Metropolitan City Railway Co. v. Chicago West Division Railway Co.

Citations

• 87 Ill. 317

Syllabus

<p>1. Eminent domain—right to condemn is derived from State. The right of a corporation to condemn property and appropriate the same for the construction, operation and maintenance of a horse or dummy railway in the streets of a city, is derived solely from the State law, and the consent of the city authorities to the construction and operation of such railway is not a condition precedent to proceedings to condemn. Such consent can be obtained after condemnation as well as before, and, if given, is a mere license, revocable at any time before it is acted on.</p> <p>2. Same—proceeding to condemn a right of another admits his right. The filing of a petition by a railway company to condemn whatever “ property rights, interest or privileges” a defendant corporation may have in certain streets by contract with the city, admits the legality of that contract, at least for the purposes of the proceeding, and estops the petitioner from insisting the defendant has no interest in that which is sought to be condemned.</p> <p>3. Same—what property subject to.* Under our statutes, a company incorporated for the purpose of constructing and operating “horse and dummy railways,” has the right to enter upon and appropriate any property necessary for constructing its road, upon making compensation therefor, when ascertained according to law. Where a horse railway company operating its railway has, by contract with a city, acquired a right in not having a similar railway on certain other streets running parallel with its road, this will be property, in the sense of the Eminent Domain act, and may be taken and condemned for the use of a new company, where the public necessity so requires.</p> <p>4. Under our constitution, the property and franchises of incorporated companies may be subjected to public necessity, as well as the property of individuals; and the exercise of the right and power of eminent domain can never be so construed or abridged as to prevent the General Assembly from a