Appeal from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 21, 1970.
This is an eminent domain proceeding in which the petitioner, Medical Center Commission, a public body, appeals from an order which dismissed its petition to condemn parcels of land owned in fee simple by defendant, Chicago Transit Authority, a municipal corporation.
On March 28, 1967, the petitioner filed the petition to condemn so as to acquire title to a strip of land within its boundaries which was owned or used under an easement by defendant CTA and constituting part of its elevated right-of-way over which it operated rapid transit trains. The allegations of the petition included:
"(5) The property herein sought to be condemned and hereinafter described . . . is situated within the boundaries of said Medical Center District, is necessary and desirable for the lawful uses and purposes of petitioner and is also of the character and nature of property which the aforesaid statute of the State of Illinois authorizes and empowers petitioner to acquire as above set forth; . . . ."
The petition prayed that petitioner be awarded fee simple title to the strip of land "subject, however, to the rights of the Chicago Transit Authority."
The defendant CTA filed a traverse and motion to dismiss, which denied the right of the Medical Center to exercise the power of eminent domain as to the property or property rights of the CTA. The traverse and motion was based "on the fundamental eminent domain principle that property owned by a public body and devoted to public use is not subject to condemnation by another public body having only a general power of eminent domain."
On May 29, 1968, the trial court sustained the traverse and motion and dismissed the petition to condemn as to those parcels wherein fee simple absolute title was vested in the CTA. The instant appeal is from that portion of the order.
On appeal the Medical Center states that "the issue is whether a public body may condemn and take property owned by another public body for a use which will not interfere with the uses being made of that land by the public body from which the said property is sought."
As to the issue on appeal, the CTA asserts that "Appellant's purported statement of the `issue' herein is wholly inaccurate and inadequate. The true issues herein are: 1. When a Traverse and Motion to Dismiss is filed in an eminent domain case, does the condemning body have to establish, by competent evidence and proof, its right, power and authority to exercise the power of eminent domain? 2. Is it error to sustain and grant a Traverse and Motion to Dismiss, which is based on property being owned by a public body and devoted to public purpose, when in the hearing thereon, the condemning body fails to establish a specific legislative grant of power to condemn public property?"
Petitioner, Medical Center, maintains that "involved is a strip of land within the boundaries of the area of the Medical Center. The Chicago Transit Authority either owns the land or has an easement by which it maintains its right-of-way at least 14 feet above the land over which it operates its elevated trains. The land below the elevated tracks is not used by the Chicago Transit Authority and what is involved in this case is whether or not this land can be put to use by the Medical Center Commission. It would seem that a mere statement of the issue should resolve it. It is not only desirable for utilitarian purposes that this land be put to use (parking in the area is in short supply and getting shorter all the time); it is desirable to improve the tone of the surroundings. The Chicago Transit Authority has done nothing and has no plans with regard to the land under its right-of-way to either improve it or keep it free from being the refuse dumping ground of the neighborhood."
Petitioner asserts that it "has the obligation and the duty of putting together a Medical Center and the respondent the duty to provide public transportation on and over the same land. Both functions can be carried out and should be carried out with the public good being the sole consideration. The Medical Center seeks nothing that the Chicago Transit Authority needs to carry out its function and the cases cited by both sides support the contention of the Medical Center Commission that they ought to be allowed to take from the Chicago Transit Authority that which the Transit Authority does not hold or use."
Plaintiff's authorities include Peoria P. & J.R. Co. v. Peoria & S.R. Co., 66 Ill. 174 (1872), where the parties were two railroad corporations created by Act of the General Assembly. In order for plaintiff to have access to its land, it had to cross over defendant's land. The court ruled that the defendant's land was subject to condemnation, stating (p 176):
"The land of railroad corporations not actually in use by such company, or absolutely necessary for the enjoyment of their franchise, must be upon the same footing as the land of an individual, though that may be taken even from the actual and profitable use of the owner. We perceive no reason why, in this respect, railroad companies would claim and be allowed immunities not accorded to individual proprietors. The legislature has made no exception in their favor, and none in reason can be made."
Chicago West Division Ry. Co. v. Metropolitan West Side El. R. Co., 152 Ill. 519, 38 N.E. 736 (1894), where a petition to condemn defendant railroad corporation's ...