*-*º-ºr
| PANsp.
|-|E
449 |
.C 5
CG8
*
Cºv, 2" ºn X 2
w iA’ t” ^_2. ºr .” - - © * ...: - ** --> - f j .
Y-X- 4- “. -º Jé, ºvº..”. R. A-> avčevº…
- # i.
~5-y , 13 ^*}”, 22, /3%-72 -
.xxº~


Transportation
Libraſ)
.." A. **. i
... }., º
*
l \ *
WHO OWNS THE STREETS 2
To the Hººtor:
The suggested “sale of franchises” to the highest bidder
necessarily implies two premises: 1st. The power of sale.
2d. The existence of the article proposed to be sold.
As to the first premise, the power of the city council in re-
gard to the streets is that of a trustee. Its power is to regu-
late the use of streets which can not include the sale of that
which it does not own.
As to the second premise, our Supreme Court, since the
constitution of 1870, has repeatedly held that such ordinances
of the city were not franchises but mere licenses.
The proposition reminds me of the man who said he knew
his dog did not bite another for three reasons: first, his dog
was locked up; second, his dog didn't have any teeth; third
he did not have any dog. -
The power to issue licenses is the exercise of the police
power to regulate, not the power of an owner to sell.
Police regulations, like taxation, must be uniform as to the
class on which it operates, and such regulations must be by
general laws and not individual privileges.
This book contains a mass of authorities on the rights of
persons and corporations in the public streets, which may be
desirable for reference at any time. If it will assist the editor
in making the research for such authorities as public discussion
of the question may require, it will serve its purpose.
C. L. Bonn Ey,
V. P. Chicago General Ry. Co.
UNIVERSITY OF MICHIGAN LIBRARIES
I N D EX.
PAGE.
Chicago General Ry. Co. Injunction to prevent de- Brief in Appellate
V. struction of cars at 22d Court. . . . . . tº e º 'º /
Chicago City Ry. Co. street bridge. -
Same Same Record. . . . . . . . . . . .'O?:
Chicago General Ry. Co. Claim for use and occupa- Brief in Appellate
W. tion of railway tracks. Court. . . . . . . . . . 2...
Spry Lumber Co.
Same Same Record. . . . . . . . . . . 2/?
Chicago General Ry. Co. Claim for destruction of Declaration in Cir- :
W. car at 22d street bridge. cuit Court...... 22 º'
Chicago City Ry. Co. - -
Vanderpoel et al. Injunction to prevent con- Answer in Circuit *
V. struction of road. Court ... . . . . . . . 23/.
West & South Towns Ry.
Tibbetts Same Brief in Appellate
W. Court ... . . . . . . . 22+3 .
West & South Towns Ry.
Stewart Same Stewart's brief
V, in Supreme -
Chicago General Ry. Co. Court . . . . . . . . . . 2 7 3.
Same Opinion of Judge
Waterman...... 22 ſ; ,
Same Same Company's brf.... 2 3%
Kirchman et al. Same Brief for Kirchman
V. in Supreme -
West & South Towns Ry. 4. Court. . . . . . . . . . 2??
West & South Towns Ry. Claim for Conspiracy. Declaration in Cir- * ,
V. cuit Court...... S 7 o'.
West Chicago St. Ry.
No seat, no fare, in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . • ?o
Annual report for 1894. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-93.
*..
-- .." * * , 2,~ * * x • , , ; - :
r- * *
T No 3O4: Gen. No." 602 *
: - º
erm No. 5U4: . Gen. No. 6026.
* —l -- - - –4 f * + * .* * {
I w r” --- a. *— * . . . . " Tº . A $- 's
—r *...* ºy r ºx---- —r- ++,
º
in the
APPELLATE COURT OF ILLINOIS,
FIRST District.
October TERM, A. D. 1895.
Chicago. General Railway Company and
The west and south Towns street t
i Railway Company, wº. Appeal from
* * Appellants, * circuit Court, •4
Y - . { Cook County.
