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III. CONSTRUCTION OF THE EMINENT DOMAIN
CLAUSES.

What constitutes a public use. Property cannot be taken except for public use. To constitute a public use the property must be employed so as to render a substantial benefit to a relatively large group of persons. There are four types of cases. (1) Property may be taken by the state or by its public or municipal corporations for the purpose of housing the various departments and agencies of government. (2) Property may be taken for the purpose of enabling the state or its agencies to carry out its functions of government, such as would be in the interest of trade, commerce, navigation, public health, safety and general welfare. Accordingly land may be taken for the improvement of navigation,3 for jails, public hospitals, public schools, public parks, roads and streets," forest preserves, and for the carrying on of any business legally conducted by the state or by its agents. The Attorney General has given an opinion that the state has power to take over the coal mines in times of emergency such as were brought on by war conditions.9 (3) Property may be taken by private corporations if the use to which the property is to be devoted is of a character such that the public have the legal rights to demand some service. Land may under authority of statute be taken by railroad companies and other public utilities to enable them to carry on such business.10 Public grist mills come within the rule.11 (4) In a limited number of cases, under express constitutional provisions, land may be taken for uses which in the absence of constitutional provision may have been regarded as private, such as for roads for public and private use12 and for drainage purposes.

13

But few cases have been presented in this state where the court has ruled that a use is not public. It has been held, in the following cases, that the proposed use was not public: the taking of a right of way by a coal mining company," the taking of land for a mill of which

1C. C. C. & St. L. Ry. Co. v. Drainage District, 213 Ill. 83 (1904).

* Deneen v. Unverzagt. 225 Ill. 378 (1907).

3 Beidler v. Sanitary District, 211 Ill. 628 (1904).

General, 1908, p. 85.

4 County of Mercer v. Wolff, 237 Ill. 74 (1908).

Opinions of the Attorney

5 Village of Depue v. Bauschenbach, 273 111. 574 (1916).
Chicago v. Lord, 276 Ill. 549, 277 Ill. 407 (1916, 1917).

Perkins v. Commissioners of Cook Co., 271 Ill. 449 (1916).
Helm v. Grayville, 224 111. 274 (1906).

Opinions of the Attorney General, 1917-18, p. 606.

10 L. S. & M. S. R. R. Co. v. C. & W. I. R. R. Co.. 97 Ill. 506 (1881).

11 Gaylord v. Sanitary District, 204 Ill. 576 (1903).

12 Const. 1870. Art. IV. Sec. 30.

13 Const. 1870, Art. IV, Sec. 31.

14 Scholl v. German Coal Co., 118 111. 427 (1887).

the public had no right to demand a service,15 under the constitution. of 1848, the taking of land for a private road,16 and the taking of land by a railroad for a side track to a manufacturing plant for the sole purpose of transporting the products of the plant.17

Condemnation of property already devoted to public use. It is well established that property already devoted to public use is still subject to condemnation for other public uses. The question of the propriety of authorizing the condemnation of such property is primarily a legislative question, but is subject to judicial review.18 Where the legislative grant of the power of eminent domain is general, the condemnation of property already devoted to public use will be upheld only when the court finds that the new use will be a different use, not necessarily different in kind but in degree, by which the public obtains some additional advantage. Extensions of streets across railways,19 and railways across streets,20 and across other railways21 constitute new uses. A railroad may condemn land belonging to another railroad which is not devoted by the latter to railroad purposes,22 or even a part of the tracks of another railway for a short distance,23 but cannot condemn a considerable portion of the right of way. A city sewer may be constructed through land devoted to public uses by a sanitary district.25 But a general grant of the power of eminent domain to a city does not authorize the condemnation, by the city, of a strip of land through a county poor farm,26 nor the condemnation of a part of a library building for a city street.27 The taking of property already devoted to public use does not impair the obligation of any contract.28

There is one special problem which has arisen in this state with reference to the power to condemn land dedicated to public use. A portion of what now comprises Grant Park in the city of Chicago was dedicated by the Canal Commissioners to the public. The plat designated the lake front strip as "open ground, no buildings". Another portion was dedicated by the United States and the plat similarly stated "public grounds forever to remain vacant of buildings." These dedications were duly accepted by the City of Chicago.

15 Gaylord v. Sanitary District. 204 T11. 576 (1903).

16 Nesbit v. Trumbo. 39 Ill. 110 (1866). Art. IV, Sec. 30, Constitution of 1870. expressly allows the taking of land for roads for private and public use. 1 C. & E. I. v. Wiltse. 116 Ill. 449 (1886).

