Lead Opinion
delivered the opinion of the Court:
This рroceeding was commenced under the Eminent Domain act of 1872, on the petition of the Joliet, Lockport and Aurora Railway Company, to condemn the right of way for its own track across the right of way and track of the Chicago and Alton Railroad Company. The width of the right of way desired, and the angle at which petitioner’s road will cross defendant’s road at the point indicated, are stated with sufficient certainty in the petition to give a clear understanding of the manner defendant’s road-way will be affected. So, also, the use petitioner proposes to make of the strip of land sought to be condemned is stated to be, to build its railroad thereon, and operate its main tracks over and across the same, and it is then added, petitioner does not desire to appropriate and use such strip of land to its exclusive use, hut desires to use the same without prejudice to the rights of, and use thereof by, defendant, not inconsistent with the use thereof by petitioner for its main track or tracks. The defendant corporation answered the petition, and then filed a cross-petition. As the case is presented in this court it will not be necessary to state the contents of either of them. The case was submitted to a jury, who, after viewing the premises and hearing the evidence, assessed defendant’s damages at $150, and for which judgment of condemnation was rendered.
The first objection insisted upon to the regularity of the proceedings in the trial court arises on the admission by the court, over the objection of defendant, as evidence, a stipulation, regularly signed by petitioner, of which, omitting the date and signatures, the following is a copy: “In the above entitled cause, now pending in the county court, * * * and about to be laid before a jury impanelled for that purpose by the court, it is hereby expressly stipulated by said petitioner, the Joliet, Lockport and Aurora Railway Company, that it will and shall, at its own expense, put in,' and thereafter maintain in suitable and proper repair, the frogs аnd crossing' across two main tracks of the defendant; that this stipulation shall be binding on the successors and assigns of said petitioner so long as a grade crossing shall be maintained at the crossing, the right of way for which is being condemned herein.” Notwithstanding this covenant on the part of the petitioning corporation, defendant offered to prove what would be the cost and expense necessary to keep a crossing on its railroad, at the point where it is proposed to. make this crossing, in proper and suitable repair, including frogs, rails, or other appliances necessary to a proper railroad crossing, and the necessary renewals. Thе court sustained an objection to the giving of the proposed testimony, for the reason petitioner had stipulated to construct and maintain the crossing in proper repair at its own expense, and hence defendant could not account such expense as an element of damages, and in its charge the court made its instructions to the jury conform to this view of the law. If it shall be held the agreement of petitioner to construct, and thereafter maintain, at its own expense, a proper and suitable crossing at the point in question, is a valid obligation, enforceable against petitioner, its successors and assigns, and was properly admissible in evidence, it follows, as a matter of course, the decisions of the court in rejecting the evidence tendered and in giving instructions in respect to the same matter, were entirely correct. That the stipulation was executed in a manner to be obligatory on petitioner, its successors and assigns, is so manifest that no point is made against it in that respect, and under the previous decisions of this court no reason is perceived why it was not admissible in evidence.
Since the decision in the case of Jacksonville and Savanna R. R. Co. v. Kidder,
Any marked departure from the plans, as shown in the profile submitted, or from the stipulation in evidence, as to the character of the work to be done, would subject the corporation making the condemnation to an action for damages, in favor of the land owner. The cases ut supra settle this doctrine fully, and in Peoria and Rock Island Ry. Co. v. Birkett,
The objection of most seeming plausibility to the admission of the stipulation in evidence in this case is, it is a mere promise,—an undertaking,—and if petitioner fails to comply with its terms it simply constitutes a cause of action,—nothing more. It is not that it is a promise or an undertaking, for if it is valid, and should be performed as fully as is covenanted it shall be, it would work no injury tо defendant; but the objection is, the promise or undertaking may not, on account of financial embarrassment, or from other cause, be performed by petitioner, and that would leave defendant with simply a cause of action,—nothing more. So runs the argument of counsel. The same argument might have been made in all cases where stipulations have been made by the corporation condemning land for public uses, and on failure of performance the land owners would have an action, as the eases all hold; but such stipulations have not been rejected for that reason. Such covenants are thought to run with the land, and the right of action would always afford complete indemnity to the land owner. The rule applicable to private owners in this respect applies with equal force to railroad or other corporations. In case of any failure to perform the stipulation on the part of petitioner, it is asked, what remedy has defendant ? Precisely the same as the private land owner would have against the corporation exercising the right of eminent domain, and making a stipulation for his benefit. No importance need be attached to the suggestion petitioner may not perform its undertaking, but it may be answered by a reason having nothing more in its support,—that is, suppose defendant shоuld recover damages for the perpetual maintenance of this crossing, and should fail to keep it in suitable repair, what remedy would petitioner have? Simply an action, and nothing more. In the absence of all evidence, there is no warrant for saying defendant is, financially, more able to perform its undertakings in this respect than is petitioner, or that it is more likely to do so. Both parties are common carriers of passengers and freights, and both are under the highest obligations to the public to observe that this crossing is kept in repair, so that it may be entirely safe for the passage of trains, and it may reasonably be presumed both corporations will оmit no duty in that regard. One party is as much interested in its maintenance in a suitable condition as is the other, and should it become unsafe through use, or for other cause, either party might, and it would be its duty to, make all needed repairs, and on the party obligated to maintain such crossing would rest the expense of such repairs, and the same might be recovered in an action.
