| Ill. | Sep 15, 1876
Lead Opinion
delivered the opinion of the Court:
Elaborate and exhaustive arguments have been made on every phase of this case as presented by the record, but we think the decision rests upon the determination of a single question, viz: whether equity will assume jurisdiction to enjoin use of a railroad upon a street until the adjoining landowner’s damages shall have been assessed and paid under the Eminent Domain Act. Since the decision in Stetson v. Chicago and Evanston Railroad, 75 Ill. 74" date_filed="1874-09-15" court="Ill." case_name="Stetson v. Chicago & Evanston Railroad">75 Ill. 74, this can not be regarded as an open question in this court. It was there definitely declared, the acts of a railway company in proceeding to construct its road, within its charter powers, in a. street in a city, under a license granted by ordinance, without first making compensation to an abutting landowner claiming to have sustained consequential damages thereby, are not unlawful, and lienee there is no ground for interference of a court of equity. It would serve no purpose to repeat the reasoning by which that conclusion was reached.
In this case, as in that, it was contended, under that clause of section 13, article 2, of the constitution, which provides “ private property shall not be taken or damaged for public use, without just compensation,” all abutting landowners are entitled to have such consequential damages as they may sustain, assessed and paid, before a railroad company can acquire any right to put down and operate a track in a public street, and that putting it down without such assessment and payment is a violation of law. But in our former decision it was distinctly ruled, such company was not bound to make compensation for consequential or expected damages that might result to others, previous to entering upon its own land, or lands of others riot complaining, to do work it has a lawful right to do under powers conferred by its charter. It was declared that, under the Eminent Domain Act, passed in pursuance of the provision of the constitution cited, where no portion of his land was actually taken or sought to be condemned for public use, such adjacent owner is not entitled to have proceedings instituted, to ascertain what damages his property might sustain in consequence of the construction and operation of a railway upon contiguous or adjacent lands in which he has no interest. English statutes contain provisions, in substance, the same as our Eminent Domain Law, and have received the same construction.
The case we are considering affords another striking illustration of the reasonableness of the rule announced. One subject of contention between the parties is, whether complainants’ property has suffered any deterioration, or has been damaged in any way by reason of the construction and operation of the railway in „ the street in front of it. The company maintain, no injury has been done, and it would be an anomaly in judicial proceedings if the corporation should present a petition alleging the adjacent property has sustained no damages, and ask to have that question adjudicated. It will be observed, the decree in this case imposed upon the railway company the duty to “ condemn and acquire the right to construct and operate ” its road in the street. That right it already had, under its charter from the State, and a license granted by ordinance. But what was there to condemn ? Ho part of complainants’ land was taken or wanted for public uses, and whether consequential damages would result to the- owners from the construction of a railway on other lands, is a matter of evidence. As we have seen, the fact a party has or might sustain injury indirectly, constitutes no valid reason why a corporation may not enter upon its own lands, or upon lands of others in which he has no interest, to construct a railway or other public improvement. That is this exact ease. The objectionable track is constructed wholly in the street, the fee of which is conceded to be in the municipal corporation granting the license. Ho property of complainants has been taken for public uses, nor is there any reason for condemning any portion of it; and if the owners have sustained any damages as a result from what the railroad company has done, under its charter, on other lands under a license from the owner of the fee, redress can be had in an appropriate action at law. Such cases can be referred to no general head of equity jurisdiction. As was said in Stetson v. Chicago and Evanston Railroad, supra, the party complaining will be left to his action at law. When he -has settled the question of his right to damages, and ascertained the measure, if any reason exists, as, on -account of insolvency, why he can not have execution of the same, equity will then assist him by injunction or otherwise, but not before.
The decree-will be reversed, and the bill dismissed at costs of complainants.
Recree reversed.
Dissenting Opinion
dissenting:*
Upon the footing of the city ordinance in this case, if on no other ground, I regard the complainants as entitled to relief. The condition of the ordinance granting to the company permission to lay its track in the street was, by its fair meaning, that abutting lot-owners should be paid the damage to their property on account of the railroad, to be ascertained by contract or condemnation before laying the track. The company availed itself of the permission, and laid its track without performing the condition. I think the company should be held bound by the condition, and that equity should take jurisdiction to enforce the performance by the company of the condition of the ordinance. I consider it as improper, in this proceeding, to render a separate judgment for particular acts of damage which had been done, but there should have been an assessment of the entire damage to the property, by reason of the construction and operation of the road, once for all. I do not regard it as essential, to have required a new and distinct proceeding to have been formally taken under the Eminent Domain Law; but the court might, in this same proceeding, have caused the damage to be ascertained by a jury; that that would have sufficiently accomplished the substantial purpose of the condition of the ordinance.
I think the cause should be remanded. The complainant is, in my opinion, entitled to relief in the mode suggested by Mr. Chief Justice Sheldon. Whether the view of the Chief Justice as to- the construction of the ordinance be correct or not, it is my opinion that the insolvency of the defendants presents sufficient ground for the intervention of a court of equity, without waiting for complainant to establish his claim for damages in an action at law.
Mr. Justice Breese: I concur with the Chief Justice.