Chicago & Northwestern Railway Co. v. Village of Jefferson

Bailey, J. At the time of the construction of that part of the complainant’s railroad in question in this suit, Diversey street was one of the highways of the town of Jefferson, then under township organization, and so remained up to the time of the incorporation of the village of Jefferson, embracing the same territory, under chapter 24 of the Bevised Statutes. The charter of the Chicago and Wisconsin Bail-road Company, the corporation by which the railroad was built, authorized that company to construct its railroad upon or across any road or highway which the route of said railroad should intersect, but required it to restore the road or highway intersected to its former state, or in a sufficient manner not to have impaired its usefulness. Under this legislative authority, said railroad was constructed across Diversey street, and it is not claimed that the highway was not at that time restored to its former state as required by the charter. The Chicago and Wisconsin Bailroad Company, and after the consolidation, its successor, the complainant, thereby acquired in perpetuity an easement in so much of the street as was occupied by the railroad. This easement is a property right, and it is as much protected from unlawful invasion as any other property; nor can it be taken or damaged for public use without just compensation. The vital question in the case is whether the construction of said ditch, in the manner contemplated by the defendants, will constitute a taking or damaging of the complainant’s property, within the meaning of the constitution. The railroad company, in acquiring its easement in the highway, took it subject to such rights as the public had already acquired therein, that is, subject to the right of the public to subject Diversey street to all the ordinary and proper uses of a highway. Is the construction of said ditch such a use? As is alleged in the bill and admitted by the answer, the ditch is being dug for the purpose of draining a large tract of low and marshy land, and is only a part of a general drainage system which the village authorities have adopted and are seeking to carry out. It is not pretended that it is in any way necessary to the improvement of the highway, or to its 'ordinary or appropriate uses, nor that it is being constructed for such purpose. Even if the village has the authority under the statute to adopt and carry out a' general drainage system, and to occupy a portion of a public highway for its drain — a question which it is not now necessary for us to determine — it seems clear that such occupancy of the highway is outside of and foreign to the proper uses of the highway as such, and subjects all property thereby taken or damaged to a new and additional burden. A. very similar question arose in City of Shawneetown v. Mason, 82 111.' 337. There the city raised the grade of a certain street, not with the view of improving the street, but to construct out of it a levee for the protection of the city against inundation from the Ohio river. The embankment was still used as a street, but in a suit by an adjoining property owner to recover damages resulting to his property from such change of grade, it' was held that, while the city had a right to elevate the grade of its streets, as it might think proper, the erection of the embankment was not a mere elevation of the grade, but an appropriation of the street to a new use, legitimate enough in itself, but still a use not implied from the laying out of the street; and therefore if the plaintiff’s property had been damaged by the erection of the embankment, he was entitled, under the constitution, to just compensation. We see no essential difference in principle between the case above cited and the present case. If the elevation of the grade of a street, so as to construct out of it a levee, constituted a new use not implied from the laying out of the street, it seems very clear that the occupation of a considerable portion of a street for the construction of a ditch, not for the improvement of the street, but for the purpose of draining adjacent lands, is a new use of the street, for which compensation must be made in case property is damaged thereby. That the property of the complainant will be damaged by the construction of the proposed ditch, is beyond question. The ditch is to be five feet wide at the bottom and at least nine feet deep and twenty-three feet wide at the top. This ditch the defendants, as they admit, propose to excavate under and across the railroad, and leave open without constructing any culvert or otherwise restoring the road-bed and track. It is alleged in the bill — and the allegation is in no way disproved —that such restoration of the railroad will involve an expenditure of from $1,000 to $1,500. To this extent at least, the property' of the complainant will be damaged. To pay this damage no provision has been made, and until some provision for its payment is made, the complainant is entitled, upon the case made by the bill and admitted by the answer, to have the construction of the ditch across the railroad enjoined. The court erred in dissolving the injunction and dismissing the bill, and the decree will therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Decree reversed.