Illinois Central Railroad v. Commissioners of Highways of Mattoon
161 Ill. 247
Ill.
1896
Check Treatment
Mr. Justice Baker

delivered the opinion of the court:

We think the material inquiry is as to the existence of a public highway crossing at the place in question. The land was a part of the right of way of the railroad company, and had been in its possession and control since 1855, and it had operated and was operating its railroad thereon.

It is provided in the State constitution (art. 2, sec. 13,) that private property shall not be taken or damaged for public use without just compensation, and that such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. “Property,” in the sense in which that word is thus used in the constitution, is that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others. (Rigney v. City of Chicago, 102 Ill. 64.) The use of a railroad right of way is exclusive, and is property within the mandate and protection of this constitutional provision, and an entry upon such right of way and use of it for another public purpose is a taking of property, for which there must be just compensation. (Lake Shore and Michigan Southern Railway Co. v. Chicago and Western Indiana Railroad Co. 100 Ill. 21.) The extension of a public highway by the public authorities across the right of way of a railroad company deprives it, in part, of its property rights in respect to the portions of the right of way within the lines of such highway, so as to entitle the railroad company to just compensation. (Illinois Central Railroad Co. v. City of Chicago, 156 Ill. 98.) And in Chicago and Northwestern Railway Co. v. Town of Cicero, 154 Ill. 656, we said (p. 662): “It is the mandate both of the constitution and of the statute, that appellant should be paid just compensation for its property taken,—not compensation, if any, for its property taken. Property is the right and interest which one has in lands and chattels to the exclusion of others. The term ‘property’ includes every species of valuable right and interest. Value is the price deemed or accepted as equivalent to the utility of anything, and compensation is that which constitutes or is regarded as an equivalent. It is impossible to conceive of such a thing as property wholly separated from the element of value. Prom the very term ‘property’ the law infers some value, and if no value is shown, the inference will be that it is the nominal sum of one cent, one penny or one dollar. * * * Just compensation to the extent of that value was an absolute and constitutional condition precedent to the exercise of the right to take property from the owner under the right of eminent domain.”. And in Lake Shore and Michigan Southern Railway Co. v. City of Chicago, 151 Ill. 359,—a case of condemnation for a street across the right of way of a railroad company,—it was said that the company had the right to have the question of damages to its property not taken fairly submitted to a jury. In the leading case of Chicago and Northwestern Railway Co. v. City of Chicago, 140 Ill. 309, it was held that where a strip of land across a railroad right of way is taken for a public street, the measure of the compensation is the amount of decrease in the value of the use for railroad purposes which would be caused by the use for the purposes of a street. In the subsequent case of Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 149 Ill. 457, it was said (p. 459): “The measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for the purposes of a street, such use for the purposes of a street being exercised jointly with the use of the companies for railroad purposes.” And to the same effect are subsequent cases.

The agreed case shows that when the highway commissioners ordered and laid out the road in question no compensation or damages for the property taken or damaged were paid to the railroad company, or agreed upon or released, and that neither compensation nor damages were ever assessed or determined by a jury under either the Eminent Domain act or sections from 39 to 46 inclusive of the Road law, (Hurd’s Stat. 1893, pp. 1241, 1242,) nor any endeavor made to ascertain the amount of either compensation or damages. This was, apparently, an attempt to evade or annul the provisions of both the constitution and the statutes of the State. The commissioners could not lawfully establish and lay out a new road across land and property belonging to another in his or its private right by simply making an order to that effect. The same laws that protect and preserve the property rights of the individual citizen also protect and preserve the property and the rights of corporations, and the commissioners could no more establish and open a public road across the right of way and railroad tracks of the railroad company by simply and arbitrarily making an order, than they could establish and open such road across the farm of the individual land owner that adjoined such right of way, by such an order.

It is urged that because of the stipulation in the agreed state of facts “that there was no substantial damages to the company, but only nominal damages, from the laying out or opening of the highway,” there was no occasion for either agreeing upon the amount to be paid, or securing a release or procuring an assessment of compensation or damages by a jury, and that therefore the company is in this case liable to the commissioners for the cost of putting in the crossing. There is no merit in this claim, and the argument made to support it is illogical. As we understand the law, no new public highway can be established, by an order of highway commissioners, over lands owned as private property without there is either an agreement as to compensation and damages, or a release of the same, or an ascertainment of their amount by the verdict of a jury in the manner prescribed by the statutes. Here there was neither such agreement, nor such release, nor such ascertainment, either when the commissioners made their order, or when they proceeded to open a road across the right of way, or when, on August 20, 1894, they served a notice upon the railroad company to construct a crossing over its track and the approaches thereto. Therefore there was no public road or highway at the place in question when said notice of August 20 was given, and no legal duty or obligation, under sections 8, 9 and 10 of the act in relation to fencing and operating railroads, (Hurd’s Stat. 1893, pp. 1116, 1117,) imposed upon the railroad company to construct a crossing and approaches at that place within thirty days after such notice, and no legal liability under Section 11, on the part of the railroad corporation, for the necessary expenses incurred by the public authorities in making such construction. The stipulation, made and filed in December, 1894, in this suit, that was not commenced until September 26, 1894, could not, in the nature of things, have the effect of so relating back to August 20, 1894, as to give to land which was not at that time a public road the status of being then a public road; and if it could, then the company would, under a further provision of said section 11, “in addition thereto be liable to a fine of $100,” and the results reached would be palpable absurdities and in conflict with fundamental legal principles and rights. The concession by plaintiff in% error in this suit that the opening of the road by the commissioners across its right of way and track occasioned it no substantial, but only nominal, damages, is not, and was not intended to be, an admission that there was a public road there on said August 20, 1894, and it does not have the legal effect of establishing that there was then a public highway there.

The decision of this court in Chicago West Division Railway Co. v. Elevated Railroad Co. 152 Ill. 519, has no proper application to this case. There a condemnation proceeding was prosecuted under the provisions of the Eminent Domain act, and the questions of compensation and damages to the Chicago West Division Railway Company, as well as the questions of compensation and damages to the other party in interest, were duly submitted to a jury. The jury allowed such other party $32,860, but refused to allow even nominal damages to the Chicago West Division Railway Company. The uncontradicted evidence in the case was, that the present value of the reversionary interest, after the expiration of the lease for 999 years, was nothing whatever. We refused to reverse the assessment of the jury and the adjudication of the court and remand the cause merely for the assessment of nominal damages to a reversionary interest so remote, holding that such interest was so very remote that it might be ignored in the assessment. Besides this, it was held that the reason for the rule awarding nominal damages to a party having an interest in the premises, but who is really entitled to no compensation, had no application to the proceeding then before us. Here, however, the interest of plaintiff in error in its right of way and tracks was not remote. It was, and for nearly forty years had been, in the possession and sole control of its right of way and was operating its railroad thereon, and it had not, like the Chicago West Division Railway Company, had its day in court and the benefit of a verdict of a jury upon the questions of compensation and damages.

It would be a very unsafe rule, and one subversive of the guaranty of the constitution, that would allow those, other than the State, authorized to exercise the power of eminent domain, to take and appropriate private property and leave the questions of compensation and damages for future settlement or litigation; and it would endanger the lives and the property of the public, if those invested with the right to construct highways, railroads or other public improvements across an existing railroad right of way and railroad track were permitted to do so without the consent of the owner, or as the result of judicial proceedings to which such owner was not a party.

The rulings of the trial court upon the propositions of law submitted to it, so far as they are inconsistent with the views herein expressed, were erroneous. Upon the agreed state of facts the finding and judgment should have been for the defendant corporation.

The judgment is reversed.

Judgment reversed.