Chicago City Railway Company, , …
* , ~, Y. Appellee.
w8.
BRIEF FOR APPELLANTs.
A
JOHN S. MILLER and \
MERRITT STARR,
For APPELLANTs,
THE GUNTHORP-WARREN PRINTING COMPANY, sa DEARBORN ST., CHICAGO.
t IN THE i
Appellate Court of Illinois
-- FIRST DISTRICT,
OCTOBER TERM, A. D. 1895.
Chicago General Railway Company and
The West and South Towns Street
Railway Company, Appeal from
Appellants, Circuit Court,
Q)S.
. Cook County.
Chicago City Railway Company,
Appellee.
E FIE F FOR APPELLANTS.
sºmsºmºsºmsºmº
This is an appeal from the decree of the Circuit Court
dismissing the bill of complaint of appellants for want of
equity. The bill alleges the organization of the West &
South Towns Company (hereafter called the Towns Com-
pany), August 7, 1891, under the general incorporation
act (R. S., Chap. 32), and the Horse and Dummy Act,
(R. S., Chap. 66); that its object was the construction
and operation of a street railway on all streets and alleys
within the present or future limits of the City of Chicago
on which it might receive authority from the city council,
and particularly for the construction and operation of a
2
street railway on 22d street in said city from Lawndale
on the west to Lake Michigan on the east. That the
Chicago General Railway Company (hereafter called the
General Company), was incorporated October 21, 1893,
under the general railway laws of Illinois to construct,
acquire, purchase, lease, maintain and operate railways
or portions thereof along the lines described in its articles
of incorporation, one of which was upon 22d street be-
tween Lawndale and Lake Michigan. The bill alleges
the passage by the city council of the City of Chicago, on
February 8, 1892, of an ordinance granting to the Towns
Company, its successors and assigns, permission to con-
struct, maintain and operate a street railway on 22d
street from the east line of Grove street to the west line
of Johnson street and across all connecting, abutting and
intersecting streets, avenues, courts, alleys, places and
highways, and also in and along certain other streets not
not now in question.
That said ordinance further provided that said company
shall have the right to connect its tracks with those of
the Chicago City Railway Company, (the defendant here-
in, and hereafter called the City Company for conven-
ience) on 22d street at or near Grove street, but should
have no right to construct any tracks east of the Chicago
river on said street without the consent in writing of the
City Company.
It also provided that said company shall have a right
to operate its cars over tracks not owned by it upon such
terms and conditions by lease or contract, as may be agreed
upon between the companies owning said tracks, or other-
wise not in conflict with any of the conditions of said
ordinance, or the general ordinances of said city.
3
f
\
s
i
The bill alleges that the construction and operation of
the railway of said Towns Company was much delayed by
certain annoying and vexatious orders and writs of in-
junction, but that said injunctions were finally dissolved
and about June 24, 1893, said line of railway on 22d
street was put in actual operation ; that since about July
22, 1894, said line of railway and its branches have been
in full and continuous action on 22d street and other
streets from the Western terminals to Jefferson street near
the south branch of the Chicago River, to the great
advantage and convenience of more than two hundred
thousand of the people of the city residing and engaged in
business along 22d street and in its vicinity.
The bill alleges that on April 3, 1893, the Chicago
General Company lawfully acquired by lease from the
other company, the Towns Company, all its railway in-
cluding the line on 22d street to be operated by the
General Company as fully and completely as might have
been done by the Towns Company ; that thereupon the
General Company entered into possession of the same and
ever since has been, and still is engaged in the actual
operation of the same, in conformity with the ordinances
of the City of Chicago and in full discharge of the duties
and obligations imposed upon said companies.
