| Ill. | Jun 19, 1894
delivered the opinion of the Court:
Very many of the questions discussed by counsel, and insisted upon as ground for reversal, have been determined adversely to the contention of appellant in I. C. R. R. Co. v. City of Chicago, 138 Ill. 453" date_filed="1891-10-31" court="Ill." case_name="Illinois Central Railroad v. City of Chicago">138 Ill. 453; C. & N. W. Ry. Co. v. City of Chicago, 140 id. 309; I. C. R. R. Co. v. City of Chicago, 141 id. 586, and other cases, and need not be here again considered.
By virtue of condemnation, the city could acquire an easement only in the street extended, and the right of appellant to use its tracks for the passage of trains would exist as theretofore enjoyed, subject only to the easement in the public. Each would have the right to the use of the strip of ground condemned for the street, subject to the right of the other, the railroad retaining the right to operate its trains over and across the street, to the same extent and with the same limitations that it enjoys such right at public street crossings, and the public having the same right to the use and enjoyment of the street, when extended across the railroad lands, that it has to the use of streets at railway crossings. In other words, the right of the public in the street being established under the ordinances of the city, the rights of the public and of the railway company would be the same, and subject to the same restrictions and limitations as such rights are enjoyed at the crossings of public streets by railways. As said in Ill. Cent. Ry. Co. v. Chicago, 138 Ill. 453" date_filed="1891-10-31" court="Ill." case_name="Illinois Central Railroad v. City of Chicago">138 Ill. 453, it manifestly was intended by the legislature, that the tract to be condemned for the extension of the street over and across railroads, railroad rights-of-way and lands, should be subject to the joint use by the railroad in the exercise of its franchise, and by the public as a street. These rights to its use and occupancy co-exist—the city, for the use of the public, acquiring the right to extend and open the street over and across the railroad and the railroad right-of-way, and thereafter to maintain and keep the same in repair, subject only to its joint use by the railroad; and the railroad, retaining the right to use and occupy the same for the legitimate and reasonable management and operation of its railroad and transaction of its business, subject to all lawful rules and regulations applicable to public street crossings.
The holding there was, that each took and held, subject to the joint use by the other, for the respective purposes to which the land is devoted. It is manifest, that the railway company and the public will possess the same rights, and none other, at the proposed crossings, that are possessed by each at street and railway crossings generally, within the same jurisdiction. And these rights will be subject to like police regulation as at other crossings. It is, therefore, erroneous to say, that either has a dominant right, or that either takes or holds subject to the right of possession, use or enjoyment by the other. ■ The rights, for the respective purposes, co-exist. Anything to be found in cases in this court, intimating a contrary holding, is to be disregarded.
The use of the land for other purposes than the operation of its trains, however, such as storing cars thereon, and the like, would be necessarily inconsistent with the right of user in the public. And in the nature of things the right of the railway company to store cars upon its tracks on the land condemned, and thereby obstruct the use of the street by the public, could not exist. And the railway company would be necessarily deprived of the use of its land as it had theretofore enjoyed the same.
But if it be conceded that damages will accrue to the railway company by reason thereof, it will constitute no proper ground for the interposition of a court of equity. Private property can not be taken or damaged for public use without just compensation, for the property taken and for damages to property not taken. And it will be entirely proper for the railway company to recover such damages as will be compensation for the land taken, and for damages to its property not taken, by the opening of the street, as shall be just, in the condemnation proceeding. L. S. & M. S. R. R. Co. et al. v. C. & W. I. R. R. Co., 96 Ill. 125" date_filed="1880-09-15" court="Ill." case_name="Lake Shore & Michigan Southern Railway Co. v. Chicago & Western Indiana Railroad">96 Ill. 125; I. C. R. R. Co. v. Chicago, 138 id. 453. There being a complete and adequate remedy at law, a court of equity properly refused to take cognizance, and the order dismissing the bill was properly entered.
It is, however, insisted, that the bill should be maintained for the reason that there is an attempted appropriation of the railway company’s property without authority of law, and that injunction is the appropriate, remedy in such cases where the land is already appropriated to a specific public use.
