Dewey v. Chicago & Milwaukee Electric Railway Co. , 184 Ill. 426 ( 1900 )

Mr. Justice Magruder

delivered the opinion of the court:

The appellee in this case, the Chicago and Milwaukee Electric Railway Company, was organized for the purpose of constructing and operating lines of street railway. It is nothing more than such a street railway corporation as is contemplated by the Horse and Dummy Railroad act, approved March 19, 1874, in force July 1, 1874. Indeed, the petition, filed by the appellee, claims the right to exercise the powers therein mentioned under the act of March 7, 1899, in regard to street railroads, which is not, in terms, materially different from the Horse and Dummy Railroad act of 1874, so far as the questions here involved are concerned. (Sess. Laws of Ill. 1899, p. 331). In addition to this, the village ordinance, under which appellee professes to act, is entitled an ordinance granting permission to lay down and operate “a street railway upon, over and along certain streets in the village of Glencoe.”

The property, which the appellee seeks to condemn, is a strip of ground forty feet wide and eight hundred and seventy-six feet long, lying next to and parallel with the right of way of the Chicago and Northwestern Eailway Company. The strip in question is a part of lots 2, 3, 4, 5 and 6, belonging to the appellant, and is upon the west ends of those lots, which come up to and abut upon the said railroad right of way. The strip in question, thus sought to be condemned, lies between Scott or Central avenue on the south and South street on the north in the village of Glencoe, and is distant several hundred feet from any street, which runs parallel with it, or in the same direction-with it. The petition does not represent, that the strip sought to be condemned is required for turn-outs, spurs, side-tracks, or for hny other purpose than a right of way. The petition seeks to condemn private property for a right of way for a street railroad, without showing, in the petition or by proof, that the property sought to be condemned is necessary for the construction and maintenance of the street railroad. The petition does not show, that appellant’s land is necessary for the use of appellee or of its road, or that the road could not have been built and operated on established streets in the village; and it does not appear that the land sought to be condemned is required on account of any obstruction of any kind in the way of the construction of a street railroad.

In Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295, we held that street, horse and dummy railroads do not possess the same powers of eminent domain, as are given by the statutes to railroads, organized under the acts relating to railroad companies; that a street railway, organized under the general Incorporation act of 1872, has no power, under that act, to condemn private property, the only power in that regard being conferred by the Horse and Dummy Railroad act of 1874; that, under the latter act, a street, horse or dummy railway company may only condemn such private property as is necessary for side-tracks, station grounds, etc., or, in case of an obstruction, may condemn a right of way around the same, returning again to the street or highway; and that a street railway cannot, without reason, abandon the highway on which it is authorized to lay its road, and condemn a right of way over private property. A street railroad is built to accommodate street travel, and it has no use for private property, except so far as it may need the same for a side-track, turn-out, or a station, or as an incident to its main line. The necessity for its condemnation of property must be a necessity, which is incidental to the main purpose of the line along the street, accommodating street travel. Street railways are railways on or upon the streets of a city or town. They have no right to diverge from the street, and condemn private property, unless some obstruction or conformation ,of the surface of the ground makes such divergence necessary, in order to avoid discomfort or danger to the traveling public. A street railway may not, like a steam railway, locate its route, in order to reduce time and- distance for passengers traveling from town to town across the country. Such location of its route is not for the accommodation of local, travel on the highways or streets, and, therefore, involves a perversion of the character and object of street railways.

The appellee was not at liberty, in the construction pf its road, to leave the public road or street whenever it saw proper to do so, and take private property against the will of the owner. If difficulties or obstructions are encountered, which render it impracticable to construct the street railway in the street, a necessity may arise, within the meaning of the act of March 7, 1899, (Sess. Laws of Ill. 1899, p. 331,) which will authorize the company to leave the street and go upon private property, until the difficulty encountered is overcome, when return may be made to the highway or street. So, also, if sufficient land cannot be had in the streets for side-tracks, turn-outs, and stations, and the same are necessary for a successful operation of the road, the company will have the right, under the law, to resort to private property. In other words, the power conferred by section 2 of the act of March 7, 1899, which is the same as section 2 of the Horse and Dummy act quoted in Harvey v. Aurora and Geneva Railway Co. supra, is not a general power of condemnation, but is limited to cases where a necessity for resort to private property is shown to exist. Such necessity must appear upon the face of the petition to condemn. (Aurora and Geneva Railway Co. v. Harvey, 178 Ill. 477).

