¶1dissenting:
¶2The majority opinion acknowledges that the defendant is not a public utility and that its cable television operations benefit the defendant and its customers rather than the general public. The practical effect of the court’s opinion then is to condone the existence of a private right of eminent domain allowing the defendant to take the private property of the plaintiffs for the private use of the defendant and its customers. This court has long held that “private property cannot be condemned for a purely private purpose or for a private use which benefits the public only incidentally.” (Department of Public Works and Buildings v. Farina (1963), 29 Ill.2d 474, 477.) Further, “[a] ny attempt to grant the right to take private property for private use is void.” (People ex rel. Tuohy v. City of Chicago (1946), 394 Ill. 477, 481.) Consequently, I must dissent.
¶3The majority opinion cites Barrows v. City of Sycamore (1894), 150 Ill. 588. That case is not authority for the statement in the opinion that “underground installations … have been regarded as falling within the highway easement,” since in that case no “easement” was involved. The city of Sycamore owned the fee in the street and “having the fee and exclusive control over streets, municipal authorities may appropriate them to any use not incompatible with the object for which they were established.” (Emphasis added.) (Barrows v. City of Sycamore (1894), 150 Ill. 588, 593.) In the case before us it is uncontroverted that the road exists by prescription. The public therefore has only an easement for highway purposes over the land of the plaintiffs. The plaintiffs retain the fee and can exercise every right of ownership not inconsistent with the public easement. Moore v. Gar Creek Drainage District (1914), 266 Ill. 399.
¶4As the majority points out, the cases it cites were decided without reference to section 9-113 of the Illinois Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 9-113). However, these cases were pre-1915, and the Illinois Highway Code did not become effective until 1959. Prior to that time provisions similar to those found in section 9 — 113 were contained in other statutes.
¶5One of the cases cited referred to a statute which was analogous to section 9 — 113 in that it allowed local authorities to consent to a telegraph company’s erection of poles, posts, piers, abutments, wires, etc. on private property. In Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513, 515, this court stated:
“It is not denied that a telegraph company organized under the laws of this State may, under our Eminent Domain act, acquire property upon which it may erect its telegraph line. Indeed, section 2 of the act relating to telegraph companies (Rev. Stat. 1874, p. 1052,) makes provision for such companies to acquire property, as follows: ‘Every such company may enter upon any lands for the purpose of making surveys and examinations with a view to the erection of any telegraph line, and take and damage private property for the erection and maintenance of such lines, and may, subject to the provisions contained in this act, construct lines of telegraph along and upon any railroad, road, highway, street or alley ….’ Section 4 of the same act provides: ‘No such company shall have the right to erect any poles, posts, piers, abutments, wires or other fixtures of their lines along or upon any road, highway or public ground outside the corporate limits of a city, town or village without the consent of the county board of the county in which such road, highway or public ground is situated, nor upon any street, alley or other highway or public ground within any incorporated city, town or village without the consent of the corporate authorities of such city, town or village.'’ ” (Emphasis added.)
¶6Section 2 of the 1874 act quoted above authorized the exercise of eminent domain powers by telegraph companies. Section 4 then proceeded to place a restriction on that authority. Even after a telegraph company exercised its condemnation powers, or obtained the consent of the landowner for the placement of its poles and wires, it still had to obtain the consent of local authorities to place its poles and wires along the public highway.
¶7The power of eminent domain has been granted to telegraph and telephone companies (Ill. Rev. Stat. 1973, ch. 134, pars. 2, 20); to railroad companies (Ill. Rev. Stat. 1973, ch. 114, par. 18); and to public utilities generally (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 63). Since the State has already granted full eminent domain powers to public utilities, any construction of section 9 — 113 which would confer additional condemnation powers would be redundant and unnecessary. Section 9 — 113 is part of the Illinois Highway Code. The section is neither a substitute for nor an alternate to the statutory exercise of eminent domain powers by public utilities. It simply affirms the authority of local highway officials to preserve and safeguard the public’s highway easement.
