The Chicago & Pac. R.R. Co. v. Stein

• Decision Date: 30 September 1874
• Citation: 1874 WL 9185,75 Ill. 41
• Court: Illinois Supreme Court
• Parties: THE CHICAGO & PACIFIC RAILROAD COMPANYv.SOLOMON STEIN et al.

75 Ill. 41

1874 WL 9185 (Ill.)

THE CHICAGO & PACIFIC RAILROAD COMPANY

v.SOLOMON STEIN et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

This was an action on the case, brought by Solomon Stein and Morris M. Hirsh, partners, etc., against the Chicago & Pacific Railroad Company. The material facts are stated in the opinion of the Court.

Messrs. SAWIN & WELLS, for the appellant.

Messrs. WOOD & LOOMIS, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by appellees, in the circuit court of Cook county, against the Chicago & Pacific Railroad Company to recover damages claimed to have been sustained by reason of the construction and maintenance of a bridge, its piers and protections, by appellant, across the north branch of the Chicago river.

A trial of the cause was had before a jury, which resulted in a verdict and judgment against the railroad company for $2,692.51.

The declaration originally contained two counts in case. After the evidence had been introduced and the cause in part argued before the jury, appellees asked and obtained leave to file an amended count to the declaration. A count in trespass was prepared and filed; appellant entered a motion for a continuance, which the court overruled. The decision of the court in allowing the amendment and denying a continuance is the first question presented by appellant for consideration.

By the 23d section of the act in regard to practice in courts of record (Laws of 1871-2, p. 342), it is provided that in a civil suit, at any time before final judgment, amendments may be allowed on such terms as are just and reasonable, introducing new parties, changing the form of action, and in any matter of either form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense.

By sec. 25 of the same act it is declared that no amendment shall be a cause for continuance unless the party affected thereby, or his agent or attorney, shall make affidavit that in consequence of the amendment he is unable to proceed with the trial at that term, and that he believes if the cause is continued he will be able to make such preparation.

Under this statute it was proper for the court to allow the amendment to the declaration, and as appellant failed to file an affidavit, as required by the act, for a continuance, the motion entered to continue the cause was properly overruled.

Appellees' property, claimed to have been damaged by the erection of the bridge, lies fronting upon the river opposite where the bridge was built, and it is insisted by appellant, as it is averred in two counts of the declaration, that the river is a public, navigable stream, and as the bridge was built under the power conferred on the railroad company by the State, with permission from the city of Chicago, the municipality within which the river runs, any consequential damage resulting from the erection of the bridge must be regarded as damnum absque injuria. In the amended count of the declaration it is not averred that the river is a public, navigable stream, and the navigable qualities of the river were clearly proven by the evidence introduced upon the trial, from which there can be no pretense that the north branch of the Chicago river will fall within the common law definition of a navigable stream.

The authorities therefore cited by the attorneys for appellant upon this branch of the case, while they might be conclusive upon the right of recovery of a riparian proprietor on a river navigable at common law, have no application to the case at bar.

In case of The People v. The City of St. Louis, 5 Gilm. 351, it was held that while the State possessed the power to change the current of the Mississippi river, or even stop up some of its confessedly navigable channels when necessary for the welfare of the State, yet, if in doing this, private property should be damaged, compensation would first have to be made for that.

In the case of Middleton v. Pritchard, 3 Scam. 510, it was held that the owner of land bounded by a stream not navigable in the technical sense of the term, held the land to the center of the thread of the stream, and that the water and the soil under it were exclusively that of the riparian owner to that point.

In Canal Trustees v. Haven, 11 Ill. 554, this court held that, by the common law, a grant of land bordering upon a highway or river, carried the exclusive right and title in the highway or river to the center thereof, subject to the right of passage in the public, unless the terms of the grant clearly indicated an intention on the part of the grantor to confine the grantee to the edge or margin. In City of Chicago v. Laflin, 49 Ill. 172, it was...