The bill alleges that the defendant company, the Chicago
City Railway Company, is a corporation organized under
an act entitled “An Act to Promote the Construction. of
Horse Railways in the City of Chicago,” approved Feb-
ruary 14, 1859. That on February 25, 1887, the City
Council passed an ordinance granting the City Company
authority to construct, maintain and operate a double track
street railway in said 22d street from the center of State
4.
street to the South branch of the Chicago river. Section 4 of
that ordinance requires the City Company to fill, grade,
pave and keep in repair sixteen feet in the center of said
street. (Abst., 29.) That said City Company there-
upon constructed a double-track street railway along 22d
street, in the center of said street, to the South branch of
the Chicago river, and put the same in operation by run-
ning a single car to and fro along said street between said
limits ; but that said City Company has not in any wise
fully or adequately performed or discharged its duty to
furnish proper transportation to passengers who desire to
travel along said 22d street between said limits; but has
only occupied said street and operated said railway there-
on so far as became necessary for the purpose of holding
possession of the same.
Complainants allege that there are great numbers of
inhabitants of that part of the City of Chicago through
which the lines of railway owned and operated by com-
plainants as aforesaid, are built, and which is supplied
with transportation facilities by complainants, who de-
sired, and still desire, to be carried along said 22d street
line of railway, not only to said Jefferson street and the
South branch of the river, but into the South division of
the city lying east of said south branch, and to said Grove
street and to said State street, and eastwardly thereof;
and that complainants, in pursuance of the authority
granted by the ordinance in their behalf, and to discharge
their duty as carriers through the territory through
which they had the right to operate as aforesaid, proceeded
to make such arrangements as would secure to the passen-
gers upon their said line the transportation eastward above
described. That the bridge over the said South branch
of the Chicago river and the approaches thereto, and the
5
iron railway rails laid on the east approach of said bridge,
were then in such condition that they required recon-
struction, and would not support or bear the service re-
quired by the operation of the cars over the same, as
proposed ; that it was necessary to reconstruct and repair
the same, which was accordingly done, as hereinafter
stated.
That complainants, about July 1, 1894, opened nego-
tiations with the City Company for the purpose of mak-
ing arrangements for the operation of complainants’ cars
to Canal street, and for a just division between said City
Company and complainants of the cost of such reconstruc-
tion and repair, as such operation to Canal street might
require ; that said Canal street connects with 22d street,
about fifty feet east of Grove street, the terminal of
complainants’ line ; that the City Company entered into
negotiations therefor, as desired by complainants, and it
was thereby clearly understood and agreed that the tracks
of the complainants should be connected with the tracks
of the said City Company at the point, near said Grove
street, where the east approach of said bridge connects
with said bridge; that the expense of reconstructing said
tracks in making said connections east of said bridge
should be borne by the City Company. In accordance
with said understanding and agreement, complainants
caused the necessary material to be furnished and the nec-
essary work to be done to reconstruct said east approach
to said bridge for the relaying of the tracks and the mak-
ing of such connection with complainants’ tracks.
That afterwards, about October 9, 1894, negotiations
for such reconstruction and repairs had so far progressed
that the City of Chicago, having caused its engineer to
examine and report thereon, required complainants, or
one of them, to deposit with the said city on account of
said reconstruction and repairs as aforesaid, $2,000, which
was done and said money deposited by the Towns Company;
that thereupon the substructure of said bridge and both
of the approaches thereto were reconstructed and repaired
by the City of Chicago at the expense of the Towns Com-
pany, and the rails for the tracks for use by complain-
ants were laid on the west approach of said bridge and
upon and across said bridge by complainants, and the
same completed in good order to the satisfaction of the
city authorities; that in the course of such reconstruction
and in accordance with the arrangements made between
the complainants and the City Company for that purpose,
the rails for the railway tracks were laid down from said
Grove street to the south branch of the river by or under
the direction of the said City Company, whereby the lines of
the said City Company were connected with the east end
of the bridge aforesaid: that the planking of said east ap-
proach between said rails and from said rails to the curb-
ing on each side of the street, and the repairing and
strengthening of the substructure of the bridge were paid
for by the complainant, the Towns Company ; that the
City of Chicago thereupon rendered a bill to complainants,
the Towns Company, showing-the total cost of the work
done in reconstructing said bridge and approaches to have
been $2,990, from which was deducted the total public
benefit, amounting to $500, together with the $2,000 de-
posited by the complainant, the Towns Company, leaving
a balance due the City of Chicago of $490, which still
stands charged against the complainant, the Towns Com-
pany ; that the City Company had full notice and knowl-
edge of all the plans and purposes of complainants in re-
spect of all the matters aforesaid, and entered into the
7
same, and co-operated with complainants with respect
thereto without any substantial objection; that the City
Company consented to and became a party to such recon-
struction and repair : that complainants, relying upon
such consent and participation, and upon the clearly im-
plied agreement that complainants should thereafter have
a practical use and benefit thereof for the operation of
their railroad across, over and along the rails so laid in
said street over said east approach, expended large sums
of money in and about such reconstruction and repairs,
and for divers other matters connected therewith and in-
cidental thereto. 4
That the city company, by its consent to and its agguies-
cence and participation in said construction and repair, be-
came barred and precluded from any subsequent opposition
thereto or interference with the rights of complainants
under the same, but became and is estopped to question
the right of complainants to operate their cars along said
street in accordance with the authority granted by said
ordinance to said complainant.
