The Pittsburg v. Reich

• Decision Date: 10 November 1881
• Citation: 1881 WL 10699,101 Ill. 157
• Parties: THE PITTSBURG, FORT WAYNE AND CHICAGO RAILROAD COMPANYv.MICHAEL REICH.
• Court: Illinois Supreme Court

101 Ill. 157

1881 WL 10699 (Ill.)

THE PITTSBURG, FORT WAYNE AND CHICAGO RAILROAD COMPANY

v.MICHAEL REICH.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.

Appellee, on the 6th of March, 1876, brought his action on the case, against appellant, in the circuit court of Cook county, alleging his damages at $20,000, for injuries to the west half of lot 22, School Trustees' subdivision of section 16, town 38, range 14 east, containing five acres, situated on the north-east corner of Fifty-ninth street and Stewart avenue, by reason of the location and operation of certain railroad tracks on said avenue.

The declaration contains eight counts. The first, second, fourth, fifth and seventh aver, in substance, a wrongful occupation of said avenue with four railroad tracks, so as to render said avenue impassable for vehicles, and depriving appellee of ingress and egress to and from the west half of said lot. The third count avers a wrongful carrying away of 5000 loads of earth from the said avenue, in front of said premises. The sixth count avers that the appellant unlawfully, wrongfully and negligently stored and left standing on said tracks, opposite said premises, and in close proximity thereto, a large number of hog and cattle cars, in a filthy condition, and continued so to do, thereby rendering said premises uninhabitable, etc. The eighth count avers that the appellant so carelessly and negligently managed and operated said road, as that large quantities of cinders, dust and coal were thrown and cast upon said premises, whereby, etc. To all these counts the appellant pleaded, (1,) the general issue, and (2,) the Statute of Limitations, and to all the counts, except the sixth and eighth, it pleaded, (3,) seven years' possession and payment of taxes under claim and color of title, and (4,) liberum tenementum, by virtue of sec. 8, chap. 24, Rev. Stat. 1845. To the fourth plea the appellee replied specially that the land was not subject to taxation.

The cause was tried by the court without the intervention of a jury, and a verdict rendered for the plaintiff, assessing his damages at $2000. Motion for new trial was made upon the grounds:--1. The court admitted improper testimony on the part of plaintiff. 2. The court excluded proper testimony on the part of defendant. 3. The court erred in refusing the propositions of law, and each of them, submitted on behalf of the defendant. 4. The finding of the court is against the evidence. 5. The finding of the court is against the law. But the motion was overruled, and judgment rendered for $2000. An appeal was prosecuted by the defendant from that judgment to the Appellate Court for the First District, and the following errors were there assigned:

First--The circuit court admitted improper testimony on behalf of the appellee.

Second--The said circuit court rejected competent and proper testimony on behalf of said appellant.

Third--The said circuit court erred in refusing to hold the 1st, 3d, 4th, 5th, 8th, 11th, 14th and 15th propositions of law, and each of them, submitted by said appellant.

Fourth--The finding of said circuit court that said Stewart avenue, so-called, is now a public highway, was and is against the evidence, and is erroneous. Fifth--The finding of said circuit court that appellant had no legal right to lay or operate any railroad track on said Stewart avenue, so-called, was and is erroneous.

Sixth--The said circuit court erred in overruling appellee's motion for a new trial.

The Appellate Court, on considering the case, affirmed the judgment of the circuit court. This appeal is also prosecuted by the defendant below to reverse that judgment, on the ground that the Appellate Court erred in affirming the judgment of the circuit court.

