Chicago & Alton Railroad v. Joliet, Lockport & Aurora Railway Co.

Citations

• 105 Ill. 388
• 1883 Ill. LEXIS 102

Syllabus

<p>1. Eminent domain—condemnation of right of way for a railroad across the right of way and track of another railroad—covenant to construct and keep in repair the crossing—its admissibility in evidence—and its effect upon the question of damages. In a proceeding for the condemnation of a right of way for a railroad across the right of way and railway track of another railroad, the petitioning corporation offered in evidence a stipulation or covenant, regularly signed by the petitioner, in which it was expressly stipulated by the petitioner “that it would and should, at its own expense, put in, and thereafter maintain in suitable and proper repair, the frogs and crossing across two main tracks of the defendant; that this stipulation should be binding on the successors and assigns of said petitioner so long as a grade crossing should be maintained at the crossing the right of ■way for which was being condemned therein.” It was held, this was a valid obligation, enforceable against the petitioner, and its successors and assigns, and was properly admissible in evidence.</p> <p>2. The obligation being a valid one, securing the construction and maintaining of the proposed crossing at the expense of the petitioner, its successors and assigns, the cost thereof could not become an element of damages in favor of the defendant corporation, and would operate to exclude any evidence on behalf of the defendant on that subject.</p> <p>3. The stipulation is sufficiently definite as to the manner in which the work of making the crossing was to be done, and as to what extent it would affect the defendant. A “suitable and proper” crossing, is a phrase well understood by civil engineers and practical railroad men. Any marked departure from the stipulation in that regard would afford to the defendant a right of action for the recovery of any damages occasioned thereby.</p> <p>4. The force and effect of the obligation, as an instrument of evidence, and as to the exclusion of all questio