| Ill. | Oct 1, 1883
delivered the opinion of the Court:
The purpose of the incorporation of appellant and appellee is the same,—that of transferring cars from one railroad to another, from the several railroads to the stock yards, and to the elevators, mills, warehouses and ferries accessible, and from these back again to the several railroads. They are incorporated under the same general law, and both have the requisite municipal authority for laying their tracks in the street. The main track of appellee does not cross that of appellant, but it lies within a few feet of it, and extends parallel with it, and crosses some of appellant’s lateral tracks and switches, etc., and some of the lateral tracks and switches which it will be necessary for appellee to construct and operate will cross the main track of appellant, and, perhaps, also some of its lateral tracks and switches. No continuous portion of appellant’s main track is taken and sought to be condemned, but crossings of and for lateral tracks and switches are alone the subject of the taking and condemnation prayed to be enjoined.
The evidence, when fairly considered, fails to sustain the allegation in the bill that the construction and operation of appellee’s railway over the lateral tracks of appellant, as proposed in the proceedings for condemnation, will render it impracticable for appellant to carry on its business and exercise its rights and franchises as a railroad corporation, and be a substantial destruction of its property and franchise. It does, however, show that appellant will be seriously hindered in the operation of its tracks, switches, etc., by the operation of appellee’s tracks and switches at the same time, and that this will greatly detract from the profits of its business, and depreciate the value of its property. In principle the case is simply one wherein one competing road is delayed in the movement of its trains by stoppages rendered necessary by crossing the tracks and switches of another, when no grant involving a contract not to be thus delayed exists, and no priority of right in that regard is otherwise shown. The mere grant of the right to build a railroad between given termini creates no implied obligation by the State to not thereafter grant the right to build other railroads parallel with it between the same termini. (Charles River Bridge Co. v. Warren Bridge Co. 11 Pet. 420" date_filed="1837-02-14" court="SCOTUS" case_name="Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge">11 Pet. 420; Hudson and Delaware Canal Co. v. New York and Erie R. R. Co. 9 Paige Ch., 323" date_filed="1841-10-19" court="None" case_name="Hudson & Delaware Canal Co. v. New-York & Erie Rail Road">9 Paige, 323; Illinois and Michigan Canal v. Chicago and Rock Island R. R. Co. 14 Ill. 314" date_filed="1853-06-15" court="Ill." case_name="Board of Trustees v. Chicago & Rock Island Railroad">14 Ill. 314.) Nor does it imply an obligation on-behalf of the State that other railroads, with their tracks and switches, shall not thereafter be granted the right to cross the State in a different direction, and thus pass over its tracks and switches. (Chicago and Alton R. R. Co. v. Joliet, Lockport and Aurora Ry. Co. 105 Ill. 388" date_filed="1882-11-20" court="Ill." case_name="Chicago & Alton Railroad v. Joliet, Lockport & Aurora Railway Co.">105 Ill. 388.) The public welfare especially requires that the business of carrying, shall be open to competition as far as possible, and no monopoly in that regard, however limited the sphere of its operation, .can be presumed to have been intended by the legislature in the enactment of the general law for the formation of railroad corporations. When appellant organized as a corporation and built its road, it was charged with the knowledge that other companies had the right thereafter to organize and , build and operate their roads, precisely as appellee has organized and is seeking to build its road. The probability was within reasonable contemplation, and appellant’s stockholders acted with their eyes open, and took their chances of this kind of competition.
In Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 Ill. 506" date_filed="1881-02-03" court="Ill." case_name="Lake Shore & Michigan Southern Railway Co. v. Chicago & Western Indiana Railroad">97 Ill. 506, where a crossing by one railroad over the switches of another was sought to be enforced, at page 523, in speaking of the statute under which these companies organized, and the general law in relation to eminent domain, it was said: “It seems plain, taking these two statutes together, that the General Assembly intended to leave not only the question of whether the taking of any given property for any given purpose named in the Eailroad act would be of such public use as to warrant the taking thereof, upon just compensation, without the consent of the owner, to be solved by the all-pervading laws of trade and commerce, but also to leave the question of the place and manner of such taking to he controlled upon the same principles. They are both left to the determination of the railroad company seeking the same, under the limitation that full compensation therefor must he made by such corporation. The legislative declaration assumes that no such corporation can afford to incur the necessary cost in this regard for a work that will not prove profitable, and hence not needed for public use, or to thus take for s'uch work property not needed therefor, especially as property rights so acquired, though fully paid for, can not be made available for any other purpose without forfeiture of all title to the same. The security against a wanton and arbitrary exercise of this power upon mere whim or caprice, and that in all cases the point and manner of taking the land selected will be that least injurious to the owner and yet suited to the public necessity, is found in the fact that such corporations will he induced by considerations of their own best interest to select, in making such crossings, that practical place and that practical mode which will be the least detrimental to the owner, because the corporation so selecting is required by law to make to the owner full compensation, and the more inj urious to the owner the place selected and the mode chosen, the greater will be the amount of necessary compensation to be paid. ”
Counsel for appellant, with seeming confidence, relies upon the decision in Central City Horse Ry. Co. v. Fort Clark Horse Ry. Co. 81 Ill. 523" date_filed="1876-01-15" court="Ill." case_name="Central City Horse Railway Co. v. Fort Clark Horse Railway Co.">81 Ill. 523, and to some of the language used by the judge in argument in delivering the opinion of the court in Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. supra. In the first named case, one horse railway company was seeking to appropriate and condemn the central part of the track and fixtures, or substantially that, of a rival horse railway company, leaving the ends unaffected, and it was held this was a substantial destruction of the railway, and could not, therefore, be tolerated. But we have seen, here, there is no appropriation of, or offer to condemn, any continuous part of appellant’s main track, but the purpose is merely to take and condemn crossings of and for lateral tracks and switches,—the very thing that was held allowable in the last named case. The language in the opinion in the.last named case, to which reference is made, is this: “To -warrant the taking of the property of one party already appropriated to a public use, and placing it wholly or in part in the hands of another party for a public use, it is essential that the new use be a different use, and also that the change from the present use to the new use shall be for the benefit of the public.” This was-merely introductory to the main discussion, and, as is therein shown, not vital to the question at issue. Still, regarding it as an authoritative enunciation of a legal principle, it is just as obvious here as it was there, that the use of a railroad track for the mere purpose of crossing it is not the same as the use of it for the transportation of trains from one point to another along its line. This use takes no property from one party to give to another, but gives the one simply a limited easement in the property of the other, to be enjoyed in conjunction with the equal right of user of the other.
We see no cause to disturb the decree below. Legal damages, assessed as provided by law, will afford appellant an adequate remedy for all it will suffer by the acts of appellee. There is no ground for an injunction.
The decree is affirmed.
affirmed.