The Ill. Cent. R.R. Co. v. the City of Bloomington.

• Decision Date: 31 January 1875
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.THE CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

76 Ill. 447

1875 WL 8224 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.THE CITY OF BLOOMINGTON.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action on the case, by the city of Bloomington, against the Illinois Central Railroad Company. All the material facts of the case are stated in the opinion of the Court.

Messrs. WILLIAMS, BURR & CAPEN, for the appellant.

Mr. IRA J. BLOOMFIELD, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The railroad was built through the corporate limits of the city of Bloomington in the year 1852. When built, Chestnut street, which runs at right angles with the railroad, did not reach it by a half mile or more. The railroad ran on the line dividing the lands owned by Flagg and Davis. The company, before building their road, condemned the right of way over Flagg's, and Davis gave the right of way over his ground. Their lands were, at that time, used for farming purposes, but were within the city limits, until an addition was laid out in 1871. By several additions to the city, the streets were extended, and Chestnut street crossed the railroad.

Davis and Flagg gave the city, by conveyance, the right of way across the railroad, and its right of way. The city thereupon, by ordinance, directed the street to be opened, and required the railroad company to make a proper and safe crossing by grading the approaches of the street at the crossing. This, the company refused to do, and the city thereupon did the grading and constructed the crossing, which cost $634.25, and the city brought suit against the company to recover that sum expended in making the crossing. On a trial, a jury was waived, and a trial had by the court. There being no contest as to the price paid for the work or the manner in which it was performed, the only question being whether the company was, under the facts in the case, liable to construct the crossing, the court found they were, and rendered judgment for the amount claimed. This appeal is brought, and questions the decision of the court below.

We are of opinion that appellee states the real question in controversy correctly when he says that the question is, whether it is within the power of the legislature to require existing railroad companies to construct suitable and proper crossings for streets and highways which are laid or extended across their tracks after they have graded and built their railroads. We do not see that any question was raised in the court below as to the right of the city to open this street over and across their right of way. We shall, therefore, omit all discussion of that question, and confine ourselves to the main question in the case.

That the General Assembly may, in granting a charter to a railroad company, impose, as a condition, that all such companies shall restore existing streets and highways across which the railroad shall run, to their former condition, as near as may be, would seem to be a proposition that admits of no doubt. And it is equally true that, if their charters were to contain a provision that they should so construct crossings over roads and streets subsequently located and opened, such a provision would be binding. And if the General Assembly were to provide, by general law, that railroad companies should make and keep up such structures at crossings when the road is built, as well as those that might be thereafter laid out and opened, all railroads subsequently constructed would be compelled to conform to the requirement unless exempted by their charters.

But the charter of the company contains no such provision, nor does the 25th section of the general railroad law of 1849 make such a requirement. (Laws 2d Sess. p. 28.) Nor has appellee referred us to any such provision in existence when this road was located and constructed.

Counsel for the city relies upon the provisions of the city charter, passed the 13th of February, 1861. The 20th paragraph of section 22 empowers the city, by ordinance, “To require railroad companies * * * to construct and keep in repair, and unobstructed, suitable crossings at...