# Chicago, Burlington & Quincy Railroad Company v. Chicago/Dissent Brewer

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Mr. Justice BREWER, dissenting.
I dissent from the judgment in this case. I approve that which is said in the first part of the opinion as to the potency of the fourteenth amendment to restrain action by a state through either its legislative, executive, or judicial department, which deprives a party of his property without due compensation, also the ruling that 'due process' is not always satisfied by the mere form of the proceeding, the fact of notice, and a right to be heard. I agree to the proposition that 'a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state, or under its direction, for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment to the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.'
It is disappointing, after reading so strong a declaration of the protecting reach of the fourteenth amendment, and the power and duty of this court in enforcing it as against action by a state by any of its officers and agencies, to find sustained a judgment, depriving a party-even though a railroad corporation-of valuable property without any, or at least only nominal, compensation. It seems as though the denial which is so strenuously made as to the power of the state through either its legislative, executive, or judicial department is subject to one limitation; that is, the verdict of a jury. The abundant promises of the forepart of the opinion vanish into nothing when the conclusion is reached. They amount to a mere brutum fulmen. It is a case frequent in all our experiences in life, where the promise and the performance are sadly at variance, and suggest those many sayings, some serious and some jocular, which are used to picture the grotesque incongruity so often manifested between the beginning and the end, the proclamation and the act.
For what is the result which is sustained and adjudged rightful by this decision? The railroad company, which owns a tract of land within the limits of the city of Chicago, holds it by deed from the original proprietors, having, therefore, the highest and best of all titles, a fee simple, and by virtue thereof a right to its exclusive use, with all the benefits and profits which attend thereon, is deprived of such exclusive use, forced to admit everybody to an equal use and occupation, to give to the public, indeed, all the use and occupation it has of any road or highway, including therein its power to require all owners of steam cars crossing such highways to plank at their own expense crossings, construct gates, employ gatemen, and take all other necessary means to prevent accidents at such crossings, and receives for this only one dollar,-merely nominal compensation. The property thus condemned is the private property of the company. Missouri Pac. Ry. Co. v. Nebraska, 164 U.S. 403-417, 17 Sup. Ct. 130. The individual owners of tracts alongside and similarly situated are, for being deprived the exclusive use (for in neither case is the fee taken) of their property, awarded damages at the rate of about $5,000 for an equal area of ground, and this without being exposed to any further burden than the loss of the use of the property condemned.
It is no answer to say that the company only uses this piece of ground for its tracks and the passage of its trains, and may still use it in the same way. It is not the present use, but the possibilities of use, which determine the value of property. Can the owner of vacant land have it taken from him without compensation simply because at the moment he does not use it? As said by this court in Boom Co. v. Patterson, 98 U.S. 403, 408: 'The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses?' The value of this property to the railroad company, its owner, does not depend alone on the uses to which it is now put, but also on the uses to which the company may rightfully put it; and, as shown by the testimony in this case, that portion of the ground on either side of the tracks is available and valuable for station houses, offices, coal chutes, elevator offices, signal towers, switch stands, etc., the possibility of use for which purposes is taken away when the land is appropriated for a highway. The claim that the leaving of the present use of his property to the owner destroys the right of compensation is a proposition which, to my mind, is simply monstrous. Could another railroad company or an individual condemn and take from this company any use of its tracks, with only nominal compensation, simply because its own use was left to the company? And yet, if the taking of a crossing without compensation can be defended on this ground, why may not the taking of the use of the tracks without compensation also be defended?
Neither, as I submit, can the large matter of damages by liability to the expense of planking between the tracks, establishing gates, hiring gatemen, and resorting to all other necessary means of guarding against accidents at the crossing, be ignored in any just estimate of compensation. It is no sufficient answer to say that wherever a crossing has been rightfully established the public may legally compel the company at its own expense to provide these means of protection. The company is liable to no such burden until the highway is opened. As long as the public had no right of crossing, the company was under no burden. The establishment of the crossing, the taking of the property for a highway, creates the right on the part of the public to cast the burden upon the company, and it seems to me monstrous to say that the public can create the right to cast a large burden of expense upon the company, and yet be under no obligations to compensate therefor. It amounts simply to this: that the city says to the railroad company, 'I will take your property, and use it for a highway, and pay you nothing for it, or for your liability to bear such a burden of expense as I may see fit to cast upon you hereafter in order to protect that crossing against accident; and I can do all this without compensation, because, if I had owned the property in the first place, and simply given you permission to cross my highway, I could compel you to bear such burden.' The right to impose a burden after a public ownership is created is used as a justification for creating the public ownership without compensation. I cannot agree to any such proposition.
This question was presented to the supreme court of Kansas in Kansas Cent. R. Co. v. Jackson Co. Com'rs, 45 Kan. 716, 724, 26 Pac. 394, 397, where a highway was sought to be established across a railroad track without any compensation, and the court denied the claim, saying: 'Whether the duty imposed upon the railroad company of constructing cattle guards, fences, signs, etc., can be or is imposed upon it under the police power of the state, makes no difference in this case. If the highway should not be established across the railroad company's right of way, then it would not be necessary for any of these things to exist; but, if a highway is so established, then the duty under the statutes immediately springs into existence, requiring the railroad to so construct these things. The establishment of the highway is, therefore, the cause of all these additional burdens being imposed upon the railroad company. And must the railroad company bear these burdens and suffer these losses without compensation? Why should it be treated differently from others who have interests in real estate? All others having interests in real estate are entitled to compensation for losses resulting from the location of a public highway interfering with their free and rightful use of such interests. Smith Co. Com'rs v. Labore 37 Kan. 480, 484, et seq., 15 Pac. 577.' See, also, the many cases cited in the opinion. Among them is Grand Rapids v. Grand Rapids & I. R. Co., 58 Mich. 641, 648, 26 N. W. 159, 162, in which it was said by Campbell, C.J.: 'The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against accidents.' Again, in Railway Co. v. Hough, 61 Mich. 507, 508, 28 N. W. 532, 533, the court observed, speaking by the same chief justice: 'If a railroad interferes with an existing highway, it must bear all the expense of crossing and restoring the highway, as far as practicable, to safe condition; and the fencing and cattle guards are necessary for that purpose. But, as pointed out in People v. Lake Shore & M. S. Ry. Co., 52 Mich. 277, 17 N. W. 841, when a new highway is created, then it belongs to those who create it to bear the expense of making the crossing in the condition necessary to meet all the expense and danger which it occasions.'
Indeed, in Illinois, as between two railroads, one seeking to obtain the right of crossing over the tracks of the other, the court, in Chicago & A. R. Co. v. Springfield & N. W. R. Co., 67 Ill. 142, well said: 'Appellants are entitled to such a sum for damages, to be paid by appellee in money, as well enable appellants to construct and keep in repair all such works as may be necessary to keep their track in a safe and secure condition. Nothing short of this can amount to the 'just compensation' provided by law.'
I do not care to enlarge upon this matter. These propositions seem to me so absolutely clear that the mere statement of them ought to carry conviction. And after a declaration by this court that a state may not, through any of its departments, take private property for public use without just compensation, I cannot assent to a judgment which, in effect, permits that to be done.