Hartshorn v. Illinois Valley Traction Co.

71 N.E. 612, 210 Ill. 609

• Court: Illinois Supreme Court
• Decided: June 23, 1904
• Status: Published

Opinion

Mr. Chief Justice Ricks

delivered the opinion of the court:

The appellee, by its affidavits, designates four points where it is claimed the physical difficulties in the proposed upper road route exist. It is first said, that after leaving the Bluff street road and turning north on the road between sections 13 and 14,.a grade as high as eight per cent, near one place, is encountered. The distance that this grade must be maintained is not stated by appellee, but appellants say that such grade only exists for a short space, not exceeding 100 feet, and that the same can be overcome by proper cuts and fills, so that an average grade of three per cent or less can be established between the Bluff street road and the point where it turns east, at the north-east corner of section 12. Appellee also says that along the north line of section 12, for a mile, there is a sustained grade of three per cent. This statement is not supported, but is contradicted by all the profiles, cuts and surveys made of that route. It would require a fall of 158 feet to the mile to produce such a grade, and no such elevation is shown by any plat in evidence. In fact, practically 100 feet is the greatest elevation or the greatest distance between the lowest and highest point between any of the routes.

On the north line of section 7 in Utica township, and near the center of that line, is Crozier creek, which is designated as being about 80 feet deep and from bluff to bluff about 600 feet across. It is simply one of those depressions that is found in hilly countries, with a. waterway cut through the center. Some óf affiants for the appellee state that upon each side of this creek is a grade 1000 feet in length, each declining toward the ravine,— that upon the west side five per cent and that on the east side eight per cent,-—while the actual surveys and the testimony of those who made actual surveys show that the slope on the west side is 300 feet long, with an average grade of 3.8 per cent, and on'the east side of the ravine is 600 feet, with an average grade of five per cent. The bluffs along the line of the highway have been cut down considerably in making the highway, and between the bluffs a grade, said to be about 30 feet high and about 20 to 25 feet wide at the top, has been made for the use of the highway, and appellee says that if its road is constructed along this line the embankment for the highway, being so narrow, will not accommodate the general travel and appellee’s railroad, and that it will be necessary to build a trestle along the side of this embankment 600 feet in length, and, as the affiants for appellee say, 80 feet high. This latter statement, of course, must not be taken literally, but means from the creek to the level of what would be the road might be 80 feet, but no one would believe that there is such space of 600 feet with a depression across it that is 80 feet in depth, and the survey shows otherwise.

The next point, proceeding east, of which complaint is made, is Utica hill, which is located in section 8 and near the town of Utica. It is said of this hill that for 1800 feet there s an average grade of five per cent, and at places it is as much as ten per cent. This statement is absolutely denied by the affiants on behalf of appellants, who state that a road can well be constructed so that the grade will not exceed 5.8 per cent, following the highway, and that by deviating from the highway at a point 200 feet west of the center of section 8, running in a south-easterly course, it is entirely practicable to have a road with an average grade of 3.4 per cent; that to do this will necessitate procuring right of way over private property for 2900 feet; and appellee says that this would be practically as much private ground to be condemned as is sought to be condemned by this proceeding. Following the highway from the point of suggested deviation to the town of Utica the distance is 3133 feet, and by the deviation it would only be 2900 feet, thus avoiding the objectionable grade, and, what is said or claimed to be still more objectionable, short turns along and near the foot of this grade and near the town of Utica.

