Smith v. the Chicago

• Decision Date: 31 January 1873
• Citation: 67 Ill. 191,1873 WL 8165
• Parties: IRWIN Z. SMITHv.THE CHICAGO, ALTON AND ST. LOUIS R. R. CO.
• Court: Illinois Supreme Court

67 Ill. 191

1873 WL 8165 (Ill.)

IRWIN Z. SMITH

v.THE CHICAGO, ALTON AND ST. LOUIS R. R. CO.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Messrs. GILLESPIE & SMITH, for the appellant

Mr. CHARLES P. WISE, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment, in the Madison circuit court, brought by Irwin Z. Smith, against the Chicago, Alton and St. Louis Railroad Company, to recover the possession of a certain tract of land, being part of claim 484, survey 623, situate in the American bottom, near to and opposite St. Louis, and which the defendants were occupying as a part of the track of their railroad.

There were several trials of the issue made up between the parties, the first resulting in a verdict for the plaintiff. A new trial having been awarded the defendants under the statute, a verdict was rendered in their favor on the next trial, which, on motion of the plaintiff, was set aside, and a new trial awarded to him under the statute. This trial resulted in favor of the defendants, and judgment entered against the plaintiff for costs. To reverse this judgment the plaintiff brings the record here, and assigns several errors.

No question is made, on the argument, of the sufficiency of plaintiff's title to the land in controversy. He deduces his title by unquestioned conveyances from the United States, but the defendants take the ground that the possession of the railroad company can not be attacked in the action of ejectment. This is the broad ground assumed in the defense.

It is also insisted by the defendants that they are in possession of the land by a regular condemnation of the same, under the statute, for the use of their railroad. No question is made that defendants are a railroad corporation, with power to condemn or otherwise acquire land for their purposes; nor is it questioned that they might legally occupy the land by lease or other authority from any other railroad company having acquired authority from the owner, or by proof of condemnation. The plaintiff takes the ground that the land has never been condemned by any railroad company, nor a right to it obtained from any person competent to grant it. It appears the defendants claim whatever rights they may have in the land in controversy, in virtue of certain proceedings instituted by the Belleville and Illinoistown Railroad Company, a corporation created by the act of the general assembly of this State, approved June 21, 1852.

It appears, from the record, that this corporation did, in 1854, institute proceedings to condemn this land, the notice being given to Matthew Kerr as the then supposed owner, when he was not such owner, he having conveyed his title in 1852, the deed of which was on record in the proper county in December of that year. The question of condemnation is therefore removed from the controversy.

It is insisted by appellees, very strenuously, that the railroad company, being in the actual possession of the land on which they have constructed a track, and are running cars upon it for the public convenience, are not subject to an action of ejectment. The proposition is, when the general assembly, in conferring the right of eminent domain for works of public use, authorize an act or a series of acts to be done, the natural consequence of which will be injurious to third persons, and prescribe a mode for assessing damages for those injuries, an action of tort will not lie at common law, but the statutory remedy must be pursued. Numerous authorities, English and American, are cited in support of the proposition.

We have no disposition to controvert these authorities, and concede, if a statute has given a remedy to land owners for injuries sustained by taking land for railway purposes, such remedy is, in general, exclusive, and not cumulative merely. But we fail to see the application of this principle to the case before us. This is not an action for injury to the land of the plaintiff by entering upon it for a fleeting or temporary purpose in order to make preliminary surveys, and such like purposes. In such cases, we think, under the authorities cited, the remedy provided by statute, if one was provided, must be pursued. We agree with Justice PARKER, in Stearns v. Middlesex Canal Co. 16 Mass. 466, that, when railroad corporations act lawfully under their charters, they will not subject themselves to an action for an injury, but, so far as they can not lawfully act, they ought to refrain from acting; that, whenever lawful authority is given to take property for public use, the act is justifiable.

This is upon the ground that the statute conferring authority has been complied with. In such case, there can be no injury to the rights of the party, and therefore no action, as for a tort, can accrue. As the learned judge says, recompense is made for what is legally taken, and the party can not complain that a wrong is done, for his property is taken according to the laws of the land. Unfortunately for appellees, they have not legally taken appellant's land. The power to do so has not been exercised by the company. No proceedings were ever commenced against the owner to justify the entry upon his land, building a railroad upon it, and using it for such purpose. We are at a loss to understand why ejectment will not lie in such case, unless it is conceded such...