The case being considered bears no analogy to Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. reported in
Another ground relied on with much confidence is, that by the rulings of the trial court defendant was denied the privilege to prove what effect, if any, the construction of the crossing at the point in controversy would have on the hauling capacity of its engines employed in drawing both passenger and freight trains, in consequence of having to stop its trains in obedience to that provision of the statute which requires that all trains run on any railroad in this State which crosses any other railroad on the same level shall be brought to a full stop within certain distances specified,— and that, it is said, is error. The court, in giving instructions on this branch of the case, made them conform to the theory on which the evidence tendered was excluded, and the rulings in both respects will be considered together.
It appears from the evidence introduced as to the grade of dеfendant’s road, that the track, both ways from the point where it is proposed to construct the crossing of petitioner’s road, is practically on a level. A change of grade commences two hundred feet south. It begins to descend from there, and for a distance of four hundred feet it is thirteen and two-tenths feet per mile. Commencing at the point of intersection and running north, as the evidence is understood, defendant’s track, for some distance, is practically on a level, and then commences an elevation, the altitude per mile being stated. In view of this condition of defendant’s track at and near the point of intersection of the two roads, both nоrth and south, defendant asked a witness who was familiar with the grade of the road at the place of intersection, the following question: “Upon the theory that a crossing were to be made at this point of this proposed crossing, and the trains of the Chicago and Alton railroad were to stop at a point distant not less than two hundred feet or more than eight hundred feet from the center line of that crossing, and start again, coming to a dead halt not nearer than two hundred feet or distant more than eight hundred feet of the proposed crossing, what effect, in your judgment, would it have on the hauling capacity of the engines employed by the Chicago and Alton railroad in thеir service past this point, —in their freight service past this point?” This question was objected to, on the ground defendant had no right to recover for any damages which might be occasioned by reason of its servants having to stop their trains at this crossing in obedience to the law. In sustaining the, objection the court said: “If the defendant proposes to show that these stops or halts will be occasioned, not by force of any statute or police regulation requiring stops or halts on approaching railroad crossings, but, independent of such police regulations or statute, will be required by.reason of the proposed track of the petitioner across the rаilroad track of the defendant, then I think the question may be answered as being competent on this point, otherwise the objection is sustained. ” Objections to other questions of the same import, only differing in phraseology, were sustained by the court. Exceptions to the rulings of the court were taken in the usual manner upon the interrogatories propounded, so far as the interrogatories involved the existence of any law or police regulation requiring the stopping of trains at railroad crossings.
The questions arising on the rulings of the court on this branch of the case are of first impression in this court, and have been considered with that care their importance demands, and the conclusion reached is, the rulings of the court may be sustained, both on principle and authority. Without the construction of the crossing asked for by the petitioner, it is said, obedience to law in reference to stopping trains at crossings of other railroads is not demanded of defendant in running its trains between Lockport and Joliet, and because after the crossing is constructed defendant will be compelled to stop its trains on approaching such crossing from either direction, it is argued the inconveniences and other embarrassments that will be experienced are elements to be considered in estimating the “just compensation” that should bе paid for the injuries sustained. This is a mistaken view of the law. The statute in question is simply a police regulation, valid and binding on all railroad companies in the State, whether incorporated before or since its passage. Its duration rests in the will of the General Assembly. The decision may be placed on a principle underlying all conduct,—that is, that neither a natural person nor a corporation can claim damages on account of being compelled "to render obedience to a police regulation designed to secure the common welfare. That is a duty every one owes to government for the protection it affords. Corporations, as well as citizens, are subject to the police power of the State. So far as defendant would suffer injury on account of having to stop its trains at the crossing for reasons other than compliance with the statute, the'court distinctly ruled, evidence of such damage, if any, might be given. , The rulings of the court in that regard were as broad and liberal as the law will warrant. Under the laws of this State, (and so its policy is,) one railroad has the right to cross the track of another, and if they can not agree upon the amount of compensation to be made therefor, or as to the points and manner of such crossing, the same shall be ascertained and determinеd in the manner prescribed by law. Should it be held that before a new railroad could be laid across the track of a railroad previously constructed, the damage for any inconvenience such company might suffer on account of having to submit to and observe police regulation in regard to the conduct of its business thereafter should first be ascertained and paid by the new road, it would amount to a practical prohibition on the construction of-new railroads in the State. A railroad company has no vested right to run its trains in defiance of public statutes designed to promote the public good, and no principle is perceived on which such сorporations can demand compensation for obedience to such statutes. Immunity from police regulations and restraints would secure to corporations rights not possessed by citizens of the State.
