Stetson v. the Chicago
| Decision Date | 30 September 1874 |
| Citation | 75 Ill. 74,1874 WL 9192 |
| Parties | SPRAGUE S. STETSONv.THE CHICAGO AND EVANSTON RAILROAD COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Cook county.
This was a bill in chancery, by Sprague S. Stetson against the Chicago and Evanston Railroad Company, for an injunction.
Messrs. HITCHCOCK & DUPEE, for the plaintiff in error. Messrs. GOUDY & CHANDLER, for the defendant in error.
Under a special charter, and by permission of the city of Chicago granted by ordinance, the Chicago and Evanston R. R. Co. constructed its railroad upon Southport avenue in front of a block of ground owned by complainant, which had been subdivided into lots, some of which fronted on the avenue, with a view to use cars on its road propelled by steam. No part of complainant's land had been taken for the use of the road. The right to relief is predicated on the alleged fact, the construction of the railroad track had depreciated and decreased the value and price of lots fronting on the avenue; that the running of trains of cars and locomotives would further diminish the value and price of lots, and would render access inconvenient and difficult. A motion for a preliminary injunction was denied, and a demurrer having been sustained to the bill, it was dismissed for want of equity.
No direct or physical injury has been done to complainant's property. The track was constructed wholly upon the street, the fee of which is in the city of Chicago. It may be regarded as the settled law of this State, an owner of an abutting lot cannot prevent the use of a street for a railway when such use is permitted by the city and is authorized by an act of the legislature It is equally well settled, the abutting owner is not entitled to any compensation for the new use of the street. Moses v. The Pitts., Ft. Wayne & Chic. Ry. Co., 21 Ill. 522; Murphy v. Chicago, 29 ib. 280.
The doctrine of these cases in this particular has not been departed from, but on the contrary, has been expressly affirmed in the recent case of Stone v. Fairbury, Pontiac & N. W. Ry. Co., 68 Ill. 394. The principle is, the adjoining proprietor has no interest in the fee of the street and therefore cannot recover for an injury to it. Where the fee of the street, however, remains in the abutting land owner a recovery has been permitted, for the reason the railroad is an additional burden, on the principle, if the land was dedicated, it was for the use of ordinary travel, and if it was condemned, the damage was assessed with no other view. Ind., Bloomington & Western R. R. Co. v. Hartley et al. 67 Ill. 439.
Whatever damages, if any, the complainant has suffered, are consequential, and arise from the lawful use of the adjoining street, in which he has no interest except an easement in common with the public. The question, therefore, of most importance is, whether equity will assume to enjoin the use of the railroad upon the street, until the land-owners' damages shall have been assessed and paid under the eminent domain law, or will he be remitted to his remedy at law. The constitutional provision is, that Manifestly all proceedings for the condemnation of private property for public uses, are at law, and accordingly the general assembly has provided by general law how such proceedings shall be commenced and conducted. Eminent Domain Act, 1872.
The mode of procedure is definitely pointed out. Where the right to take private property for the construction of any railroad or other public use, or which may damage property not actually taken, has been conferred upon any corporate authority, and such corporation cannot agree with the owner as to such just compensation, it is made the duty of the party authorized to take or damage such property to file a petition describing the property, and asking to have the compensation assessed. What construction shall be given to the words in this act, “which may damage property not actually taken,” involves some difficulty, unless they are understood to refer to contiguous lands of the same owner, not actually taken. A portion of the land having been taken, the remainder may be damaged in consequence of the taking. Where the party seeking to make the condemnation has not embraced all of the owner's contiguous lands, not actually taken, but damaged, the owner may file a petition in the nature of a cross petition, and have his damages for land not actually taken assessed in the same proceeding. Mix v. L. B. M. R. R. Co., 67 Ill. 319.
It must be in this sense the word “damaged” is employed in the act to provide for the exercise of the right of eminent domain. The damages are direct and physical, and result from taking a portion of the land. But where no portion of the land is taken, and the damages suffered are consequential, by reason of what the corporation does upon its own land or that of another, it does not seem there is any warrant for instituting proceedings for the ascertaining of such damages. In the case at bar, one allegation in the bill is, the company denies the owner of the adjacent land has sustained any damage, and it seems absurd the company shall be required to file a petition alleging the owner has sustained damage. Without such allegation, what would there be to try? No land is sought to be condemned, and the company contest the fact of consequential damages. Where land itself is taken, it always has some value, and that gives the court jurisdiction of the cause. It would be a singular proceeding if the corporation should file a petition alleging the owner of land in proximity to a public improvement had sustained no damage, and ask the court to adjudicate upon it.
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