The Indianapolis v. Hartley

• Decision Date: 31 January 1873
• Citation: 67 Ill. 439,1873 WL 8232,16 Am.Rep. 624
• Parties: THE INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILROAD COMPANYv.WILLIAM HARTLEY et al.
• Court: Illinois Supreme Court

67 Ill. 439

1873 WL 8232 (Ill.)

16 Am.Rep. 624

THE INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILROAD COMPANY

v.WILLIAM HARTLEY et al.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

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

This was an action of trespass, by William Hartley and Alley Hartley, against the appellant, for breaking and entering the close of the plaintiffs, excavating therein without their consent, and constructing and laying down thereon a railroad track, and thereafter operating the same, and by so doing permanently injuring and damaging the plaintiffs' close, and preventing the plaintiffs from the reasonable use and enjoyment of the same.

A trial was had, resulting in a verdict and judgment in favor of the plaintiffs for $1800. The other material facts of the case are stated in the opinion.

Messrs. WELDON & BENJAMIN, and Mr. J. C. BLACK, for the appellant.

Mr. M. W. PACKARD, and Mr. H. SPENCER, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The land upon which the alleged trespasses were committed was never platted or laid off as a part of or of any addition to the city of Bloomington, but is within its corporate limits, and was so situated at the committing of the grievances complained of in the declaration.

Prior to the extension of the city limits a public highway, known as the ““Peoria road,” had been established on the south side of the premises in controversy, of the width of sixty feet, one-half being on the land now owned by appellees. After the limits of the city had been extended so as to include this tract of land, which was done some fifteen or twenty years ago, the highway over which the public had exercised jurisdiction for so many years, at that point was called Front street, being a continuation, by common consent, of a street of that name to the western boundary of the city, and by dedication, or common user, it was made fourteen feet wider than the old road, but whether any portion of the fourteen feet came off the premises owned by appellees does not very clearly appear, nor is it very material. The city neither purchased nor condemned the additional number of feet added to the street. There was no ordinance formally extending Front street westward, but the city assumed and continued to exercise jurisdiction over the highway as a street the same as other streets in the city.

Under the authority given by the city, by ordinance, to lay the track upon and across any street or alley within certain limits, appellant constructed its road diagonally across Front street, south of appellees' premises, without their consent. In constructing the road bed appellant caused the street to be excavated to the depth of four or five feet. The track nowhere touches the land in the inclosure of appellees, but comes within six inches or a foot of it at one corner, and if they own to the center of the old highway, then it is constructed on land the fee of which is in them.

The excavation in the street made it necessary to lower the grade in front of the premises of appellees, and in doing so the company removed a large amount of earth. This latter work appears to have been done by the company under the direction of the street commissioner, so as to have an even grade on which the public travel could more conveniently pass over the track.

The premises of appellees had previously been above the grade of what is called Front street, but the construction of the company's road across the street, and the grading that was necessary to be done to get an even grade, left them still very much higher, and rendered ingress and egress more difficult for carriages and even for persons on foot.

It can not be successfully contested that appellees owned the fee of the land to the center of the old highway. It was never conveyed to the city by any formal grant, by plat or otherwise. The adjoining proprietors never parted with the fee. Had they platted the grounds into lots and streets, under the statute the plat itself, when recorded, would have operated as a grant of the fee to the corporation. This they did not do. The city could and did acquire an interest in the street, although the grounds were never set apart for that specific purpose, in the manner prescribed in the statute. It may be by dedication, or common user, and in such cases the fee would remain in the original proprietors, burdened with a public easement. Canal Trustees v. Haven, 11 Ill. 554; Hunter v. Middleton, 13 Ill. 54; Manly v. Gibson, 13 Ill. 308.

It is not questioned the city had granted appellant the necessary authority to construct its road across the street, and the principal question in the case is, whether the State and the municipal authorities combined have the power to grant the company the right to construct its track across lands the fee of which is in appellees, without obtaining their consent or making compensation.

On the one hand, it is insisted appellees' proprietary rights have been interfered with, and that the action of the company in taking possession of the lands comes within the constitutional inhibition that private property shall not be taken for public use without just compensation. On the contrary, it is claimed that it is immaterial whether the city owns the fee of the street or not; the municipal authorities have the supreme control over all streets, and can grant the right to lay a track on or across any street, and having done so in this instance, if...