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Crane Paper Stock Co. v. Chi. & Nw. Ry. Co.

OPINION FILED MARCH 18, 1976.

CRANE PAPER STOCK COMPANY ET AL., APPELLANTS,

v.

CHICAGO AND NORTHWESTERN RAILWAY COMPANY ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Daniel A. Covelli, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

In 1964 plaintiff, Crane Paper Stock Company, initiated this lawsuit against defendants Chicago and Northwestern Railway Company (hereinafter Company) and the City of Chicago alleging that in connection with a 1959 purchase of property from the Company plaintiff was also granted an exclusive easement over a long narrow strip of land connecting plaintiff's property and the Company's main tracks. Plaintiff's industrial and manufacturing buildings were then receiving from defendant rail service necessary to plaintiff's successful business operations over spur tracks owned and maintained by the Company on the site of the easement. Conveyance by the Company to plaintiff of the easement was for the purpose of enabling plaintiff, should the Company at some future date discontinue service, to install its own spur tracks, and thus insure continued rail service. The deed creating the easement expressly provided in part:

"if said [Company] should discontinue to operate and maintain said spur track and does not furnish railroad service to [plaintiff's property] over any other spur track belonging to [the Company], then and in that event and only as a secondary measure, will said [plaintiff] be put to the expense and trouble of establishing his own spur track over [the easement property], for which eventuality [plaintiff] is receiving an exclusive easement from [the Company]."

Plaintiff further alleged that in 1961 the Company granted the City of Chicago a perpetual easement for the construction of a bridge over the tracks as part of the Dan Ryan Expressway. This agreement, it was alleged, also provided that the City could erect a permanent concrete supporting pier approximately 177 feet long and 3 feet wide; that as a result of the construction of the pier, the easement was no longer available for railroad use, as a consequence of which the Company removed its tracks from the easement and placed them upon property to the north of the easement.

Plaintiff prayed that the court (1) declare the nature, extent and existence of plaintiff's easement; (2) order the immediate removal of the concrete pier and restoration of the spur track; and (3) award suitable damages for the cost and expense involved in the establishment of plaintiff's easement.

The Company answered that plaintiff's easement was in fact only a right to an easement in the future, which would vest only if the Company should totally discontinue rail service to plaintiff's business. The Company affirmatively asserted that it continued to furnish railroad service to plaintiff's business over the spur track that had been relocated from the easement property after construction of the pier. The Company also sought relief from the City based on an alleged indemnification agreement. The answer of the defendant city generally denied the allegations of the complaint and demanded strict proof.

During 1965 the trial court allowed plaintiff's motion for summary judgment, holding that plaintiff had acquired an exclusive, presently effective easement; ordered defendants to remove the concrete pier and restore the spur track to its original location; and ordered the City to indemnify the Company.

From that judgment the City appealed, and the Appellate Court for the First District reversed (86 Ill. App.2d 90), holding that the plaintiff had no right to use the easement until the Company failed to provide service to plaintiff's property. Since the Company alleged that it still maintained this service over its relocated spur track, the appellate court held the pleadings disclosed a genuine issue of material fact rendering the summary judgment erroneous. That court also held that the pleadings and appellate briefs raised a question of fact as to whether the concrete pier actually had been constructed on the easement site. Stating that the ownership and control of the Dan Ryan Expressway, of which the pier was an integral part, had been transferred to the State of Illinois, the appellate court further suggested that there could not be a proper adjudication of the issues in the case unless the State were made a party. For these reasons, the court reversed the summary judgment and remanded the cause "for the presentation of evidence to resolve the disputed facts." 86 Ill. App.2d 90, 96.

Despite the appellate court remand for the presentation of evidence on the factual questions, no further evidence was presented. Instead, plaintiff filed an amended complaint and a supplemental complaint, both of which were stricken. Plaintiff then filed a second amended complaint and an amended supplemental complaint. These new complaints added several corporate and individual plaintiffs and joined the State of Illinois as defendant. Portions of plaintiff's original complaint were realleged, and several other theories of recovery were added, the most prominent alleging conspiratorial misconduct between the City and the Company resulting in serious and continuing injury to plaintiff's business.

The State of Illinois, through the Attorney General, filed its general appearance after having been served with summons. Shortly thereafter, the State filed a motion to withdraw its general appearance and for leave to file a special and limited appearance for the sole purpose of objecting to the jurisdiction of the trial court on the ground that section 26 of article IV of the 1870 Constitution prohibited the inclusion of the State of Illinois as defendant. At about the same time, the Company filed a motion to strike plaintiff's most recent complaints. The trial court, in February, 1971, denied the State's motion to withdraw its general appearances, and granted the Company's motion to strike the second amended complaint and the amended supplemental complaint. In both orders, the trial court indicated there was no just reason for delaying enforcement or appeal. 43 Ill.2d R. 304(a).

The State appealed directly to this court relying on our former Rule 302(a)(2), since the case involved a question arising under the constitution of this State. (43 Ill.2d R. 302(a)(2).) Plaintiff cross-appealed and appealed separately from the order striking its most recent complaints. 43 Ill.2d R. 303(a).

The State argues that the February, 1971, order was a "final order" and thus appealable under Rules 302(a)(2) and 304(a) since the trial court entered an express written finding that there was no just reason for delaying enforcement or appeal. Of course, the inclusion of the special finding in the trial court's order cannot confer appellate jurisdiction if the order is in fact not final. (Martino v. Barra (1967), 37 Ill.2d 588, 594-95; Davis v. Childers (1965), 33 Ill.2d 297, 300-01; 43 Ill.2d R. 304(a), Committee Comments.) The order here appealed from denied the State's motion to withdraw its general appearance and for leave to file a special and limited appearance for the purpose of objecting to the jurisdiction of the trial court. Although this court has not spoken to the issue, two panels of the appellate court have held that denial of a motion to file a special and limited appearance is not a final, appealable order. (Irvin v. Poe (4th Dist. 1974), 18 Ill. App.3d 555; People ex rel. Department of Public Health v. Brown (5th Dist. 1968), 96 Ill. App.2d 355.) The State further argues, however, that its motion should be characterized as equivalent to a motion to quash service of summons, noting that this court has held an order granting a motion to quash service of summons is final and appealable (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569). It urges that the converse should also be true, i.e., an order denying the motion should be final and appealable. Again, although this court has never decided the issue, two panels of the appellate court have held that the denial of a motion to quash service of summons is neither final nor appealable (People ex rel. Department of Public Health v. Brown (5th Dist. 1968), 96 Ill. App.2d 355; Thomas v. Ritholz (1st Dist. 1941), 310 Ill. App. 166.) Furthermore, the great weight of authority in other jurisdictions is to the same effect. (See Annot. (1953), 30 A.L.R.2d 287, 290-96.) The order denying the State's motion to withdraw its general appearance neither terminates the litigation on its merits nor settles the rights of the parties in any respect. It is not, in our opinion, a final order.

Notwithstanding the interlocutory nature of the order, there are elements present in this litigation that lead us to conclude it to be an appropriate occasion for the exercise of our supervisory authority. (Ill. Const. (1970), art. VI, sec. 16; Brokaw Hospital v. Circuit Court (1972), 52 Ill.2d 182.) This case commenced more than 11 years ago, and there has not yet been a hearing on the merits even though this is the second appeal. If the State correctly argues that it cannot be made a defendant here without its consent, the improvident use of taxpayer's ...


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