18 People v. Walsh. 96 Ill. 232 (1880); L. S. & M. S. R. R. Co. v. C. & W. I. R. R Co., 97 11. 506 (1881).

19 C. R. I. & P. R. 'R. Co. v. Lake. 71 Ill. 333 (1874); C. & A. R. R. Co. v. Pontiac. 169 Ill. 155 (1897).

20 M. City Rv. Co. Chi. W. D. Ry. Co., 87 Ill. 317 (1877).

21 E. St. L. & C. Ry. Co. v. B. C. Ry. Co.. 159 III 544 (1896); I. C. R. R. Co. v. C. B. & N. R. R. Co.. 122 III. 473 (1887).

22 W. D. Ry. Co. v. El. R. R. Co.. 152 Ill. 519 (1894).

23 L. S. & M. S. R. R. Co. v. C. & W. I. R. R. Co., 97 III. 506 (1881).

24 Central Ry. Co. v. Fort Clark H. Rv. Co., 81 Ill. 523 (1876).

25 Chicago v. Sanitary District. 972 T. 37 (1916).

26 Edwardsville v. Madison. 251 11. 265 (1911).

27 Moline v. Greene, 252 Ill. 475 (1911).

28 Hyde Park v. Cemetery Association, 119 III. 142 (1886): West River Bridge Co. v. Dix, 6 How. (U. S.) 507; Long Island Water Supply Co. v. Brooklyn, 166 U. S., 685.

The general assembly of Illinois subsequently authorized the condemnation of the easements thus created and possessed by the owners of the property abutting on the park, and authorized the erection therein of a museum. The court held29 that the General Assembly had no power to authorize the condemnation of these easements because the land had been accepted under these restrictions, although the general holding is that property already subjected to public use can be condemned for other uses, and that the state cannot irrevocably barter away its power of eminent domain, and that the breach of any agreement not to exercise the power of eminent domain does not impair the obligation of any contract.30 The decision was not expressly based upon the ground that the proposed new use was not public but was based upon the broad proposition that the state, having accepted the land with the restrictions, could not rid itself of them for any purpose. Three of the members of the court dissented. The precise point has apparently not arisen elsewhere. In view of the probability that the needs of the state may often demand a change in the use of property dedicated under restrictions, this decision may prove of difficulty.

Power to condemn fee in land. Under existing statutes in Illinois it appears to be true that the power of eminent domain may not be exercised by local communities for the purpose of condemning the fee of land. Several of the decisions upon this matter seem to squint at a notion that there is a constitutional protection in the individual not to be deprived of a fee if less than a fee may be regarded as sufficient to meet the public need. Some constitutional basis for this view seems to be implied in the case of Tacoma Safety Deposit Co. v. Chicago,31 although the real basis of the court's decision will be found on page 197: "This property was condemned in 1851, and at that time there was no statute in force in this state expressly authorizing a city to take the fee of real estate for street purposes, and we think the law is clear that before the city could acquire the fee to said real estate for street purposes, it must appear there was a statute in force which, by its terms, or by necessary implication, authorized the city to take said property in fee for the purpose of widening said street".

A similar statement will be found in the case of Miller v. Commissioners of Lincoln Park,32 and in the case of Lockie v. Mutual Union Telegraph Co.33

The actual decisions so far upon this matter have been based upon purely statutory grounds, and have construed a right to condemn conferred by statute as a right to condemn a user only. Of course, it

29 South Park Commissioners v. Ward, 248 Ill. 299 (1910). contrary in L. & N. R. R. Co. v. Cincinnati, 76 Ohio St. 481.

Dictum to the

39 Village of Hyde Park v. Cemetery Association, 119 Il. 142 (1886); Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; West River Bridge Co. v. Dix, 6 How. 507.

31247 Ill. 192 (1910).

32278 Ill. 400 at page 407 (1917).

33 103 Ill. 401 (1882).

is possible that the court, having taken this view, might at some time. if the constitution is left unchanged, take the further step of saying that the words "public use" are to be limited to the taking of only such an interest in the property as is essential for the purpose. On the analogous questions of the necessity for a particular taking and of the amount of land needed, it has been held that these questions are for the court, although the condemning authority possesses a wide discretion in these matters.34 In other states it is held that the fee may be taken.35

The only express constitutional limitation in Illinois upon the power of the general assembly to authorize the taking of the fee in lands is the unusual provision, found in Art. II, Sec. 13, which declares that the fee of lands taken for railroad tracks shall remain in the owner. This restriction upon railroads is found only in the constitutions of three other states, Missouri, Oklahoma and South Dakota.