Unless, therefore, every railroad corporation takes its right of way subject to the right of the public to have other roads, both common highways and railways, constructed across its track whenever the public exigency might be thought to demand it, the grant of the privilege to construct a railroad across or through the State would be an obstacle in the way of its future prosperity of no inconsiderable magnitude. The claim made for damages, in this respect, has neither reason nor the weight of authority for its support. In Railway v. Railway,
The point is made, both by the argument and the instructions asked by defendant, that on account of defendant having to cause its trains to be stopped in compliance with the statute, there is a reduction in the hauling capacity of dеfendant to do business at and over the point of such crossing, and hence it should be paid in money a sum sufficient to make good any reduction in the hauling capacity of its engines ■ that may be shown by the evidence. Beyond mere nominal damages it is difficult to adopt any rule for the admeasurement of any actual damages in such cases. It would involve the consideration of so many collateral facts as would make the claim insisted upon shadowy and uncertain. ■ What is the capacity of defendant’s engines to move trains, would have to be ascertained by first ascertaining their utmost capacity at the different grades on its entire line of road. This court may takе judicial notice of what may be known by common observation. So it may be assumed defendant’s main line of road is well nigh, if not quite, three hundred miles in length. To ascertain the capacity of defendant’s engines at the most difficult grade on the entire line would necessarily require considerable measurements, and many experiments. When that fact shall have been ascertained, the embarrassment in arriving at a conclusion as to the hauling capacity of such engines at the crossing in question has only been met, but not overcome. Are there no other crossings of other railroads where the law makes it obligatory on defendant to cause its trains to come to a full stop, equally as difficult as this one? Should the difficulty at this point be removed, could they surely pass others, hauling the same number of cars or coaches ? But a still more troublesome question remains. Would it be practicable to prove when, or how often, if ever, the necessity would exist to move as heavy trains at this point as elsewhere on defendant’s line of road ? There may be, and doubtless are, many through trains over defendant’s road that would require the same motive power on the entire track; but at what point shall the capacity of its engines be estimated? Shall it be at this crossing, or elsewhere on the road ? These and many other difficulties that might be suggested make thе class of damages insisted upon too remote, uncertain and shadowy to be considered as an element in the actual damage sustained. The rule on this subject is stated in Jones v. Chicago and Iowa R. R. Co.
The judgment does substantial justice, and must be affirmed, which is done.
Judgment affirmed.
Dickey and Sheldon, JJ., dissenting.
Separate opinion by Mr. Justice Soholfield :
Although concurring in the opinion that appellant is not entitled to recover for damages presumably to be sustained by reason of being compelled by statute to stop its trains before crossing the track of appellee’s road, yet, since the language here employed does not fully and accurately express my opinion, I prefer to briefly state, in my own way, the views I entertain upon this question.
I am unable to perceive any distinction, in principle, between cases where, by statute, a railroad company is required to stop its trains before crossing the track of another road, and eases where the same stoppage is rendered necessary by reason of the prior occupancy of the way by the cars on the other road, or by reason of dangef of collision with the cars of the other road. In either case, if the company thus compelled to stop its trains has a legal right to continuous and unobstructed passage upon its track, such stoppage must ■invade that right, and in neither case, if it does not have such right, can there be any legal invasion of a right for which damages can be recovered.
The inquiry then must be, has appellant here shown a franchise (that is, a legal property right,) to move its cars from one end of its road to the other, without other hindrance or delay than such as was necessitated by the existence of things when its charter was granted ? It is not sufficient to show that it has a property right to use its track as a railroad, to the exclusion of all others,—no one denies that. But even that is subject to condemnation, and when another road hаs condemned and paid for the privilege of using so much of that track as is devoted to its crossing, that property in the track is compensated for, and each road then, with reference to that much of what was before the property of the one, is an owner in common with the other, and equally entitled to its use, still leaving the question whether the company whose road is to be crossed, has, in addition to the ownership of its tangible property, an ownership of an intangible property, consisting of a mere prior right of passage.
