The Chicago v. the Chicago

• Decision Date: 17 November 1884
• Citation: 1884 WL 10029,112 Ill. 589
• Parties: THE CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.THE CHICAGO AND EVANSTON RAILROAD COMPANY.
• Court: Illinois Supreme Court

112 Ill. 589

1884 WL 10029 (Ill.)

THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY

v.THE CHICAGO AND EVANSTON RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

On the 7th of July, 1883, the Chicago and Evanston Railroad Company filed in the Superior Court of Cook county a petition to condemn, for railroad purposes, a triangular piece of land lying on the west side of the north branch of the Chicago river, and on the north side of Kinzie street, in the city of Chicago, having an eastern front on the river of one hundred and three feet, and a southern front on Kinzie street of seventy-two and five-tenths feet. The land in question belonged to the Chicago and Northwestern Railway Company, the defendant in the petition. On the 24th of September following, the defendant filed a plea in abatement in the cause, to which the court sustained a demurrer. The defendant subsequently, on the 12th of March, 1884, filed a motion, supported by affidavits, to dismiss the petition, on the ground the petitioner had no right to take the property for the purposes set forth in the petition. This motion was overruled. On the 7th of April, 1884, the defendant filed an answer to the petition, and also a cross-petition, setting up that it owned a large amount of real estate contiguous to and in the immediate vicinity of that sought to be taken, particularly that lying immediately north of it and fronting on the Chicago river; also, that its own road, and railroad interests and business generally, would be seriously injured by the taking of that particular piece of land and using it in part for the site of a bridge to be built across the river at that place, as was proposed to be done by the petitioner. Various other matters relied on as showing the Chicago and Northwestern Railway Company would be specially injured by condemning the land for the purposes proposed, not necessary to be noticed in this statement, were offered.

The trial commenced on the 9th and ended on the 15th of April, 1884, resulting in the assessment of the damages of the Chicago and Northwestern Railway Company at $28,000, upon which final judgment was entered by the court, and the defendant appealed. The instructions given to the jury in the case are as follows:

On the court's own motion:

“In this case the jury are to determine what will be just compensation to the respondent, the Chicago and Northwestern Railway Company, for its property taken or damaged by the appropriation of the piece of land described in the petition, to be used by the petitioner for the purpose of its railroad, including the erection thereon, on a part thereof, of an abutment for a railroad bridge across the north branch of the Chicago river, and the use of this abutment in operating or swinging such bridge. Such compensation for the land actually to be taken should not be less nor more than the fair market value, on the 7th of September, of the land thus described, considered as a part of the lot 1 from which it will be taken. The jury are also to determine, from the evidence, whether, in addition to such market value, damages should be awarded to the respondent, and if so, what amount of damages. In determining the latter question, the jury should consider all the evidence relating to the extent of the respondent's entire lines of road terminating in Chicago, and its business transacted over the same, and its entire dock or wharf property, and, generally, its entire real property constituting its terminal facilities at Chicago, on the 7th day of July last. And if the jury find, from the evidence, that this piece of land proposed to be taken, in the condition in which it was on the 7th day of July last, did constitute such a material portion of such terminal facilities that by taking the same the respondent will necessarily be substantially inconvenienced and damaged in the operation of its lines of road, then the jury should award such damages therefor as the evidence in this regard shall warrant; but if the jury shall believe, from the evidence, that no such inconvenience or injury will necessarily be thus caused, then no such damage should be awarded. And in this connection the jury are instructed that nothing should be allowed for merely imaginary or speculative damages, or for such remote or inappreciable damages as the imagination may conjure up, and which may or may not occur in the future. In considering this question of damages, the jury should also consider the evidence relating to the effect upon the wharfing rights attached to the respondent's land adjoining and extending northerly from the land described in the petition, by the building of such abutment, and its use in operating the contemplated railroad bridge. And inasmuch as the petitioner has presented in court, upon this trial, a plan of bridge as the one adopted by it, and has stipulated that the contemplated bridge shall be constructed upon such plan, the question for the jury to determine is, whether the operation of such bridge by the petitioner, in conducting its railroad business, will substantially interfere with such moorage rights, and if so, to what extent, and what amount of damages will be thus occasioned to the respondents; but if the jury shall find, from the evidence, that such operation and use of such a bridge will not materially interfere with such moorage rights, then no damages should be awarded in this respect. The jury are further instructed, that in determining these questions of compensation and damages, they should proceed upon the knowledge which they may have derived by view of the property in question, with its surroundings, together with a consideration of all the evidence, including the opinions of witnesses, which has been introduced on this trial; and though it is the duty of the jury to fairly consider and weigh such opinions, they are not bound to take them as true and correct, or to accept them as conclusive, but should exercise their own judgment, upon consideration of the whole case.”