In the case at bar, the appellant, in support of his motion to dismiss the petition to condemn, introduced several affidavits, showing that the condemnation of appellant’s property was not necessary to the maintenance and operation of appellee’s railroad upon the streets of the village of Glencoe. -These affidavits show, that there was a continuous line of streets, susceptible of being used as a right of way for a street railroad, between the south and north corporate limits of the village and on both sides of the right of way of the Chicago and Northwestern Railway Company; and, according to the affidavits thus presented by the appellant, there was no substantial difficulty in constructing and operating appellee’s railroad in one or more of the streets of the villag'e. Appellee introduced no affidavits or other proofs for the purpose of contradictiug the showing made by the appellant’s affidavits. In other words, appellee gave no sufficient reason for leaving the streets of the village and condemning private property, nor did it introduce any evidence, on the hearing of the motion to dismiss, to establish a necessity for leaving the streets and resorting to private property. The facts of this case, therefore, bring it within the scope of the doctrine laid down by this court in Harvey v. Aurora and Geneva Railway Co. supra, and Aurora and Geneva Railway Co. v. Harvey, supra.

It is claimed, however, by appellée that its petition refers to and sets out section 1 of the ordinance of April 26, 1898, and that the petition shows a necessity for the taking of the appellant’s property by reason of setting up the provisions of said ordinance. The contention of appellee is, that the provisions of section 1 of the ordinance create a necessity for the taking of appellant’s property, and that it was unnecessary for it to introduce any other evidence of such necessity than the ordinance itself. This position cannot be maintained. The corporate authorities of the village of Glencoe had no authority to authorize a condemnation of private property. The authority to condemn comes from the State, and must be derived from the statutes of the State. The village authorities mas^ refuse to consent to the use of their streets and alleys by a street railway corporation, but their consent or refusal to the use of their streets is the extent of their power. They control the streets, alleys and public grounds of the village, but they do not control private property. Any attempt of the village authorities, by consenting to a particular location of a street railroad across private property, to cause the street railroad to diverge from the streets, alleys and public grounds under their control, is void, and confers no right and creates no necessity.

The contention of appellee finds no support in the case of Tudor v. Rapid Transit Railroad Co. 154 Ill. 129. The petition in that case was filed under the provisions of the general Railroad law, and was not subject to the limitations of the Horse and Dummy act. The Tudor case does not construe, or refer to, or consider the Horse and Dummy act. In the Tudor case it was said (p. 132): “It is a condition precedent to the construction of a railroad upon or across a public street in a city, that the assent of the city corporation must first be obtained. But the right and the power, which the railroad company has to condemn private property within the limits of the city, are derived from the State and by virtue of its organization under the statute, and not from the city authorities and by force of municipal ordinances. And so the rule under our present legislation is, that it is not necessary as a condition precedent to the location by a railroad company of its road within a city or to its construction of such portions of its line as are not within, upon or across a street, or to the exercise of the power to condemn private property for the purposes of its construction, that an ordinance should be passed by the city council either providing for the location of the road, or giving assent for its construction upon or across the streets of the city, or any of them.”

The Tudor case cannot be regarded as an authority for the position, that a village ordinance may impose a necessity upon a street railway company to abandon the streets of the village, and go upon and over private property with authority to condemn the same. The recital of an ordinance of that character in the petition does not show, that private property is necessary for the construction of a railroad, so as to give jurisdiction to the courts to condemn said private property under the Horse and Dummy act. The naming of a route for a street railroad under a village ordinance over private property does not create or establish a necessity to follow the line indicated by snch ordinance. Such an ordinance certainly cannot create a necessity when none exists.

We are of the opinion that the court below erred in not sustaining the motion to dismiss the petition. Accordingly, the judgment of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.