Stephens v. Chicago, B.&Q.R. Co.

• Decision Date: 19 April 1922
• Docket Number: No. 13451.,13451.
• Citation: Stephens v. Chicago, B.&Q.R. Co., 303 Ill. 49, 135 N.E. 68 (Ill. 1922)
• Court: Illinois Supreme Court
• Parties: STEPHENS et al. v. CHICAGO, B. & Q. R. CO. et al.

303 Ill. 49

135 N.E. 68

STEPHENS et al.

v.CHICAGO, B. & Q. R. CO. et al.

No. 13451.

Supreme Court of Illinois.

April 19, 1922.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Williamson County; D. T. Hartwell, Judge.

Bill by Alfred Stephens and others against the Chicago, Burlington & Quincy Railroad Company and another for an injunction.The decree for plaintiffs was reversed and remanded by the Appellate Court(217 Ill. App. 1), with directions to enter a decree for part of the relief asked, and defendants bring certiorari.

Reversed and remanded, with directions.

(Per Duncan, J.)J. A. Connell, of Chicago, and W. O. Potter, of Marion (R. B. Scott, of Chicago, of counsel), for plaintiffs in error.

H. V. Ferrell and E. M. Spiller, both of Marion, for defendants in error.

DUNN, J.

The commissioners of highways of the town of West Marion, in Williamson county, filed their bill in the circuit court of that county on August 17, 1917, against the Chicago, Burlington & Quincy Railroad Company and the Herrin & Southern Railroad Company, for an injunction requiring the defendants to remove certain obstructions which the bill alleged constituted and were a public nuisance, from a highway, to restore the highway to its condition before the obstructions were placed in it, and enjoining the defendants from maintaining such obstructions.Upon the appeal of the defendantsthe Appellate Court reversed the decree of the circuit court, which granted the relief prayed for, and remanded the cause, with directions to enter a modified decree for a part only of the relief asked, and a writ of certiorari was allowed on the petition of the railroad companies for the purpose of reviewing the record.

The plaintiffs in error offered no evidence, and the cause was submitted on the evidence of the defendants in error, which showed these facts: About January 1, 1913, the Herrin & Southern Railroad Company constructed, and the Chicago, Burlington & Quincy Railroad Company under agreement with the former company has since that time operated, a railroad in the town of West Marion, which crossed, about 2 1/4 miles west of the city of Marion, the Marion and Carbondale road, which has been public highway of the width of 50 feet for 50 years.It is an overhead crossing, and the railroad track was supported by three rows of six posts, about 12 inches in diameter; the center row being in the center of the highway and of the traveled track, and the other rows north and south, respectively, and 19 feet distant from the center row.After the construction of the railroad a concrete hard road was constructed from the city of Marion west to a point 2 miles west of the crossing, with the exception that such concrete road was not constructed under the railroad and for a space of about 38 feet on either side of it.The circuit court found that the three rows of posts constituted a material and substantial obstruction to the free passage of persons, in vehicles or otherwise, lawfully having a right to travel over the highway, and decreed that defendants remove them within 60 days and restore the highway at the crossing to as good condition as when the posts were placed in the highway, and that the defendants be perpetually enjoined from maintaining the posts in the highway after 60 days.The Appellate Court reversed the decree and remanded the cause, with directions to enter a decree ordering the plaintiffs in error to remove the center row of posts within 6 months from the date of the decree, and to restore that portion of the highway to as good condition as it was in when the posts were placed there, and enjoining the plaintiffs in error from thereafter maintaining said center row of posts.

The jurisdiction of the circuit court of the subject-matter of this suit cannot be questioned and is not in controversy.The Constitution confers upon the circuit court jurisdiction of all causes in equity, and the Legislature is without power to deprive it of any part of this jurisdiction.A court of equity has jurisdiction to enjoin the creation or compel the abatement of a public nuisance at the suit of the Attorney General or other authorized public official, or of an individual to whom or to whose property it causes or will cause a special and particular injury, as well as a private nuisance at the suit of the injured person.An unauthorized obstruction of a public highway is a public nuisance, and it is within the jurisdiction of a court of equity to grant relief by injunction for the prevention or removal of such obstruction at the suit of the proper officials in behalf of the public or of an individual who is directly and specially injured by the obstruction.Fors v. Anderson, 270 Ill. 45, 110 N. E. 361;Green v. Oakes, 17 Ill. 249.

