Co. v. Henry, 79 Id. 292; South Park Com'rs v. Dunlevy et al. 91 Id. 49; Chicago and Alton Railroad Co. v. Hopkins et al. 90 Id. 316; R., R. I. and St. L. R. R. Co. v. McKinley, 64 Id. 338; Wilson v. R., R. I. and St. L. R. R. Co. 59 Id. 273; Chapman et al. v. Kirby, 49 Id. 217.

The compensation allowed should be sufficient to cover the actual damage occasioned by the actual construction of the road, for the land taken, for all physical injury to the residue, and for all inconveniences of any character actually produced. Jones v. Chicago and Iowa Railroad Co. 68 Ill. 383; 1 Iowa, 393; 2 Id. 300; Sherwood v. St. Paul and Chicago Railway Co. 21 Minn. 127; Bangor Railroad Co. v. McComb, 60 Me. 290; St. Louis, Vandalia and Terre Haute Railroad Co. v. Mollett, 59 Ill. 236. That a riparian owner is entitled to compensation for any interference with his right of access to his premises over navigable waters, which are public highways, is established beyond question. Delaplaine v. Chicago and Northwestern Railway Co. 42 Wis. 214; McCarthy v. Metropolitan Board of Works, L. R. 8 C. P. 209; Sinnickson v. Johnson, 2 Hare, 147; Hoffman v. Hoffman, 2 Dutcher, 175; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 101 Id. --; Chicago and Pacific Railway Co. v. Stein, 75 Ill. 44.

Interference with the right of access from a public road to abutting premises, to the injury of the latter, though such interference be located exclusively in the public highway, must be followed by compensation. See Glover v. North Staffordshire Railway Co. 16 Q. B. 923; East India and West India Docks and Junction Railway Co. v. Gattke, 3 Mac. & G. 155; London and Northwestern Railway Co. v. Bradley, Id. 336; Caledonian Railway Co. v. Ogilvy, 2 Macg. 229; Chamberlain v. West End of London and Crystal Palace Railway Co. 2 B. & S. 605; Wood v. Stourbridge Railway Co. 16 C. B. 236; Cameron v. Charing Cross Railway Co. 16 Q. B. 430; Ricket v. Metropolitan Railway Co.L. R. 2 H. of L. Cas. 187; Regina v. Eastern Counties Railway Co. 2 Q. B. 347; Iveson v. Moore, 1 Ld. Raym. 486; Goodall v. City of Milwaukee, 5 Wis. 32; Stetson v. Faxon, 19 Pick. 147.

Mr. HENRY C. CRAWFORD, for the appellee:

The assignments of error which relate to the order of the county court authorizing the appellee to enter upon the premises pending the appeal, are not cognizable on this record, and are also without merit.

The appellee paid the compensation assessed by the jury, and having given bond with good security for the payment of such damages as might be awarded, had the right, under the statute, to enter pending the appeal. See Mills on Eminent Domain, sec. 322; People v. McRoberts, 62 Ill. 45; Chi cago v. Barbian, 80 Id. 486; Mitchell v. Illinois and St. Louis Railroad and Coal Co. 68 Id. 287; I. and C. R. R. Co. v. Brower, 12 Ind. 374; Ney v. Sweney, 36 Id. 460; Ray v. A. and N. R. R. 4 Neb. 440; Lee v. N. W. U. Ry. Co. 33 Wis. 224; Matter of N. Y. Cent. and H. R. R. R. Co. 60 N. Y. 118.

The measure of compensation was properly restricted to the actual land, damages for the easement taken, and the physical injury occasioned to the residue of the blocks. Burt v. Brigham, 117 Mass. 308; Edmunds v. Boston, 108 Id. 544; Searle v. L. and B. R. R. Co.63 Pa. St. 93; Boone v. Patterson, 98 U. S. 407; Haslem v. Galena and Southern Wisconsin Railroad Co. 64 Ill. 355; Lafayette, Bloomington and Mississippi Railroad Co. v. Winslow, 66 Id. 219; South Park Com'rs v. Dunlevy, 91 Id. 49.

The principle on which the instruction was based is, that if the whole tract, when considered together, is not damaged or depreciated in market value, then the just compensation must be confined to the value of the easement in the strip of property actually taken.

It has been frequently declared that this method of determining the damages is not liable to the objection that it is deducting benefits contrary to the statute. Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238; Page v. Chicago, Minnesota and St. Paul Railway Co. 70 Id. 324; Dunham v. Hyde Park, 85 Id. 569; Chicago, Minnesota and St. Paul Railway Co. v. Hall, 90 Id. 42; Shawneetown v. Mason, 82 Id. 337.

The county court properly excluded the evidence offered as to the value of the right of way, or the probable damage from interference with traffic.

Damage to business or trade not taken do not fall within the inquiry. Biggs v. Corp. of London, 15 Eq. Cas. 381; S. and C. R. R. v. Vincent, 49 Cal. 140; Treadwell v. Boston, 123 Mass. 23. When lands have been taken for public use, the value of the land itself, and such damages as result directly from the taking to other lands of the owner not actually taken, must be assessed, and both price and damages paid. Stetson v. Chicago and Pacific Railroad Co. 75 Ill. 77; Mix v. Lafayette, Bloomington and Mississippi Railroad Co. 67 Id. 319. See, also, Chicago and Pacific Railroad Co. v. Francis, 70 Id. 240; Stone v. Fairbury, Pontiac and Northwestern Railroad Co. 68 Id. 396; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 Id. 273; Chicago v. Rumsey, 87 Id. 363.

It has been many times decided that the only damages which will entitle the owner to compensation, are those inflicted upon “contiguous” or “adjoining” land. Mix v. Lafayette, Bloomington and Mississippi Railroad Co. 67 Ill. 322; Jones v. Chicago and Iowa Railroad Co. 68 Id. 380; Chicago and Pacific Railroad Co. v. Stetson, 75 Id. 74; Fleming v. C. D. and M. Ry. Co. 34 Iowa, 356.

A railroad corporation across whose road another railroad is laid out, has a right to recover damages for the injury occasioned to its title or right in the land occupied by its road, but is not entitled to damages for the interruption and inconvenience occasioned to its business, nor for increased liability to damages for accidents, etc. Mass. Cent. R. R. Co. v. B., C. and F. R. R. Co. 121 Mass. 126; Boston and Worcester R. R. Corp. v. Old Colony and New York, 12 Cush. 611; 3 Allen, 147; Commonwealth v. Boston and Maine R. R. 3 Cush. 25; Old Colony v. Plymouth, 14 Gray, 155; C., C. and F. R. R. R. v. Plymouth, 14 Id. 162.

Under the condemnation of a right to cross, nothing will be acquired but a mere right of way, and the place of crossing will remain in common use of the parties for the exercise of their several franchises. The condemnation leaves the franchises unimpaired. State R. R. v. E. and A. R. R. 36 N. J. (L.) 187; N. J. S. R. R. v. Com'rs, 39 Id. 33; M. and E. R. R. v. Cent. R. R. 31 Id. 213. Mr. JUSTICE SHELDON delivered the opinion of the Court:

On March 15, 1880, the Chicago and Western Indiana Railroad Company filed its petition in the county court of Cook county, praying to condemn “a strip of land fifty feet in width, running across the following tracts of land in the city of Chicago, described as blocks 34 and 35,” etc., except the right of way of the St. Charles Air Line Railroad. It was alleged that the said fifty feet strip was exclusively on the right of way of the respondent railroad companies, and across their tracks, as more fully described in a plat annexed, and that it desired to make such appropriation without prejudice to the rights which defe...