#### Chicago & Western Indiana R. R. Co. v. Chicago, St. Louis & Pittsburgh R. R. Co. et al.

1. Easement acquired by railroad in street.—Where a railroad company lays its tracks and builds its railroad on a certain street after having obtained permission and authority so to do from the town, the railroad company acquires a perpetual easement in the street. Such easement consists in the right to maintain, use and enjoy its railroad free from hindrance or molestation save such as is incident to the proper and ordinary use of the street by the public, aud will be as much protected from unlawful invasion as any other property right.

2. Construction of railroad track across another—Injunction. —The construction of a railroad track across a street upon which another railroad has its track, though built on the same grade, is a taking of the latter’s property for public use within the meaning of the constitution, and the latter is entitled to have the construction enjoined until compensation is made.

3. Damages.—In assessing the damages in such a case the total obstruction of the road while such tracks are being laid, and the permanent interference, by means of the crossing, with the business transactions over the road, would be proper elements to be considered.

Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

Opinion filed November 11, 1884.

This was a bill in chancery, brought by the Chicago and Western Indiana Railroad Company to restrain the Chicago, 8t. Louis and Pittsburgh Railroad Company from constructing its tracks across the tracks of the complainant in Wallace street, one of the public streets of the town of Lake, in Cook county. A temporary injunction having been awarded, the defendant appeared and filed its answer, and thereupon moved for a dissolution of the injunction, which motion the court sustained, and at the same time entered a decree “ that said bill of complaint be dismissed for want of equity appearing in the bill.” Prom this decree the complainant has appealed to this court.

The hill alleges that the complainant is the owner, and is operating, by itself and lessees, a railroad from its depot in the city of Chicago to the town of Dolton, in Cook county; that by the authority of the town of Lake it has constructed two tracks upon Wallace street, in said town, from 49th street south more than five miles; that such tracks are its main tracks, and have been in use for three years; that the business over said tracks is very great, being the entire freight and passenger business of five trunk lines of railroad, and that more than one hundred trains pass over said tracks each day.

It further alleges the defendant is an Illinois corporation, authorized to construct and operate a railroad from the Indiana .line to Chicago, and that it now owns and is operating such railroad; that it is constructing certain tracks in .the *589town of Lake, from its main line to that of the Pittsburgh and Ft. Wayne Railroad Company, but that such tracks do not form a part of its railroad into Chicago; and that it has never received and does not possess any legal authority, by its charter, to construct the same; that if said defendant has been authorized by ordinance, of the town of Lake to lay its said tracks over and across streets in said town, such authority is void because the defendant has not received from the State power to lay or operate such tracks, they not being a part of its tracks into Chicago, but designed merely to connect its tracks with those of other companies; that the defendant has laid said tracks up to the track of the complainant on Wallace street, but has not commenced the proper condemnation proceedings required by law, to have the damages that will be sustained by the complainant by reason of the construction of said tracks across those of the complainant ascertained, and to obtain the right to construct its tracks over those of the complainant by payment of such damages to the complainant; that at a point about 325 feet north of 59th street, in said town of Lake, the defendant has constructed its tracks up to those of the complainant on both sides of Wallace street, and is making preparation to lay them down across the complainant’s tracks, and is threatening to make such crossing, and that if it does so it will greatly embarrass and injure the complainant; that the defendant ought not to be allowed to proceed further with the work of constructing said tracks over those of the complainant until the damages that will be occasioned thereby to the complainant be first ascertained and paid to the complainant, and that the defendant, unless restrained from so doing, will construct said crossing without regard to the complainant’s rights.

The bill, which is sworn to, waives an answer under oath, and prays that the defendant be restrained from constructing said crossing, until the complainant’s damages to be caused thereby shall have been ascertained and paid to the complainant

The defendants answer, which is verified by affidavit, admits that it is informed and believes that the complainant has *590constructed and is operating its tracks on Wallace street, in the town of Lake, substantially as stated in said bill, but alleges that the defendant is not aware of the amount of business done over said tracks, or that any railroad companies other than the complainant are authorized to do business thereon; that if said tracks are so used, such use is unlawful and unauthorized by the complainant’s charter, or any ordinance of the town of Lake; that the statements in said bill as to the construction of said tracks bv the defendant, are inaccurate and untruthful; that the defendant possesses full and complete legal authority by its charter and the ordinances of the town of Lake to lay its tracks across streets in said town; that the defendant has not attempted to cross the complainant’s tracks and has no desire to do so, except in a legal, competent and proper manner.