The bill alleges that the natural result and effect of
the extension of complainants’ line to said Grove street
would be to increase the number of passengers seeking
passage on the City Railway Company’s line, and would
afford ample compensation to the City Railway Connpany
for the use by complainant of the rails laid by the City
Company between Grove street and the said bridge, but
complainants do not admit any right of compensation in
the City Company for any such use, inasmuch as the City
Company has not and cannot have, under the constitution
and laws of this state, and the ordinance of the City of
Chicago, any exclusive right to said street, or any part
thereof, but the same is and must be, at all times, free to
8
the public, subject to such regulations as the public au-
thorities may from time to time prescribe. That no ex-
clusive right in any public street can be obtained for any
railway company ; that such companies must conduct their
business in such a manner as not to seriously interfere with
or exclude the general public therefrom ; that the general
assembly has delegated to the City of Chicago the power
to regulate the use of streets in said city, and to regulate
the traffic thereon and the laying of tracks therein ; that
such ordinances in favor of complainants are such lawful
regulations of the matters aforesaid ; and that complainants
were thereby duly authorized to connect their tracks with
those of the City Company, and to operate their cars over
said tracks laid down upon said street, as aforesaid, be-
tween said limits, without unnecessary interference with
said company, subject to limitation that no more than five
cents shall be charged for one continuous ride for any
distance within the city limits.
The bill further alleges that about April 4, 1895, com-
plainants, having first given notice of their intention so to
do, undertook to run one of their cars from said Jefferson
street to said Grove street along their tracks and across
said bridge and approaches thereto, reconstructed as
aforesaid, at the expense of complainants, and the defend-
ants then and there had notice and knowledge that such
would be done. That the west approach to said 22d
street bridge begins at Jefferson street and extends about
300 feet easterly to said bridge; that said bridge extends,
therefrom about 200 feet further, and said easterly
approach to said bridge extends from said bridge easterly
to Grove street, a further distance of 300 feet, making a
total of about 800 feet ; that the east line of Grove street
(the terminal of complainant’s line under said original
9
ordinance), is about 3,400 feet west of State street, and
complainants have in operation for the transportation of
passengers to the said eastern terminus of their line on
22d street, about sixteen miles of railway track.