One other objection is urged by appellee, namely, the grade crossing with the Chicago and Rock Island railroad in the town of Utica. It is said that through this town some eighteen or twenty trains pass a day, not more than eight of which stop at the town, and that those that do not stop go through at a high rate of speed, and that the railroad approaches the town on curves from both sides, so that at the street crossings an approaching train cannot be seen. Appellants reply to this, that other street railroads do cross the same or similar railroad crossings, and that this particular road crosses similar crossings at other points and in other towns, and that while there is danger attendant upon it, it is not such a difficulty as prevents the construction of roads such as appellee’s at such crossings; and further, that as appellee proposes to cross both the railroad and canal on the route selected by it at a point where rock must be blasted and a high bridge maintained, it had' as well adopt the line that deviates at section 8 and continue its road by an overhead bridge across the railroad. A great number of plats have been introduced, and the affidavits of a number of persons on each side, in support of the respective contentions. Appellee offered the affidavits of a number of expert engineers who did not survey the road, and who spoke from information as to elevations that seems to be erroneous. Those testifying on its behalf say that they do not wish to be understood as saying that it is impossible to operate an electric railroad over the upper road, but in view of the hills and grades that are met with and the additional cost of construction and operation, and the damages that result from those conditions in the operation of the road, they do not regard it as practicable, but, on the contrary, altogether impracticable; while those who made the surveys for appellants, and a number of experts who did not make surveys, testify that it is practicable to follow the upper road the entire distance and to construct and operate an electrical road such as appellee proposes. The experts who made affidavits for appellants, who traversed the ground and examined the surveys made, agree that the grade at Utica hill is objectionable from an engineering point of view, because of the steep grade and short radius curve at the foot thereof, but say that if a deviation can be made, as they are informed it can, near Utica hill, and a descent into the town on a grade of three per cent be obtained, it is entirely practicable to construct the road between the two towns over the-upper road route.

As we read these affidavits of the various persons in behalf of appellee, we are impressed with the view that the most objectionable feature to this route, to appellee, is the distance, which is conceded to be 2.45 miles greater than the route it proposes to take. In the minds of those conducting its affairs two ideas seem to be of prime importance: speed and distance. Affiants on the part of appellee say that, ordinarily, it is estimated that the construction of such a road can be made at an average cost of $20,000 a mile, and that to construct this road along the line of the upper road would add to the cost $73,500. This additional cost is very largely made up by the extra distance, on the basis of $20,000 a mile. Of the cost $49,000 would be for the difference in distance, but in this particular matter appellee’s engineer placed the cost at $30,000 a mile, including the necessary trestles and bridges.

It does not appear to us a substantial reason for entirely abandoning the highway that the traveled way, or portion-of the way, is by an embankment that is not wide enough to accommodate the general travel and appellee’s road. There has p.t no time been any question of the right of appellee, or roads similarly organized, to acquire, by condemnation or otherwise, the necessary land for such deviation from the highway as the physical conditions require, and if it be that at any point the road should be too narrow or the turns too abrupt, we are entirely clear that appellee would have the right to acquire the additional width or to acquire the necessary land for proper turns. Nor are we impressed with the contention that the grades here complained of are insurmountable objects in the minds of appellee’s managers. The undisputed fact appears in this record that at Spring Valley this same company is operating a line from its power house in LaSalle, distant three or four times the distance from LaSalle to Utica, where a sustained grade of three to six per cent exists for 2000 feet, and the contention that it will require a heavier wire to operate its lines where the grades are distant from the power house must apply with greater force at Spring Valley than at any point betwéen LaSalle and Utica. It is also apparent that the route selected is not free from grades and from objectionable features in the construction of such railroads. At the eastern portion of said road, coming out of the town of Utica, there is a rapid decline showing practically 20 feet in 400 feet, and thence on toward LaSalle, for about half the distance, the ground is uneven and broken and requires a considerable embankment to be maintained and numerous cuts to be made, while the western half, lying next to the city of LaSalle, is quite broken, requires extensive cuts and fills, the blasting of rock, and contains grades ranging from three to eight per cent, besides requiring the construction of an extensive bridge across the railroad and canal.

