APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 24, 1953.
This is an appeal seeking review of an order of the circuit court of Cook County, entered on July 26, 1951, reversing a decision and order of the Illinois Commerce Commission of February 28, 1950, and later amended on March 28, 1950. The commission's order authorized the Illinois Central Railroad Company, hereinafter called appellant, and its subsidiary, the Kensington & Eastern Railroad Company, hereinafter called Kensington, to construct a spur track at grade from a point on the main line of the Kensington across the tracks of the Pullman Railroad Company, hereinafter called appellee, and a public highway known as Doty Avenue to a point in the Lake Calumet harbor area in the city of Chicago.
A joint application was filed on March 20, 1947, with the Commerce Commission by the appellant and the Kensington seeking permission to construct the spur line in question. The appellant is a trunk-line railroad operating in fourteen States and the Kensington is its wholly owned subsidiary operated from point of connection on the appellant railroad in the city of Chicago to a point on the Illinois-Indiana State line. The appellant's line of railroad is adjacent to and parallel to the Lake Calumet harbor area to the north and along the westerly side thereof, and the Kensington is adjacent to and parallel with the Lake Calumet harbor area on the west and on the south. The Kensington presently has no spur, industrial, team, switching or sidetrack into the harbor area. The application prayed a certificate of convenience and necessity authorizing the construction, maintenance and operation of a spur track crossing appellee's track and the public highway into the Lake Calumet harbor area. The appellee filed an answer to the application denying that the two roads were adjacent to Lake Calumet and that for either of them to make service available to the harbor area it would be necessary for them to construct a spur into the Lake Calumet harbor area. It denied that public convenience and necessity required the construction of such a spur and affirmatively argued that such construction by the appellants would constitute an extension of line within the meaning of section 1(18) of the Interstate Commerce Act, which is a matter exclusively within the jurisdiction of the Interstate Commerce Commission. Subsequent thereto the commission granted leave to the Chicago, Rock Island and Pacific Railroad Company to intervene on the ground that it had filed a petition with the Interstate Commerce Commission to acquire control of Pullman and accordingly became a party in interest. Inasmuch as no question has been raised as to the propriety of the Rock Island appearing in this proceeding nor any denial that it had acquired the rights of Pullman by reason of its acquisition of Pullman it will be grouped with Pullman in this cause and referred to as appellee.
The evidence in the case, together with the exhibits, is somewhat lengthy. Reducing it to the minimum essentials, it appears that the Pullman Railroad Company, appellee here, has a line which interposes itself between the Lake Calumet harbor area and the appellant and Kensington.
The mouth of the Calumet River, which empties into Lake Michigan, is located at approximately Ninetieth Street on the south side of the city of Chicago. The proposed Lake Calumet harbor development begins at approximately 110th Street and extends south to approximately 130th Street. From 95th Street to a point just south of 119th Street, the Pullman railroad lines lie a considerable distance east of the Illinois Central and the Kensington, and between those lines and the harbor area. At a point just south of 119th Street, the Kensington and the Pullman are immediately adjacent to each other in a southeasterly direction. At 127th Street the line of the Pullman railroad swings to the east and into the Calumet harbor area. The line of the Kensington also swings to the east but is again south of the Pullman tracks.
Chronologically, the predecessor of Pullman, the Pullman Palace Car Railroad Company, came into being in 1880. In 1904 the appellant, through Kensington, began, and in 1909 completed, construction of a line of road east-ward to the Illinois-Indiana State line. In 1906 Pullman was incorporated. Its predecessor, Pullman Palace Car Railroad Company was constructed in 1880. Between 1877 and 1880 Pullman interests purchased nearly 4000 acres of land between 87th Street on the north and 138th Street on the south, extending from the Illinois Central tracks to the western shores of Lake Calumet. Three thousand acres have been sold, of which 1000 acres are now occupied by industries. In 1909 Pullman extended its service to 126th Street. In this vicinity in 1909 were two industries, the Knickerbocker Ice Company and Swift & Company, both of which were east of the railroads. At that time Pullman, as well as Kensington, served the Knickerbocker ice house, while Kensington alone served the Swift plant. In 1915 Pullman extended its line and also began serving the Swift company. Kensington then removed its spur facilities in the area due to poor revenues, and thereafter the Pullman continued to serve both Swift and Knickerbocker until 1934.