Petitioner's third instruction:

“The court further instructs you, that though the market value of the property sought to be taken is the sum that the respondent is entitled to recover as damages for the land actually taken, (if you find, from the evidence, that such land had a market value,) still all evidence tending to establish that sum should be considered; but your inquiry should be confined to the market value of the property sought to be taken, on the 7th day of July, 1883, if you believe, from the evidence, that such land had a market value at said date. And the purposes for which such property was used before and at that date, and designed, its location and advantages as to situation, are proper matters of consideration by the jury.”

Defendant's third instruction:

“And in determining the compensation to be awarded to the defendant, the jury are to consider the use and adaptability for railroad purposes of the property in controversy, whether as a part of the terminal facilities of the defendant, or otherwise, as disclosed by the evidence; and the jury may consider, for the purpose of ascertaining the capacity and adaptability of the premises for railroad uses, the nature and amount of business transacted by the defendant thereon, as well as the facilities afforded by said premises for transacting such business, now and in the future.”

Mr. B. C. COOK, and Mr. MELVILLE W. FULLER, for the appellant:

The petition must show on its face every fact necessary to the exercise of the right of eminent domain. Smith v. Railroad Co. 105 Ill. 518.

A corporation has only such powers as are expressly given, or are necessarily implied from those given. Caldwell v. City of Alton, 33 Ill. 416; Chicago v. Rumpff, 45 Id. 90; People v. Clerk of Board of Trustees, 45 Id. 112.

For every corporate act, authority therefor must be found in a grant or a requirement of a statute. Webster v. People, 98 Ill. 347; Bank v. Godfrey, 23 Id. 602; Thomas v. Railroad Co. 11 Otto, 82; Railroad Co. v. Railroad Co. 11 C. B. 775; Railroad Co. v. Hawk, 5 H. L. Cases, 331.

This rule is applied in all its rigor when an attempt is made to construe a corporate grant so as to interfere with a previous grant of the same kind. Pennsylvania Railroad Co.'s Appeal, 93 Pa. St. 159; 3 Am. & Eng. R. R. Cases, 507.

A charter will not be so far stretched as to allow the taking of corporate franchises, unless absolutely essential to the carrying out of the purposes which the legislature has contemplated. Matter of City of Buffalo, 68 N. Y. 167; Hickock v. Hine, 18 Ohio St. 92; Matter of Ninth Avenue, 45 N. Y. 729; Bridgeport v. Railroad Co. 36 Conn. 255; Railroad Co. v. Faribault, 23 Minn. 167; Bridge Co. v. Middlesex, 10 Pick. 270; Railroad Co. v. Railroad Commissioners, 118 Mass. 561; The State v. Noyes, 47 Maine, 189; Green's Brice's Ultra Vires, (2d Am. ed.) 377; Rex v. Pease, 4 B. & A. 30; Regina v. Railroad Co. L. R. 2 Q. B. 310; Attorney General v. Railroad Co. L. R. 4 Ch. App. 194; Pugh v. Railway Co. L. R. 12 C. A. Div. 274; New York City v. Telegraph Co. 21 Hun, 261; The State v. Railroad Co. 35 N. J. L. 328.

If the powers of the subsequent charter can by reasonable intendment be exercised without the appropriation of property actually held and used for another public use, it must be done. Mills on Eminent Domain, 46; Railroad Co. v. Railroad Co. 75 Va. 780; Proprietors of Locks and Canals v. City of Lowell, 7 Gray, 226; Railroad Co. v. Railroad Co. 35 Mich. 265; Railway Co. v. Railway Co. 81 Ill. 583; Hatch v. Railroad Co. 18 Ohio St. 119.

The court erred in refusing to require the petitioner to file a plan or specification of the bridge across the north branch of the Chicago river, as a basis for determining the compensation to be paid. Railroad Co. v. Kirby, 21 Ill. 121; Railroad Co. v. Railway Co. 105 Ill....