The bill alleges that on April 4, 1895, complainants
took their car, with many guests and persons interested in
said line thereon, and a number of passengers; that said
car proceeded under the direction of complainants' super-
intendent, easterly from Jefferson street along said 22d
street upon the rails laid by complainants, as aforesaid,
across the western approach to said bridge, and across
said bridge; that when said car came upon said bridge Chi-
cago City Company had organized and had a force of about
300 men east of said bridge along said 22d street for the
purpose of preventing complainants from moving said car
from said bridge to Grove street; and that said City Com-
pany obstructed said 22d street by placing upon the same
and across the tracks at Grove street a car without any
means of moving the same, and two wagons loaded each
With about two tons of iron ; and to render the removal of
said wagons impracticable, had removed one wheel from
each of the wagons and taken away therefrom the horses:
and had also placed upon said street there wrecking wagons
with crews of men with axes, crowbars, hoisting jacks,
sledge-hammers, cables, and other instruments; that
while complainant's said car was still upon the bridge
defendant’s superintendent, Bowen, commanded said car to
stop ; and when said car was started forward and while it
was still more than 100 feet west of Grove street, and
clearly within the limits within which complainants had
been expressly authorized to operate their cars, the
Chicago City Company, by their superintendent and em-
ployes, with force and arms, attacked the car and per-
1()
sons in charge thereof, and overthrew and broke up and
destroyed the car. And said City Company, by its said
superintendent, while destroying said car, threatened in
like manner to destroy and break up any other car
which complainants might attempt to operate east of said
bridge.
The bill alleges that complainants are operating cars upon
their lines of railway at said bridge at intervals of about
eight minutes, and many thousands of persons are transport-
ed along said lines of railway, many of whom desire to
be transported over said bridge and along said 22d street.
The bill sets up the facts showing that said obstruction
of said street and the prevention of Said complainant's
operating its line of railway over the same and the de-
struction of its cars, as threatened and intended by the
City Company, would inflict an irreparable wrong upon
complainants. The bill also sets up that if complainants
should continue the business for which they have been in-
corporated, and should run their cars to Grove street, as
they are authorized to do, the City Company would
carry into effect its threats and destroy any and all
other cars of complainants which would run upon said
eastern approach across said bridge to Grove street, and
all other cars of complainants would be destroyed, which
would give rise to a great multiplicity of suits in which
complainants could obtain no substantial or adequate re-
dress; and that the operation of complainant’s railway,
both as to the short line of track east of the bridge and
the sixteen miles west of the bridge would be paralyzed
by such destruction, and the franchises, licenses and priv-
iliges of complainants would be put in great peril, and
complainants irreparably injured and damaged.
The bill alleges that the defendant has constructed
11
about 380 miles of track, and employs several thousand
persons, and has the physical power and means in its
hands, if permitted to use the same, of preventing by
force the operašion of any other line of railway in the
Streets.
*
That complainants have the right under the ordinances
to use electric power to said Grove street, and have ob-
taind a permit from the city to erect poles and wires in
said 22d street, between Jefferson street and Grove street;
but unless prevented by injunction, the City Company
would prevent the erection thereof when attempted by
complainants, and would with force and arms break up
and destroy the same as in the aforesaid instance.
The bill prays that it may be decreed that complain-
ants have a full and perfect right to operate its said cars
along said 22d street, from Jefferson street to Grove
street, without interference, prevention, hindrance or ob-
struction by defendant, its officers or employes or con-
federates, and for a temporary injunction, and that upon
the hearing the injunction may be made perpetual, and
for such other and further relief as by good conscience
and equity they are entitled ; the complainants submitting
on their part to do what is equity in the premises. (Abst.,
1–16; Rec., 3–12.)
The answer of the defendant, the City Company, ad-
mits the organization of complainants; and that the com-
plaint, the General Company, on April 3, 1894, acquired
by lease from said Towns Company, all of said railway
of said Towns Company, and entered into possession and
operation of the same, as alleged in said bill, and has ever
since been and still is engaged in the operation of the
same ; that since about July 22, 1894, the lines of said
railway in 22d street west of said bridge and its lines
12
have been operated by the General Company; also ad-
mits its own incorporation, and the passage of the ordi-
hance of February 25, 1887, authorizing defendant to
lay down and operate its railway in 22d street, from State
street to the south branch of the Chicago river; and
that it runs a double track street "railway in 22d
street, from state street to the bridge, as al-
leged in the bill ; but denies that it has not fully
and adequately performed its duty in operating said rail-
way, or that it has only occupied the street and operated
its railway thereon so far as is necessary to hold posses.