The answer further alleges that the full and correct statement of the matter is as follows: The defendant being desirous of forming a connection with the Pittsburgh, Fort Wayne and Chicago Railroad Company on Stewart avenue, in said town of Lake, proceeded to purchase, and now owns in fee simple, a, strip of land running from their road in said town, at a point north of 59th street, parallel with and near to said street, and extending a distance of about two and one half miles to Stewart avenue, on the line of the Pittsburgh, Fort Wayne and Chicago Railway Company, at or near Ford street; that the lands so purchased are at no point less than sixty feet wide, and in some places are one hundred feet wide, and are in almost a direct line from the defendant’s road to that of said Pittsburgh, Fort Wayne and Chicago Railway Company; that having secured said lands, the defendant had an uninterrupted right of way between the two roads, save and except the right to cross the streets in said town of Lake; that the defendant made application to the trustees of said town for the privilege of crossing said streets, and that said trustees thereupon passed an ordinance granting to the defendant such permission,"which ordinance was afterward duly accepted by the defendant; that the defendant is thereby empowered to cross the streets in said town, and has laid down *591its tracks, and is ready to cross Wallace street; that on that street are laid the tracks of the complainant, an easement for that purpose having been granted to it by said town as averred in the bill; that such crossing being an indispensable necessity to the successful use of the defendant’s connection between said roads, the defendant gave notice to the complainant and had a conference with its officers in relation to the method.of crossing said street; that after considerable negotiation the complainant exhibited a disposition to prevent the defendant from using the rights which it had acquired under the ordinance of said town, and are obstructing the defendant in making said crossing; that the defendant has no intention to proceed to construct its tracks over those of the complainant in an unlawful, or violent manner, but was about to apply for an injunction restraining the complainant from preventing its making said crossing.

The answer denies that any damages will result to the complainant from the construction of said crossing, it being provided in said ordinances that said tracks shall be laid on said street at grade. It also claims that if the complainant has any remedy, such remedy is at law by condemnation proceedings.

Mr. Charles M. Osborn and Mr. S. A. Lynde, for appellant;

that the railroad company acquired an easement in perpetuity in so much of the street as was occupied by its track, cited C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 621.

Equity will enjoin a railroad company from entering upon and taking possession of another for the purpose of constructing its road until it has made compensation for the property proposed to be taken: High on Injunctions, 2d Ed. § 622; Comm’rs v. Durham, 43 Ill. 86; Shute v. C. & M. R. R. Co., 26 Ill. 438; C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 616; Stetson v. C. & E. R. R. Co., 75 Ill. 75; Patterson v. C., D. & V. R. R. Co., 75 Ill. 588.

Mr. B. Biddle Boberts, for appellees.

*592Bailey, J.

It appears, both by the averments of the bill and the admissions of the answer, that the complainant’s railroad runs for several miles upon and along Wallace street in the town of Lake, and that it was constructed upon that street by and with the consent of the municipal authorities of said town. It also appears that the defendant, being desirous of connecting its tracks with those of another railroad lying upon the opposite side of the complainant’s road, has purchased the land upon which to construct the connecting tracks, and obtained permission and authority from the town to lay its tracks across the intervening streets, and has actually laid said tracks the whole distance except-across the complainant’s road at Wallace street-. The question is, whether it has a right to cross the complainant’s road without its consent, and without making just compensation for such damages as will thereby result to the complainant.

It can not be doubted, we think, that the complainant, by laying its tracks and building its railroad in Wallace street, after having obtained permission and authorit)r so to do from the town, acquired a perpetual easement in the street. That easement consisted in the right to maintain, use and enjoy its railroad free from hindrance or molestation, save such as was incident to the proper and ordinary nse of the street by the public. As we said in C. & N. W. Ry. Co. v. Village of Jefferson, 14 Bradwell, 615, “This easement is a property right, and it is as much protected from unlawful invasion as any other property, nor can it betaken or damaged for public use without just compensation.”

It seems clear that the construction of another railroad across that of the complainant, though built on the same grade, is a taking of the complainant’s property for public nse, within the meaning of the constitution. It necessitates an interference with the track and road bed of the complainant’s road, which does not come within the proper and ordinary use of the street as a highway, atid which will necessarily, to some extent at least, impair the beneiicial enjoyment of the complainant’s easement, Before this can be permitted, the damages to the complainant’s property rights must be ascertained and compensation made,

*593To effect the crossing, the complainant’s tracks at the place in question must be removed and cross-tracks put in, thus necessarily causing, for the time being, a total obstruction of the road. But another and perhaps a more important element of damages may consist in the permanent interference, by means of the crossing, with the business transacted over the complainant’s road. It appears by the bill that over one hundred trains pass over their road daily, and it is hardly possible that trains passing the crossing on the defendant’s road will not form some considerable obstruction to the business thus.being carried on over the complainant’s road. That such obstruction constitutes an element of damage for which the complainant is entitled to compensation, seems to be settled in L. S. & M. S. Ry. Co. v. C. & W. I. R. R. Co., 100 Ill. 21.

But it is not necessary for us in this case to determine the measure of damages. It appearing that the construction of the proposed crossing will constitute a taking of the complainant’s property within the meaning of the constitution, the complainant is entitled to have the construction of the crossing enjoined until compensation is made. The authorities cited by the counsel for the complainant sustain the position that a court of equity will enjoin a railroad company from entering upon and taking possession of the property of another for the purpose of constructing its road, until it has made compensation to the owner for the property thus proposed to be taken.

It follows that the court below erred in dissolving the injunction and dismissing the bill for want of equity, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.