Terre Haute & P.R. Co. v. Robbins

• Decision Date: 21 December 1910
• Citation: 93 N.E. 398,247 Ill. 376
• Court: Illinois Supreme Court
• Parties: TERRE HAUTE & P. R. CO. v. ROBBINS et al.

247 Ill. 376

93 N.E. 398

TERRE HAUTE & P. R. CO.

v.ROBBINS et al.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Macon County Court; O. W. Smith, Judge.

Petition by the Terre Haute & Peoria Railroad Company against H. F. Robbins and others for the condemnation of property for railroad purposes. Petition dismissed, and petitioner appeals. Reversed and remanded.

Outten, Roby, Ewing & McCullough, for appellant.

Hugh Crea, Hugh W. Housum, and Whitley & Fitzgerald, for appellees.

CARTER, J.

This was a petition brought in the county court of Macon county by the Terre Haute & Peoria Railroad Company, appellant, to condemn certain property in the city of Decatur for the purpose of building thereon a freight depot. On a preliminary hearing before the court as to the right and authority of the petitioner to condemn the property in question, the court, on motion of appellees, dismissed the petition, holding that on the petition and evidence then beforethe court appellant was without such authority. This appeal was thereupon prayed and allowed.

January 17, 1887, petitioner was granted a charter to construct and operate a railroad from Peoria, Ill., to a point on the eastern boundary of said state in Clark county, the line as constructed between these two points to pass through Decatur, in Macon county. It is now operating, through its lessee, the Vandalia Company, a railroad between these two points, and thence eastward to Terre Haute, Ind. From Maroa, a city in Macon county about 12 miles north of Decatur, to Decatur Junction, some two miles south of Decatur, appellant has not constructed and does not now own a track of its own, but has an agreement with the Illinois Central Railroad whereby the trains of appellant are permitted to be operated between Maroa and Decatur Junction, and through said city of Decatur, over the track of said Illinois Central Railroad Company, the latter company also using said tracks for its own railroad business. At Maroa, and also at Decatur Junction, the tracks owned by appellant connect with the Illinois Central Railroad, and by its contract arrangements with the latter company appellant has a continuous line of railroad from Peoria, Ill., to the Illinois state line and thence to Terre Haute. Appellant has a freight house and team tracks in the city of Decatur which the testimony tends to show are inadequate because of restricted room, location, and surroundings to meet its convenient and effective operative demands. In order to enable it to perform its duties as a railroad and common carrier of freight it has sought a new location in the city of Decatur for the purpose of constructing a new freight house and team tracks and the necessary approaches, and has expended some $26,000 in acquiring property, but has been unable to agree with appellees as to the fair cash market value of the property owned by them and desired by appellant for this improvement.

The chief contention of appellees as showing that appellant is without power to condemn the property in question is that appellant does not own the tracks and right of way upon which it is operating between Maroa and Decatur Junction. No question is made as to appellant being duly incorporated under the laws of this state and thereby authorized to condemn property for railroad purposes. To support their contention that appellant is without authority to condemn this property, appellees allege that appellant has been incorporated for 23 years, and long since, under the obligations placed upon it by its charter and the statutes, should have obtained the right of way over the 14 or 15 miles between Maroa and Decatur Junction. In Morrison v. Forman, 177 Ill. 427, 53 N. E. 73, it was argued that a railroad company could not condemn certain property because it had failed to finish its road within 10 years from the filing of its articles of incorporation, and therefore, under section 26 of the act on railroads (Hurd's Rev. St. 1909, c. 114, § 28), its authority to condemn had ceased. This court overruled that contention, stating (page 429 of 177 Ill.,page 74 of 53 N. E.): ‘In a proceeding for the condemnation of real estate for railroad uses the question of the de jure existence of the company cannot be determined. It is sufficient that the statute authorized the organization of the corporation, and that the petitioner is a corporation de facto. Whether or not it has a legal existence as a corporation can only be determined by a direct proceeding-the writ of quo warranto.’ To the same effect are Thomas v. South Side Elevated Railroad Co., 218 Ill. 571, 75 N. E. 1058;Thomas v. St. Louis, Belleville & Southern Railway Co., 164 Ill. 634, 46 N. E. 8;Chicago & Eastern Illinois Railroad Co. v. Wright, 153 Ill. 307, 38 N. E. 1062;McAuley v. Columbus, Chicago & Indiana Central Railway Co., 83 Ill. 348.

Railroad companies incorporated or organized under the laws of this state have the power to make contracts and arrangements with each other, and with railroad corporations of other states, for leasing or renting their roads or any part thereof, and also to contract for and hold, in fee simple or otherwise, lands or buildings in this or other states for depot purposes. Such companies also are authorized to connect with each other and with the railroad of other states on such terms as may be mutually agreed upon. Hurd's Rev. St. 1909, c. 114, §§ 44, 45, p. 1745; Illinois Midland Railway Co. v. People, 84 Ill. 426;Lake Shore & Michigan Southern Railway Co. v. Baltimore & Ohio & Chicago Railroad Co., 149 Ill. 272, 37 N. E. 91. Railroads may thus be united and merged into a single line or two companies may arrange for the joint use of the same tracks. Illinois Central Railroad Co. v. Chicago, Burlington & Northern Railroad Co., 122 Ill. 473, 13 N. E. 140. The contract between appellant and the Illinois Central Railroad Company for the use of the latter's right of way and tracks between Maroa and Decatur Junction, executed on November 14, 1894, for the period of 25 years, can be ended by either party on one year's notice. The law does not requires a railroad company to acquire, by condemnation, all the lands...