While this statute (chap. 131a, sec. 1,) provides that a company such as appellee may appropriate any property necessary for the construction of its road, we must not lose sight of the character of such road in determining what is necessary for its construction. In Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295, we said (p. 307): “A street railroad, as is well understood, is a road constructed on a street or highway for the purpose of conveying passengers living upon or having business on such street or highway, its main object being to accommodate street travel. For this purpose the cars make frequent stops to take on and discharge passengers along the street or highway. Constructed, as it is, upon a public street or highway, it has no use for private property, unless it might need a small tract for a side-track, turnout or station, as an incident to its main line.” We further said (p. 308): “They may diverge for a short distance, where the conformation of surface or the position of streams makes it necessary, in orden to avoid discomfort or danger to the traveling public; but that a street railway may, like a steam railway, locate its route, not for the accommodation óf local travel along the highways, but to reduce time, and distance for passengers traveling from city to city or town to town across the country, is a proposition not to be entertained, and involves a perversion of the character and object of street railways.” Such railways may deflect from the highway where necessary, but they must make an honest effort to follow the highway, and until it appears that they are following the highway there is no basis or excuse for deflection and no right to condemn private property upon the theory that they are deflecting or diverging from the highway. Abandonment of the highway is not deflection from it, within the law regulating such companies. Appellee, at no place between the corporate limits of the town of Utica and the city of LaSalle, is upon, or purposes to construct its road along, a single foot of the highway that it is legally authorized to use. It claims to follow the Bluff street road part of the distance from the city of LaSalle toward the town of Rockwell, a little mining town near to the eastern boundary of section 14; but if it does, it is without authority, as the county board gave it no such right, and the right could only be granted by the county board. (Hurd’s Stat. 1899, chap. 131a, sec. 3.) Then, so far as basing its right to take the land in question upon the theory that it is deflecting or diverging or digressing from the highway, or that the taking of such land is incident to the exercise of such right or becomes necessary because of the inability of appellee to follow the highway at some particular point, is concerned, it may be said there is no foundation for such theory. The evidence shows that appellee made a preliminary survey and knew the condition of the upper road at the time it made its application to the county board for leave to follow such road, and the engineer who made that survey deposes, on behalf of appellants, that such route was entirely feasible and practicable. By following the upper road route appellee now claims that only thirty families, or about one hundred and thirty people, will be accommodated. By going the Bluff strept i route it goes through the village of Rockwell, and also,

i in its progress east, but across the canal and Rock Island railroad from it, is another manufacturing plant, called the Utica Hydraulic Cement Company, where there is a little settlement, and appellee claims that there is a foot bridge across the canal and railroad, by which it can have the patronage of this latter plant.

To an uninterested and unbiased mind it would appear that the main object of appellee is to parallel the railroad and to get the benefit of the traffic between the towns lying aloug it, and that it is not keeping an eye solely to the interest of the rural inhabitants along the public roads; nor can it be solely for the interest of the people living along these little settlements which it proposes to touch, as each and all of them are located both upon the Rock Island railroad and along the Illinois and Michigan canal, having already provided for them two methods of transportation. In considering the rights of these companies we are not to look alone to that which will best promote their financial gain. They are asking for the power of the State to take private property, and it is only upon the theory of a public use that such right can be granted to them, and appellee, in its effort to save distance, and thereby save expense of construction, and in its desire to establish and maintain rapidity of transportation, is, as we think, taking the character of such roads into consideration, departing from thé intention of the law-making branch of the government, by which such organizations were authorized. So far as they are authorized to travel through the country districts, it is upon the theory that they will be -of benefit to the rural inhabitants, and not that only those living in towns, where regular stations shall be maintained, shall be the beneficiaries. As was said in the Harvey case, supra, they are presumed to follow the highways, making" all the stops necessary for the accommodation of the people living along the highways. The fact that they have adopted electricity as their power instead of the horse or the dummy cannot enlarge their powers or lessen or change their duties. If the country districts are so sparsely settled that the traffic along them will not support such roads following them, then their construction is not a public necessity, and the power of eminent domain, upon the theory that they are to exercise a public function, cannot be called into action in their behalf. If they seek to travel across the country as do steam railroads, disregarding highways and disregarding the interests and conveniences of the country people, let them organize under the law regulating steam railroads, and be subject to the regulations of the statute and the burdens cast upon such railroads. On the other hand, if they wish to avoid these burdens and to avail themselves of the greater freedom and the right to burden the highways, then they must be willing to observe and perform the duties that they owe to the public as such.

The case of Aurora and Geneva Railway Co. v. Harvey, 178 Ill. 477, does not go to the extent here contended for. It is true that in that case it was said, in construing the word “necessarjq” in connection with the right to condemn, that it meant “expedient,” “reasonably convenient” and “useful to the public;” but in that case there was not a total departure from the route authorized, and appellee, as it seems to us, disregards that portion of the definition there given which required that it should be “useful to the public, ” but seems only to consult its own interest and welfare. If it means that it is impracticable to build this railroad through the country districts because there is not enough patronage to pay it to dp so, then there is no public necessity for it, and it cannot be said to be useful to the public as a street railroad.

We think the motion to dismiss the petition should have been allowed. The judgment of the county court of LaSalle county is reversed. Judgment reversed.