The chief question argued is the right of the highway commissioners to maintain the suit, the plaintiffs in error contending that the Public Utilities Act(Hurd'sRev. St. 1921, c. 111a) in force when the suit was brought, and since, deprived the highway commissioners of any authority to represent or act for the public in respect to highways at railroad crossings and placed the entire subject-matter of such crossings in the hands of the Public Utilities Commission.At the time the overhead crossing involved in this case was constructed, and until July 1, 1913, the highway commissioners had charge of the roads and bridges in their respective towns, and by paragraph 5 of section 19 of the Railroad Incorporation Act(Hurd'sRev. St. 1921, c. 114, § 20) every corporation formed under the act was authorized to construct its railway across any highway which its route intersected, subject to the duty of restoring the highway to its former state, or to such state as not unnecessarily to have impaired its usefulness.This was an absolute grant of power by the state to the railroad company to construct its road across any highway, and no consent of the highway commissioners was required; such consent being necessary only where the railroad was to be constructed along-that is, lengthwise-of the highway.County of Cook v. Great Western Railroad Co., 119 Ill. 218, 10 N. E. 564.The right of crossing the highway was subject to the condition that the company should restore the highway so as not unnecessarilyto impair its usefulness, and this court suggested in Chicago General Railway Co. v. Chicago, Burlington & Quincy Railroad Co., 181 Ill. 605, 54 N. E. 1026, that an unnecessary obstruction caused by the construction of an overhead crossing could be enjoined in a suit on behalf of the public.

In 1913 the law in relation to roads and bridges was codified, revised, and amended.Laws of 1913, p. 521.Paragraph 6 of section 50 of the revised act provided that the highway commissioners should have general charge of the roads and bridges of their respective towns or districts and keep them in repair and improve them so far as practicable.This was a re-enactment, with slight change of diction, of the previous law, but article 2 of the act created a state highway department and state highway commission, and provided that the state highway commission should have general supervision of highways and bridges constructed, improved, or maintained, in whole or in part, by the aid of state moneys.This article provided for the method of construction of roads by the aid of state moneys, and required such roads and bridges to be kept in repair by the state highway commission at the cost of the state.State-aid roads were thus specifically excluded from the general charge of the highway commissioners and transferred to the state highway commission.At the same session of the Legislature the Public Utilities Act was passed, section 58 of which prohibited the construction of new grade crossings of highways by railroads but expressly declared that the section should not apply to the replacing of existing crossings.In 1917these acts were both amended-the Road and Bridge Act to provide for the election of one highway commissioner, instead of three; the Public Utilities Act to bring under the control of the Public Utilities Commission any railroad highway crossing, whether at grade, overhead, or by subway.The amendment in question of the Public Utilities Act consisted of the addition to section 58, among other things, of the following:

‘The commission shall also have power by its order to require the reconstruction, alteration, relocation or improvement of any crossing (including the necessary highway approaches thereto) of any railroad across any highway or public road, whether such crossing be at grade or by overhead structure or by subway, whenever the commission finds after a hearing that such reconstruction, alteration, relocation or improvement is necessary to preserve or promote the safety of the public or of the employees or passengers of such railroad.By its original order or supplementai orders in such case, the commission may direct such reconstruction, alteration, relocation or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary, and may apportion the cost of such reconstruction, alteration, relocation or improvement between the railroad company or companies and other public utilities affected, or between such company or companies and other public utilities and the state, county, municipality, or other public authority in interest.The cost to be so apportioned shall include the cost of changes or alterations in the equipment of other public utilities affected as well as the cost of the relocation, diversion or establishment of any public highway, made necessary by such reconstruction, alteration, relocation or improvement of said crossing.’

Since both of these acts, originally passed at the same session of the Legislature, were amended subsequently at the same session of the Legislature, they must be construed together as one act, so far as they relate...