The particular ground of contention is, that the strip of land sought to be condemned had been devoted to the specific public use of a railroad yard. A railroad yard is a tract of ground upon which are railroad tracks, used for the purpose of receiving and storing cars when not in use, or used for the purpose of switching, in the distribution of cars and engines to other places, and in the making up of trains. As shown by the foregoing statement, there were upon the hundred foot strip, at the point of the proposed street crossings, eight parallel railway tracks, connected by switches. Two were used for passenger trains, two for freight trains, and the others for such use as the convenience of the company demanded in the switching and storing of cars.
It is insisted, that there is no express authority given by the legislature to the city to open streets across the land in question.
It seems to be well settled,- that to authorize the taking by the municipality, for a public use, land already devoted to another public use, the legislative intent to grant the authority must be shown by clear and express language, or by necessary implication from the words of the grant. Mills on Em. Dom., sec. 46.
The City of Chicago was organized under the general act of 1872, for the incorporation of cities and villages. By paragraph 7, section 1, article 5, of that act, it was given power “to lay out, to establish, open, alter, widen, extend, grade, pave, or otherwise improve streets,” etc., and it may be conceded, under the authorities, that this general power to extend, establish and open streets, would not authorize the taking of property already devoted to a public use. But by the 89th paragraph of the same section it is provided that: “The city council shall have power, by condemnation or otherwise, to extend any street, alley or highway over or across * * any railroad track, right-of-way or land of any railroad company within the corporate limits,” etc. And we have repeatedly held, that this is express authority for the extension of streets, by condemnation or otherwise, by the city authorities over and across such tracks, rights-of-way and lands of railroad companies. I. C. R. R. Co. v. Chicago, 141 Ill. 586" date_filed="1892-05-12" court="Ill." case_name="Illinois Central Railroad v. City of Chicago">141 Ill. 586; C. & N. W. Ry. Co. v. Chicago, supra; I. C. R. R. Co. v. Chicago, 138 Ill. 453" date_filed="1891-10-31" court="Ill." case_name="Illinois Central Railroad v. City of Chicago">138 Ill. 453.
It is contended, however, that the terms, “right-of-way,” “tracks,” and “land,” as used in the 89th paragraph, apply only to such right-of-way, tracks and land as is appropriated to the active operation of the company’s railway, and that they do not apply to tracks or land devoted to the purposes of a railroad yard. The attempted distinction is without foundation. Without pausing to discuss or determine what would be the effect of an attempt by the city to open a street, under the power conferred by this paragraph of the statute, through depots, engine house and the like, it is sufficient to say, that the attempt here was simply to extend the streets across land devoted to railroad tracks. The tracks upon the land sought to be taken, although some were devoted to the passage of passenger trains, others for the accommodation of freight traffic, and still others used for switching purposes and devoted to the storage of cars, were each “railroad tracks,” and it can not be important to what particular use the “railroad tracks” may be devoted. By the express terms of the statute, power is given to the city authorities to extend streets, alleys and highways over and across the same.
The right of the legislature to exercise the power of eminent domain, and to invest the municipal authorities of the State with the power, and that it may extend to railroad property, is not^uestioned. (Sec. 14, Art. 11, Const.; E. St. L. C. R. Co. v. E. St. L. U. R. Co., 108 Ill. 265" date_filed="1883-10-01" court="Ill." case_name="East St. Louis Connecting Railway Co. v. East St. Louis Union Railway Co.">108 Ill. 265; C. & A. R. Co. v. J. L. & A. R. Co., 105 id. 389.) It will be unnecessary to determine the question, pressed upon us with so much force, that where both uses may not stand together, with such tolerable interference that compensation can be made by the payment of damages; that is, if the use of the land for a street, when exercised, will exclude the former use to which the land was appropriated, it can not be implied, from the general power to extend streets over and across rights-of-way, tracks and land, that the legislature meant to subject the land to the new public use to the exclusion of the prior public use. That is, it can not be implied, from the general language, that the legislature intended to destroy the prior use. True, as already said, the opening of the street would exclude from the tracks within the street the use of such tracks for the purpose of storing cars thereon. But it is manifest, that it is an interruption of the use only at the crossings, and if damages accrue because of the taking of that right, or the value of the property of the railway company not taken is decreased in value in consequence, adequate compensation can be made in the proceeding at law.
The decree of the Superior Court dismissing the bill will accordingly be affirmed.
Decree affirmed.