Stetson v. Chicago & Evanston Railroad

Citations

• 75 Ill. 74

Syllabus

<p>1. Injunction—to restrain railway company from, constructing and operating its road in street until damages to adjacent lots a/re ascertained and paid. Where a railway company under authority from a city has located its road upon a public street or other lands not belonging to the complainant, and is constructing the same upon which to operate its trains, a court of equity will not entertain a bill to restrain the operation of the road until the complainant’s damages to lots owned by him abutting on the street are' ascertained and paid, but will leave him to his remedy at law.</p> <p>3. Stbeets —preventing their use for railroad purposes. It may be regarded as the settled law of this State that an owner of an abutting lot cannot prevent the use of a street for a railway when such use is permitted by the city and is authorized by an act of the legislature. This is upon the principle that the adjoining proprietor has no interest in the fee of the street. But where the fee of the street remains in him subject to the public easement, the rule is different, for the reason that the railway in such case is an additional burden upon his land.</p> <p>3. Eminent Domain — what is meant by property damaged. The words, in the act relating to the exercise of eminent domain, “which may damage property’not actually taken,” relate to contiguous lands of the same owner, a part of which only are taken, so that when the party seeking condemnation-has -not embraced all the owner’s contiguous lands not actually taken, but damaged, the owner may file a cross petition and have the damages to the other lands assessed. But even in that case the damages must be direct and physical and result from the taking of a portion of his land.</p> <p>4. Under this act where no portion of a party’s land is taken or sought to be condemned for use, he is not entitled to have proceedings instituted to ascertain what damages his property will sustain by the construction and operation of a railway upon oth