Commissioners of Highways v. Chicago & Northwestern Railway Co.

Lacey, J. The appellee moved the court to dismiss the appeal in this case for the following reasons: 1. The statute under which 'the road is established is unconstitutional. 2. That a franchise is involved. This motion was taken by the court to be decided on the hearing, and must be disposed of before the merits of the case can be considered. As to the first point it is insisted that Sec. 54 of the road and bridge act in question is unconstitutional, because it authorizes the taking of private property for private use, whereas it may only be taken for public use as is assumed. It is also insisted that the act is void, because the title of the act embraces more than one subject, and is, therefore, in conflict with Sec. 13 of the constitution; we think the point that the validity of a statute is involved as being in conflict with the constitution is not well taken. It will be seen that the act embraces only one subject, that of “roads and bridges,” and the right to condemn here is invoked for the purpose of condemning the right of way across appellee’s railroad track and grounds for public and private use, and not for private use alone, which is expressly authorized by the constitution. If there was a serious debatable question properly raised here in regard to the constitutionality of the statute it would be our duty to dismiss the appeal for want of jurisdiction, but we think such is not the case. It is said in Chaplin v. Highway Com’rs, 126 Ill. 264, “ That while a mere allegation in a pleading that a given statute is unconstitutional will not necessarily raise a question as to the validity of such a statute, yet where it can be seen that the constitutional question is one which may fairly he regarded as debatable, the question of the validity of a statute is involved in the case.” We cite also Pearson v. Zehr, 125 Ill. 573; Cook County v. Chicago Industrial School for Girls, 125 Ill. 540. The bill in this case makes no charge that the statute in question is unconstitutional, neither does it appear, so far as we can see, that the question was raised in the court below. We do not regard the question as attempted to be raised here, as being fairly debatable, neither do we think that a franchise is involved in this case. It will be seen from the record that the right to condemn the right of way under said Sec. 54 of the road and bridge act is not questioned, the issues in the court below appearing to be as to the regularity of the proceedings and the jurisdiction of the commissioners of highways to proceed. The case cited of C. & W. I. R. R. Co. v. Dunbar, 95 Ill. 571, we do not regard as in point. In that case there was involved the right under its charter to condemn certain right of way in the city of Chicago, without the city having passed an ordinance locating the line of the said railroad or fixing its terminus. This brought directly in issue the question of the extent of the corporate powers of the said company which, according to the opinion of the court in that case, are franchises. Here there is no question that the appellee can exercise all its lawful franchise to possess the right of way and track under its charter. It is only sought by appellants to establish a road across it, without impairing the right of enjoyment under its charter. But the most serious question involved here is one of freehold. Is there not a freehold involved? The Supreme Court until recently had held that a mere easement did not constitute a freehold. Lucan v. Cadwallader, 114 Ill. 285; Eckahart v. Irons, 114 Ill. 469; but those cases have now been overruled, and the opposite doctrine held to be the law. Chaplin v. Comm’rs of Highways, 126 Ill. 264. The last cited case was one where the commissioners of highways undertook to condemn the right of way for a ditch for the purpose of draining a highway in proceedings before a justice and a jury under the provisions of the 8th section of the road and bridge act. This, it was said, would cast a permanent burden on the appellant’s land. The court then goes on to say, “ the interest acquired by the exercise of the right of eminent domain inlands taken for railroads, highways, streets or alleys, or other like purposes, where the statute does not give the power to condemn, the fee is in the nature of a perpetual easement.” The court then asks, “ Is a perpetual easement which one party may have in the lands of another a freehold?” The question is answered in the affirmative with the citation of a number of authorities. The court then says that “the decree of the Circuit Court dismissing the bill is an adjudication affirming the validity of said proceedings and establishing the title of the municipal authorities and public to the property thus taken, by process of condemnation.” This the court say involves a freehold. Here the decree of the court is the reverse, but the appeal would require this court to declare such freehold established if the facts and the law warrant. The bill in this case avers that the appellee is the sole owner and possessor of the strip of land or right of way over which the road in question is sought to be established and has been such owner and possessor for twenty years and more. It amounts to a charge that appellee had the fee in said strip, but whether it only had a perpetual right of way or a fee, we can conceive that it makes no difference in this case, as the perpetual right of way or freehold is sought by the proceedings of the commissioners to be established. Therefore we think, in accordance with the holding of the Supreme Court in the case mentioned, there is a freehold involved in this case, and that according to the statute, the appeal should have been taken-directly to the Supreme Court. The appeal is therefore dismissed. Appeal dismissed.