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01/27/98 WILLIAM MCCLAUGHRY v. VILLAGE ANTIOCH

January 27, 1998

WILLIAM MCCLAUGHRY, FAYE MCCLAUGHRY, CECILE KELLY, BRENDA LYTNER, JEFFREY BROCK, FRANK WEISSMULLER AND JAMES G. DUGGAN, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF ANTIOCH; MARILYN SHINEFLUG, AS THE MAYOR OF THE VILLAGE OF ANTIOCH; METRA; AND WISCONSIN CENTRAL RAILROAD, LTD., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. Nos. 96--CH--994. Honorable Emilio B. Santi, Judge, Presiding.

The Honorable Justice Rathje delivered the opinion of the court. Geiger, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

The plaintiffs, William McClaughry, Faye McClaughry, Cecile Kelly, Brenda Lytner, Jeffrey Brock, Frank Weissmuller, and James G. Duggan, brought suit against the defendants, the Village of Antioch, Marilyn Shineflug, in her capacity as mayor of Antioch (collectively the Village), METRA, and Wisconsin Central, Ltd. (collectively the railroads). Count I of the suit sought a writ of mandamus ordering the Village to enforce Antioch's nuisance ordinance against the railroads. Count II of the suit sought to enjoin the railroads from sounding their train horns on the basis that the noise created thereby constituted a nuisance.

All the defendants filed motions to dismiss. The trial court found that the Illinois Commerce Commission (Commission) had exclusive jurisdiction over the issue of railroad safety and granted the defendants' motions to dismiss. The trial court did not reach the issue of whether the complaint stated a cause of action.

Thereafter, the Village filed a petition for attorney fees pursuant to Supreme Court Rule 137. 155 Ill. 2d R. 137. Following a hearing, the trial court denied the fee petition.

On appeal the plaintiffs raise the following issues: whether the trial court erred in ruling that it lacked jurisdiction to enjoin the railroads' horn sounding as a nuisance; and whether the trial court erred in not issuing a writ of mandamus ordering the Village to enforce its nuisance ordinance against the railroads. The Village filed a separate appeal from the trial court's order denying the request for attorney fees. The two appeals have been consolidated for our review.

Section 18c--7101 of the Illinois Commercial Transportation Law (Commercial Act) provides as follows:

"Jurisdiction over Rail Carriers. The jurisdiction of the Commission under this Sub-chapter shall be exclusive and shall extend to all intrastate and interstate rail carrier operations within this State, except to the extent that its jurisdiction is preempted by valid provisions of the Staggers Rail Act of 1980 or other valid federal statute, regulation, or order." 625 ILCS 5/18c--7101 (West 1994).

Section 18c--7402 of the Commercial Act sets forth the safety requirements for railroad operations and provides in pertinent part as follows:

"Bell and Whistle-Crossings. Every rail carrier shall cause a bell, and a whistle or horn to be placed and kept on each locomotive, and shall cause the same to be rung or sounded by the engineer or fireman, at the distance of a [sic] least 1,320 feet, from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or sounding until the highway is reached; provided that at crossings where the Commission shall by order direct, only after a hearing has been held to determine the public is reasonably and sufficiently protected, the rail carrier may be excused from giving warning provided by this paragraph." 625 ILCS 5/18c--7402(2)(a) (West 1994).

Prior to the commencement of the lawsuit in this case, the Commission held hearings at which the rail carriers presented their positions as to whether they wished to be excused from whistle sounding as required by section 18c--7402(2)(a). Several rail carriers indicated that they would continue to sound their whistles even if excused from doing so by the Commission. The representatives from several municipalities also presented their views on the whistle sounding. The City of Chicago voiced no objections to whistle sounding at Chicago crossings. However, several municipalities such as La Grange, Riverside, Westmont, Elmwood Park, Mount Prospect, and Elmhurst requested that the rail carriers be excused from sounding their whistles within their communities and presented evidence in support of their position. In addition, letters were received from other municipalities stating their positions.

Based upon the record from the hearings, the Commission entered an order which provided in pertinent part as follows:

"(8) Illinois Compiled Statute 625 ILCS 5/18c--7402 authorizes the Commission to excuse registered rail carriers from sounding whistle warnings after hearings; such statute does not give the Commission any authority to prohibit the sounding of such whistle warnings; the Commission has established a standard under which it excuses railroads from sounding whistle warnings; however, if governmental authorities (communities) desire that a registered rail carrier sound whistle warnings at crossings within its jurisdiction, it may contact the affected rail carrier and such carrier can continue to sound whistles even if excused from whistling by this Commission;" (Emphasis added.)

By virtue of the Commission order, the railroads in this case were excused from sounding their whistles/horns at five out of the six crossings located within the Village limits.

The plaintiffs in this case are residents and/or owners of property located in close proximity to Wisconsin Central's right-of-way in Antioch. The allegations of their complaint may be summarized as follows. There are six grade crossings within the municipal limits of Antioch. Approximately 20 trains per day travel through the Village, 10 of which are between 8 p.m. and 6 a.m. Despite the fact that for five out of the six of these crossings the Commission has determined that it is not necessary to sound their horns, Wisconsin Central has directed its locomotives to sound their horns commencing at one-quarter mile in advance of each crossing. The sounds of the horns reach a level of 85 to 95 decibels as measured near the plaintiffs' residences.

According to the plaintiffs, the noise caused by the locomotive horn sounding has caused them a variety of physical disorders, disruption of their social lives and entertainment enjoyment, and loss in property values. Finally, the plaintiffs conclude that the horn-sounding activity constitutes a nuisance under the Village's nuisance ordinance; however, the Village refuses to enforce the ordinance against Wisconsin Central and METRA, whose trains utilize the Wisconsin Central right-of-way. Therefore, the plaintiffs sought enforcement by writ of mandamus of ...


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