sion of same, and alleges that it has maintained as full
and adequate service upon said line as the proper accom-
modation of passengers in the use of the same justified
or required. Denies any understanding or agreement
between the parties that the tracks of complainants should
be connected with the tracks of defendant at any point
near Grove street where the east approach of the bridge
connected with the bridge, or at any other point ; or that
the expense of reconstructing the tracks on the east ap-
proach should be borne by the defendant, or that com-
plainants have in accordance with any understanding or
agreement, caused materials to be furnished and work
done to reconstruct said east approach for the relayihg of
tracks and making the connection. Denies any under-
standing or agreement with complainants for connection
of tracks or reconstruction of any kind whatsoever, or
that any work was done in pursuance of an agreement be:
tween them. Denies any notice or knowledge of the
plans or purposes of complainants in respect to the im-
provement of the tracks in 22d street east of the bridge,
or that defendant ever co-operated with complainants with
respect thereto, or that there was any agreement, ex-
13
pressed or implied, that complainants should have the
right to operate their cars along the tracks in any part of
22d street east of the bridge ; or that defendant is
estopped, as alleged in the bill, or that the effect of the
extension and operation of complainants’ line east of the
bridge to Grove street would be to increase the number
of passengers on defendant's line to such an extent # S
will afford compensation to the defendant for the use by
complainants of its tracks on the east approach. Denies
that complainants have any right under the constitution;
as alleged in the bill, or that the complainants are
authorized by the ordinances to connect said tracks with-
out the consent in writing of the defendant; denies that
it has given any consent. * : . . . .
' The answer admits that defendant has refused to per-
hit complainant to run any cars over the tracks in 22d
street east of the bridge; and that it has by force pre-
wented such use of its tracks by complainants as it law-
fully might do. And avers that it has the lawful right to
retain and -keep possession of its said tracks and prevent
the unlawful use thereof by complainant.
" Avers that since the making of such lease by the Towns
Cohpany, April 3, 1894, it has not been engaged in the
operation of any railway or run any cars, and is nºt in
possession or entitled to the possession of any tracks, and
has no connection with or necessity for using any tračks
nor any joint ground for uniting the tracks owned by it
with tracks of defendant. Denies that any right or priv-
ilege granted by section 13 of the ordinance of February S,
1892, has been transferred to the other company, the Gen-
eral Company. Denies the validity of the lease from the
Towns Company to the General Company, for the reason
that any right attempted to be conferred by said ordi-
, 14
hances were not capable of transfer ; and denies that the
General Company has acquired any right whatsoever un-
der section 13 of this ordinance of February 8, 1892.
In answer to the averments of the bill of agreement be-
tween the complainants and defendant, defendant sets up
the statute of frauds, that the defendant has never made
any promise or given any memorandum thereof in writing
and claims the benefits of the statute. And denies that
complainants, or either of them, are entitled to the relief
prayed.
15
STATEMENT OF FACTS.
The material provisions of the ordinances under which
the complainants have the rights claimed herein have been
heretofore substantially stated. That ordinance (passed
February 8, 1892), granted permission and authority to
the West and South Towns Company, its successors and
assigns, to lay down, construct, operate and maintain a
single or double track street railway, with convenient
turnouts, etc., upon that portion of 22d street lying be-
tween the east line of Grove street and the west line of
Johnson street, and upon other streets. This includes
the portion of 22d street (between the bridge over the
south branch of the Chicago river and Grove street)
which is in controversy herein. So that by section 1 of
this ordinance the right was expressly granted to the
Towns Company, its successors and assigns, to op-
erate its railroad over the portion of 22d street (from the
bridge to Grove street) here in question. But on that
portion of 22d street the City Company already had two
tracks. In order to reach Grove street appellants would
have then either to construct more tracks, where already
two tracks existed in the street, or else use the existing
tracks of the City Company. Section 13 of said ordi-
nance also provides as follows:
“SEC. 13. Said company shall have the right to con-
nect its tracks with those of the Chicago City Railway
Company on 22d street, at or near Grove street, but
shall have no right to construct any tracks east of the
Chicago river on said street without the consent in writing
of said Chicago City Railway Company. Said company
shall also have the right to operate its cars over tracks
16
ilot owned by it upon such terms and conditions, by lease
or contract, as may be agreed upon between the companies
owning such respective tracks, or otherwise, not in con-
flict with any of the conditions of this ordinance or the
general ordinances of the city, ; and provided further, that
the rate of fare to be charged upon the lines herein au-
thorized, or over which said company may so operate,
shall not exceed five cents for one continuous ride for any
distance within the present or future city limits.”