The following evidence was agreed to by stipulation of parties: “For the purpose of this suit it is agreed that the north-east quarter of section 16, town 38 north, range 14 east of the third principal meridian, in the town of Lake, in the county of Cook, aforesaid, was school land, and was subdivided by the school trustees, and a plat thereof made before the purchase of lot 22 in said section by said plaintiff; that said plat was not acknowledged or recorded; that a copy of such plat may be received in evidence in this case, with all the force and legal effect of the original, were it in existence, the defendant reserving the right to object to the sufficiency of said original plat, for any purpose, as competent evidence in this case; that the abstract of title to said lot 22, made by Handy, Simmons & Co., dated December 8, 1875, may be offered in evidence by either party without objection; that in 1858 the Pittsburg, Fort Wayne and Chicago Railroad Company, under a deed, duly acknowledged and delivered, from the commissioners of the town of Lake to it, dated May 17, 1858, entered upon a strip of land running north and south through said section 16, and on the west end of said lot 22, called Stewart avenue, or School street, sixty-six (66) feet in width, by putting down its first railroad track opposite said lot 22, and the rails of said track being west of the centre of said so-called Stewart avenue; that on March 2, 1862, this defendant, by deed from Lanier and others, shown in printed book hereinafter referred to, became the owner and possessor of all the right of way and property of said Pittsburg, Fort Wayne and Chicago Railroad Company, as shown by said deed; that in 1869 this defendant, in pursuance of said conveyance to it, put down a second track opposite said lot 22, and east of the centre of so-called Stewart avenue; that in 1874 the defendant, being in possession of said two railroad tracks, under said conveyance last aforesaid, put down two other tracks opposite said lot 22, in said so-called Stewart avenue, one of which was east and the other west of said two tracks already laid, and that said defendant has used and occupied all of said tracks, claiming to be the owner of said so-called Stewart avenue, by operating said tracks with its cars thereon; (all matters contained in a printed book, purporting to be copies of charters, contracts, court proceedings, etc., relating to the creation and existence of said defendant as a corporation, are correct copies of the original documents, and may be offered in evidence the same as the originals, subject to objection as to their competency or relevancy in this case;) that the defendant, the Pittsburg, Fort Wayne and Chicago Railroad Company, has, ever since May, 1858, made returns, in accordance with law, to the proper officers, of all its real estate in said county; that the whole of said so-called Stewart avenue lying in said town of Lake, has been each year so returned by said company; that taxes have been annually levied on all the real estate so returned, and that all such taxes have been duly and annually paid by said corporation since May 17, 1858, up to date, but plaintiff does not admit that any taxes have been or could be legally levied, assessed or imposed on said strip of land; that all the conditions contained in the deed of right of way over the so-called Stewart avenue, being the sixty-six feet strip of land in controversy herein, from the commissioners of highways of the town of Lake to said railroad company, dated May 17, 1858, were duly and completely fulfilled and performed, and that said deed may be received in evidence, subject to all objections thereto.”

Title in plaintiff to said lot 22 was proved, he having received a deed therefor from the Governor on the 6th day of September, 1851, and he immediately entered into possession. It was also proved said lot was subsequently divided by running a street north and south through it, called School street, and thereafter the street running north and south on the west side of the lot was called “Stewart avenue.” Evidence was given tending to show damage to the marketable value of plaintiff's property, and also special injury by being cut off from access to the property, and from dust, cinders, etc., and from foul smells because of allowing stock cars to stand on the track adjacent to the property.

Messrs. WILLARD & DRIGGS, for the appellant:

The lot is a subdivision of school land owned by the State, and platted by school trustees. The plat not having been acknowledged and recorded, the title to the land in the avenue remained in the State. City of Chicago v. Rumsey, 87 Ill. 348.

The exercise of the power to lay tracks on said avenue was entered upon, and two of the tracks were actually laid before the rule under the constitution of 1870 took effect. The first proposition, therefore, was correct, under the authority of City of Chicago v. Rumsey, 87 Ill. 348; Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 Id. 25.

As to the third proposition: It was expressly held in Lake Shore and Michigan Southern R. R. Co. v. Pittsburg, Fort Wayne and Chicago Ry. Co. 71 Ill. 38, that the Lanier deed was color of title to the land occupied by the railway company as a right of way. The commissioners' deed to the appellant is of the same character, and is fully within the ruling of the Supreme Court in that case. McClellan v. Kellogg, 17 Ill. 498; Hinchman v. Whetstone, 23 Id. 108; Dickenson v. Breeden, 30 Id. 326; Brooks v. Bruyn, 35 Id. 392; Winstanley v. Meacham, 58 Id. 97; Hardin v. Gouveneur, 69 Id. 140; Allen v. Munn, 55 Id. 486.

The eleventh proposition: Sections 1 and 9 of the charter of the Fort Wayne and Chicago Railroad Company, granted by the State of Illinois, had the same effect as to Stewart avenue, in the town of Lake, as the Chicago ordinance had as to Beach street, in the city of Chicago, viz: to allow the company to properly lay and operate its tracks therein without liability for...