¶8If, in this case, the highway authorities had felt that location of the underground cable might interfere with, for example, emergency parking facilities, the authorities could have withheld consent until defendant agreed to locate the cable further from the roadway. If a telephone company had condemned land adjoining a highway, the highway authorities could still have withheld consent to the placement of telephone poles until they were satisfied that the poles would not be a hazard to motorists. And if a landowner wished, for example, to lay sanitary sewer pipes on land which he owned in fee, but which was subject to the highway easement, he would have to obtain the consent of highway authorities under section 9 — 113. Even though he owns the land, his use of it is subject to the right of the public to unobstructed use of the highway easement. The effect of section 9 — 113 is to ensure that no one — whether an abutting landowner, a public utility, or a private company acting with permission of the landowner —will interfere with the public’s highway easement.
¶9In summary, section 9 — 113 does not confer upon the persons and entities named a means of acquiring a right to burden land which is subject to a highway easement. It merely provides that, in order to protect the public’s unobstructed use of its highway easement, the named highway officials must consent to the placement of any poles, wires, ditches, etc. within the highway easement. The fact that section 9 — 113 requires that the owners of the property abutting upon the highway be compensated for damages does not grant a right of eminent domain to acquire the right to use the property.
¶10While the majority opinion requires that plaintiffs be compensated for the taking of their property, it fails to provide for the first step in the eminent domain process— an adversary hearing and a judicial determination of the propriety of the taking. If a pretaking hearing had been required in this case, the judge, faced with the attempted taking of private property for private use, would have had to find in favor of the landowner. The result should not be different when the defendants, acting without notice to the plaintiffs and without allowing plaintiffs a hearing, arbitrarily confiscated plaintiffs’ property.
¶11The majority feels that section 9 — 113 “in providing that abutting owners are to be compensated for damages discloses a legislative policy against the issuance of a mandatory injunction in a case such as this.” The mere payment of money damages after the taking cannot compensate for depriving plaintiffs of their right to notice and a pretaking hearing. The action of the defendants was a trespass. It deprived plaintiffs of their property without due process and without compliance with the constitutional and statutory requisites for eminent domain. A “legislative policy” cannot cure a constitutional infirmity in the statute and in the procedure followed by defendants here.
¶12In cases markedly similar to the case at bar, this court has allowed actions of ejectment and injunction against telegraph companies and railroads. It will be noted in the part of the opinion in Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513, quoted above that, in addition to section 4 of the act then in force, which required consent of the local authorities before telegraph lines could be erected upon or along a highway, the act, in section 2, also conferred the right of eminent domain upon telegraph companies. In the case now before us, although the act involved requires similar consent, no power of eminent domain is conferred. However, in Postal Telegraph-Cable Co. v. Eaton, this court stated:
“When appellant, therefore, entered upon and took possession of the land and erected its line without instituting proceedings to condemn, as required by law, it was a trespasser, and no reason appears why appellee might not sue in trespass and recover such damages as he had sustained, or bring ejectment and regain his property in the condition it was in when appellant entered upon it.” (170 Ill. 513, 519.)
¶13Thus, the consent of the highway authorities confers no right upon the company to burden the land of the owner. That right must first be obtained by condemnation or grant.
¶14In Spalding v. Macomb and Western Illinois Ry. Co. (1907), 225 Ill. 585, 590, this court stated:
“[T] he construction of a steam railway in a city street, where the fee belongs to abutting property owners, has been frequently held by this court to create an additional servitude as not one of the ordinary uses. The owner of the abutting property may maintain trespass, or may enjoin said railroad from constructing or operating without first settling with the owner of the fee, even though the municipal authorities have granted, by an ordinance based on a legal frontage petition, permission to construct and operate a railroad on said street.”
¶15This court has held that “an injunction is proper to prevent an unlawful appropriation of land by a public corporation which has made no attempt to acquire such rights by condemnation or other lawful procedure.” (Illinois Cities Water Co. v. City of Mt. Vernon (1957), 11 Ill.2d 547, 556.) Similarly, a mandatory injunction should issue to correct an unlawful appropriation of land by a private corporation. I would reverse.
¶16MR. JUSTICE KLUCZYNSKI joins in this dissent.