It needs no demonstration to prove that mere priority of occupancy or use gives no priority of right to that which is freе to all,—and this, obviously, includes the right of locomotion. A railroad company’s right of moving its trains differs only from rights of locomotion generally, in that it .must always move, and can only move upon the line of its tracks, and while it has this right, natural individuals and corporations have the same right of locomotion that it has,— not upon its tracks, without paying for them, but generally. Neither has precedency, but all are entitled to it as a common right. If this were not so, in a highly improved and old settled country the last comers would find the entire country preoccupied, so that locomotion would be practically, if not literally, impossible. The development of the country, its material prosperity, and even the comfort and convenience of the citizens, render it necessary that railroads should be built and operated in every direction, and so, necessarily, oftentimes crossing each other. And this necessity has always been so obvious that it can never be presumed the legislature has bound its hands in regard to it, by contract in the .nature of a grant, in the absence of unmistakable language to that effect,—if, even then, it could be held to have done so,—for it would, in effect, be parting with one of its sovereign rights, which is indispensable to the welfare of the State. See Charles River Bridge v. Warren Bridge,
Appellant’s charter contains no contract obligating the Statе not to charter or permit the building of railroads crossing its track, or that passage upon its line of railway shall not be delayed or hindered. It simply creates a corporation, with the usual powers to construct and operate a railroad. In addition, therefore, to the right to be a corporation, the privilege of running the road and taking tolls for fare and freight is the essential franchise conferred. Thorpe v. R. and B. R. R. Co.
If appellant could claim, as a part of its franchise, that it was entitled to pass its cars from one end of its line to the other without any other hindrances, delays or burdens than those in existence when its charter was granted, then any statutе subsequently passed, requiring its cars to .slacken speed or stop, where before they were not required to slacken speed or stop, or requiring a care and labor not then required, would impair the obligation of the contract evidenced by its charter, and be in contravention of section 10, article 4, of the constitution of the United States, and hence void. The opening of new common highways across railroad tracks necessarily increases the care and labor of the railroad companies in order to avoid collisions. Where villages or cities spring up along the lines of railways, and their streets are laid out across the railway tracks, the care and labor to avoid collisions is very materially increased, and the speed of trains must, of necessity, be to some, extent slackened. In all these cases, if the railroad charter is held to amount to a contract that passage upon the line of its railway shall not be delayed, hindered or burdened, the highways and streets can not lawfully be laid out until the railroad company is compensated for the additional burden it will thus have to bear,—nor can the village or city, by ordinance, require the speed of trains to be checked, where compensation for the attendant loss has not been first provided for. This has never been supposеd to be the law here, nor, so far as we -know, has it been held to be the law elsewhere. Statutes and ordinances requiring the checking of the speed of trains, the ringing of bells and the sounding of whistles before crossing highways or streets, or within the limits of cities and villages, have been held reasonable police regulations, without regard to whether the streets or highways were laid out, or the village or city was platted and has been built up since or before the granting of the railroad charter, and without regard to whether compensation has been made to the railroad company for loss or injury thus sustained. Among other cases, see G. and C. U. R. R. Co. v. Loomis,
There being no contract, express or implied, giving the elder company priority of mere locomotion, the right of each in this regard is to be enjoyed with reference to the equal rights of all others; and this, 'it is to be presumed, was intended when the charter was granted appellant. It took its charter subject to the rights of other railroads thereafter to be chartered and built to cross its track, upon making compensation for injury to its property,—that is, its soil and track, and other improvements annexed to the soil, if there are such,—with the equal rights of moving trains upon their tracks that appellant has upon its track, neither having priority of right in that regard. And this view has the sanction of Massachusetts Central R. R. Co. v. Boston, Clinton and Fitchburg R. R. Co.
For so much of the right of way and track as' is taken or appropriated to use, and for damages, if any are sustained, to right of way and track and fixtures, no one denies the right of recovery. I think, where the crossing necessitates the raising or lowering of the grade in order to the operation of the road as efficiently as it was before operated, the expenses of so doing may properly be taxed against the road seeking the condemnation. The prior company built its road with reference to the condition of things as they then were. In the absence of notice it could not be anticipated a crossing would be at a particular place, and so the company was not required to build its track with reference to such crossing. The party seeking condemnation selects the particular crossing, and thereby renders necessary the expenditure of money to adapt the track to that crossing, and should pay whatever may be required for that purpose. Crossings may be selected (as in Lake Shore and Michigan Southern Ry. Co., et al. v. Chicago and Western Indiana R. R. Co.
Concurrence Opinion
I concur in the views expressed in this separate opinion of my brother Scholfield.