It has been urged that this restriction upon railroads is unjust because the effect of an abandonment of an easement or of its use for a purpose other than the one for which it was condemned causes a reverter to the owner or to his heirs. In its report on excess condemnation, the Chicago Bureau of Public Efficiency in urging the elimination of this clause, states:

36

"There is a public interest in this matter in connection with city planning. One of the aims of Chicago City planners is to secure a rearrangement of railroad terminals in Chicago which would permit of the abandonment for railroad use of considerable railroad property. It would seem that the constitution should provide that the railroads, after having made use of property in good faith for railroad purposes for a specified number of years, should retain title and have the power to sell it and retain the proceeds in case the city authorities agree and it is no longer needed for railroad purposes."

Taking and damaging of property. The constitutions of 1818 and 1848 required the payment of compensation only when property was taken or applied to public use. The word "applied" seems not to have been construed, nor to have added anything to the word “taken”. The taking of title or of an easement clearly came within the protection of the clause. Additional servitudes upon land constituted a taking. The typical cases arose where a city street, the fee of which was in the abutter, was used for railroad purposes, or for telegraph or telephone lines.38 Street railways were held to be but a natural

use of the street and therefore did not constitute an additional servitude.39 Where the fee of the street was in the city, the property

34 Chicago v Lehman, 262 Ill. 468 (1914).

35 Attorney General v. Williams, 174 Mass. 476; Dingley v. Boston, 100 Mass. 544; Fairchild v. St. Paul, 46 Minn. 540.

36 Bell v. Mattoon Waterworks Co., 245 111. 544 (1910); Sullivan v. Atchinson, etc. R. R. Co., 251 Ill. 108 (1911); C. & E. I. R R. Co. v. Clapp, 201 Ill. 418 (1903). 37 I. B. & W. R. R. Co. v. Hartley, 67 Ill. 439 (1873); Wilder v. Aurora Traction Co.. 216 Ill. 493 (1905).

33 Board of Trade Tel. Co. v. Barnett. 107 Ill. 507 (1883); Burrall v. Am. Tel. Co., 224 111. 266 (1906).

39 C. B. & Q. R. R. Co. v. West Chicago Street R. R Co., 156 Ill. 255 (1895).

could be put to any use without compensating abutting owners for resulting damage sustained by them." For injuries to rights in land, which did not constitute a technical taking, there was a right to compensation whenever the invasion of the natural right produced a direct and physical injury to property, such as the overflowng of the owner's land. In many jurisdictions the word "taken" was given a more restricted meaning. Under the Illinois rule the property owner was given some right to compensation for consequential damage, but since this right was limited to direct and physical injuries, his rights. were not coextensive with his rights against private persons at com mon law. There was one apparent exception to the rule that consequential injuries to property did not constitute a taking. Where a part of a tract was taken and the part not taken was injuriously affected, it was held that the entire injury, measured by the difference between the fair cash market value of the part not taken before and after the taking, plus the fair cash market value of the parcel taken, was a taking. This rule has remained unchanged under the constitution of 1870.43

The primary reason for a change in the Constitution of 1870 was to give the owner, no part of whose land was taken, a right to recover compensation for injuries of a non-physical character. This change was accomplished by the introduction of the word "damage”. Illinois was the first state to adopt this change. As the provision now reads: "Private property shall not be taken or damaged for public use without just compensation."

Provisions of like nature have now been adopted in Arizona, Arkansas, California, Colorado, Georgia, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. In some states where the constitution does not provide for a right to compensation for the damaging of property the right is conferred by statute. In Massachusetts this practice has prevailed for many years. In some cases the statutory right to damages goes beyond the requirement of any constitutional provision, as for example, in Massachusetts and New York, where land is taken and submerged for the purpose of creating a water supply, statutes authorize the recovery of damage to business conducted on land taken. In such cases the prevailing rule is that the owner is limited to the market value of his land.45

Some difficulty has been encountered in defining the word "damage" in this new constitutional sense. The court had three alternatives open: (1) It might have held that the effect of the change was to impose the same degree of liability for damage inflicted under legislative authority, as had always been imposed at common law upon

Moses v. P. R. R. Co., 21 III. 516 (1859); Murphy v. Chicago, 29 Ill. 279 41 Nevins v. Peoria, 41 III. 502 (1866).

(1862).

42 State v. Evans, 3 Ill. 208 (1840); Curry v. Mt. Sterling. 15 Ill. 320 (1853). 43 W. St. L. & P. R. R. Co. v. McDougall, 126 II. 111 (1888).

Earle v. Commonwealth, 180 Mass. 579. In re Board of Water Supply 142

N. Y. S. 83, Laws 1909 N. Y. Ch. 56, Sec. 7.

Braun v. West Side El. R. R. Co. 166 111. 434 (1896).

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