In 1916 Pullman extended its line to the south and as far as 130th Street, thence around the southerly end of Lake Calumet in an easterly direction to the Calumet River. It appears that from 1934 to the present time no industry other than the United States Navy Warehouse has been in the Calumet harbor area and this industry has been served by Pullman. This warehouse is at the southerly end of Lake Calumet.
In 1913 the Illinois legislature granted the city of Chicago power and authority to own and operate a harbor and the necessary facilties in connection therewith. In 1921 the legislature granted Chicago all right, title and interest to the bed of Lake Calumet except the part falling within the limits of the harbor in accordance with the plan of the city. The evidence on behalf of Pullman indicates that the extension of the road to the Navy warehouse area was part of a plan to encircle the entire harbor area when so notified by the city of Chicago in accordance with the harbor plan. At that time agreements were executed between the city of Chicago and the Pullman interests whereby these interests waived their riparian rights to four miles of lake front, including that part upon which the appellant proposes to build its tracks. It appears that after the extension of the line in 1916, rail service, such as it was, to and from the territory, has been performed exclusively by Pullman or its successor in interest.
In 1943 the Illinois Central made a survey indicating that the primary requisite for the establishment of additional industry was the making available the services of a strong trunk-line carrier to the harbor area. After making a survey, the Illinois Central obtained commitments of two interests to locate in the harbor area. Since that time the Illinois Central has made various moves designed to further the building up of the area in question.
It is admitted that the proposed spur of the appellant, to reach the Calumet area, would necessarily have to cross the right of way of Pullman and also cross Doty avenue, a public highway, east and parallel to both the Kensington and Pullman. It is further admitted that the construction of this particular spur or any other spur could and would provide a direct service to the harbor facilities for coal shipments which primarily originate on the Illinois Central. At the present time Pullman has authority for two spurs, one across Doty Avenue at 107th Street and one across Doty Avenue at 129th Street to serve interests in the area.
It appears that the Pullman-Rock Island is presently serving 21 industries in the territory adjacent to the proposed Lake Calumet harbor area. These industries occupy 1000 acres and are served by nearly 300 miles of track. It further appears that during the year 1946 Pullman handled 50,000 cars from and to its industries. It further appears that from 95th Street to 130th Street at the present time no railroad other than Pullman has any trackage whatsoever in the territory involved here. This covers a north and south area from 95th Street to 130th Street. It also appears that neither the appellant nor the Kensington serves any industry in the area from 95th to 130th streets between the line of railroads on the west and Lake Calumet and the Calumet River on the east. There was no industry on the rails of the Kensington.
On this record the commission found that there are extensive plans for the industrial development of the south Lake Calumet area; that one of the most important aspects of the plan development would be a terminal facility for transferring coal from railroad cars to ships; that existing coal transfer facilities and rail service afforded this area were inadequate; that the public would derive definite advantages and benefit if the proposed harbor area were served by the Illinois Central; that public convenience and necessity require the construction of the proposed spur; and that public safety required a grade separation between the proposed spur and the public highway which it would cross. Authorization was then given the Kensington and the Illinois Central to construct a spur at a later date.
The appellees argue that the Illinois Commerce Commission exceeded its jurisdiction in that the track in question, under the law, is an extension of the line of the Illinois Central and not a spur track and that in such cases the Interstate Commerce Commission has exclusive jurisdiction to authorize the construction. (Texas and Pacific Railway v. Gulf, Colo. & Santa Fe Railway Co. 270 U.S. 266.) They further suggest to this court that the findings of the commission are insufficient to support its conclusions, citing Dixon v. Pitcairn, 362 Ill. 213, and further pointing out that present, not future, public convenience and necessity is required in any determination by the commission. (Southern Pacific v. Western Pacific, 61 Fed.2d 732.) The last allegation by the appellee, of any importance, is that public convenience and necessity do not require the construction of the track sought to be constructed, inasmuch as the Pullman-Rock Island is rendering adequate service in the territory and there is no finding to the contrary, and also no finding that the Pullman-Rock Island cannot render adequate service in the future. They state, under the ...