Lake Shore & Michigan Southern Railway Co. v. Chicago & Western Indiana Railroad

1. Right of way—defence in proceeding for condemnation. In a proceeding in the.county court for condemnation for a right of way for a railroad across the right of way and railroad track of another company, questions as to the sufficiency of a city ordinance in respect to the right of the company seeking the condemnation, and as to the right of such company, under the constitution and the Eminent Domain act, to cross the track of another company, and as to injury to the franchise of the .company whose road is sought to be crossed, and as to the proposed crossing being a continuing nuisance resulting to the last named company from the operation of the new road, are all of a character, if available at all to the party relying upon them, such as may be interposed as a defence at law in the condemnation proceeding. 2. Stay of proceedings—defence at law. On error in this court to review a decree dissolving an injunction and dismissing the bill under which it was sought to restrain a railroad company from further prosecution of proceedings then pending in the county court for condemnation of ground for right of way, on motion that the writ of error be made to operate as a supersedeas and that an order be entered staying the condemnation proceedings until the determination of the cause on error, it was held, that, apart from any question as to the authority of this court to order a stay of the proceedings, it would not exercise such a jurisdiction where the grounds of the motion were of such character as might be interposed as a defence at law in the proceeding sought to be stayed.

Writ of Error to the Superior Court of Cook county. The Chicago and Western Indiana Railroad Company instituted proceedings in the county court of Cook county for the condemnation of a right of way across the right of way and railroad track of the Lake Shore and Michigan Southern Railway Company, and also across the right of way and railway track of the Chicago, Rock Island and Pacific Railroad Company, in the city of Chicago. Pending these proceedings, these two latter companies exhibited their bill in chancery in the Superior Court of Cook county, asking an injunction against the former company, restraining it from further action in the condemnation proceeding in the county court. An interlocutory injunction was allowed, which, upon hearing, was dissolved, and the bill dismissed. Thereupon the complainants sued out this writ of error, and now move the court that the writ of error be made to operate as a supersedeas, and that the defendant in error be ordered to stay all proceedings in its condemnation suit in the county court until the determination of this cause in this court.