Illinois Central Railroad v. Commissioners of Highways of the Town of Paradise , 1895 Ill. App. LEXIS 733 ( 1895 )

Mr. Justice Boggs

delivered the opinion of the Court.

The appellant prayed and obtained an order of the Circuit Court allowing an appeal.

The order is complete, save it does not designate any court to which the appeal was granted.

The appellant gave a bond conditioned for an appeal to this court and otherwise complied with the order of the Circuit Court relative to the appeal and filed the record in the case here.

The subject-matter of the controversy is such that jurisdiction of the appeal is vested by law solely in this court. Such jurisdiction is conferred by law, not by the order of the Circuit Court, and is not affected by the failure of the trial court to designate this as the court to which the case on appeal should come.

Ho other court than this could have lawfully been named by the trial judge in the order. As the appeal could go to but this court the appellees could not be misled or left in doubt by the omission in the order, and clearly the right of appellant ought not to be prejudiced thereby.

Had the Circuit Court judicially determined another court than this had jurisdiction of the appeal, and named such other court in the order as the court to which an appeal was granted, no doubt it should be taken to that court, and the correctness of the action of the tidal court there determined.

Where, however, an appeal is granted and the order granting it omits to designate the court to which the appeal is allowed, and by law it can go to but a certain court, the appellant may surely follow the law, file his record in that court and there be heard.

We do not assent to the view that cases decided by our Supreme Court and cited by counsel, hold a contrary doctrine.

The question did not arise in any of such cases.

In C. P. & S. W. R. R. v. Marsailes, 104 Ill. 91, the question presented was whether the filing of an appeal bond according to the order of the court could be waived by agreement of the parties.

In Gage v. Arndt, 114 Ill. 318, an appeal was allowed to the Appellate Court of the First District, and the record was filed in the Supreme Court, and the question was whether the action of the trial court could be disregarded.

In Smith v. Chytraus, 152 Ill. 671, an appeal was granted to the Appellate Court and the terms of the order of appeal complied with.

The case was one of which the Appellate Court had no jurisdiction on appeal, and the question presented to the Supreme Court was whether the order of the Circuit Court allowing an appeal to the Appellate Court was effectual to stay further proceeding in the Circuit Court.

In neither of the above cases was the question of the effect of a failure of the trial court to designate any court to which the case should go by appeal, raised, and, as we believe, it has not been decided by the Supreme Court. We regret that we are unable to agree with the holding of the Appellate Court of the Second District in Mississippi Valley v. Bermond, 39 Ill. App. 267.

The motion to dismiss the appeal is therefore overruled.

The other question presented is whether the bridge mentioned in the agreed statement of facts is to be deemed an approach to the railroad crossing within the meaning of Sec. 71, Chap 11, R. S.

This section, it may be well to first state, is applicable, to a crossing made necessary by the extension or opening of a new highway across the track of the railroad. C. & N. R. R. Co. v. Chicago, 140 Ill. 309.

It appeared from the statement of facts, that when constructing the railroad the company, for purposes of its own, raised an embankment in the natural bed of a watercourse, obstructed the flow of the stream, and diverted the water into a ditch which it dug for that purpose on its right of way along the westerly side of its track.

The action of the water thus forced into the ditch, in the course of time widened and deepened it until it was of the depth of twelve feet, and the width of fifty at the point where the bridge was constructed by the appellee commissioners.

The erection of a bridge or filling up the ditch was absolutely necessary to enable the public, when using the highway, to reach the railroad crossing.

The situation and the necessity arising therefrom, was chargeable to the company, being the natural result of its action in the construction of its' road.

We understand an approach, within the meaning of the statute, to be an embankment, grade bridge, or structure which the construction of the road has made necessary to be erected or constructed within the right of way to enable persons passing along the highway with- teams and vehicles to reach the crossing of the railroad. See I. C. R. R. Co. v. City of Bloomington, 154 Ill. 539.

The bridge was, therefore, properly held by the trial court to be an approach to the crossing.

We see nothing in the agreed statement of facts to warrant the argument that the bridge could as well have been made of other and less expensive material.

The judgment must be, and is, affirmed.