Grove street intersects 22d street about 300 feet east
of the bridge across the south branch of the Chicago
river; Johnson street intersects 22d street nearly a mile
west of Grove street; Jefferson street intersects 22d
street about 300 feet west of said bridge and the bridge
is about 200 feet in length. The west approach to the
bridge extends from Jefferson street to the bridge, and
the east approach extends from the bridge to Grove street.
The approaches to the bridge rise from the grade of the
streets where they meet the bridge, and are constructed
upon and supported by piling and timbers and planking
so as to carry the driveway up on an incline from the
surface of the street at Jefferson street on the west, and
Grove street on the east, to the level of the bridge, about
twelve feet above. The defendant company, under its
ordinance of 1887, constructed its tracks from State street
to the east side of the bridge; but those tracks upon the
approach, extending from Grove street to the bridge were,
at the times in question herein, totally unused by de-
fendant. For several years prior to July, 1894, the only
use made by defendant of 22d street, east of the bridge
and west of State street, had been that defendant had
caused a single car to be drawn to and fro from State street
to Grove street, making one trip each half hour, but not
using the tracks on the approach between Grove street
and the bridge. (Abst., 38, 54, 55.)
17
The evidence upon the question of an understanding or
agreement between the companies with respect to
any connection and use by complainant of defendant’s
tracks between the bridge and Grove street is somewhat
conflicting; but certain facts with respect thereto are es-
tablished by evidence which is not controverted. We re-
fer to some of these facts :
The facts as to the wanton destruction by defendant’s
army of complainant’s car are not disputed. And de-
fendant does not deny that it will repeat these acts of
violence, if complainants make another attempt to bring a
car east of the bridge, but asserts its right so to use
force and violence. (Abst., 32-33.) *
In the summer of 1894, the approaches to the bridge
were not in good repair or safe and adequate to support
the street railway cars thereon, and the reconstruction
thereof was determined upon by the authorities of the City
of Chicago. July 31, 1894, the vice-president of the
complainant, the General Company, wrote to the general
counsel of the defendant company, with respect to this,
that they were expecting plans from the bridge depart-
ment of the city daily, and he believed the work of track-
ing the bridge should be completed in something like
thirty days, and asked that the defendant company order
a cross-over (that is, a track connecting one of the two
tracks in the street with the other track), constructed just
west of the Santa Fe tracks, and have the rails from the
bridge to the Santa Fe relaid and bonded; and that the
complainant would then have the necessary wires put up
and operate to Canal street. (Abst., 43.)
The point here referred to was between said bridge and
Grove street. October 2, 1894, the city engineer of the
City of Chicago, wrote complainant, giving a statement
f 8
of what was necessary to be done to strengthen and recon-
struct said bridge and approaches thereto, and stating
that complainants' share of the work would amount to
about $2,000, and requested payment therefor. (Abst.,
44–46.) Complainants accordingly deposited $2,000 with
the City of Chicago for this purpose; and thereupon, the
sub-structure of said bridge and both approaches,
were repaired and reconstructed by the city with
this money, and complainant laid its tracks upon the
west approach and upon and across said bridge to the east
side of the bridge. Those tracks so laid by complainant
did not conform to or meet with the tracks of defendant
(which had been previously laid upon the eastern ap-
proach to the bridge), at the east end of the bridge; but
there was a jog or deflection of about five inches, so that
cars coming across the bridge from the west upon the
tracks laid by the complainants would not pass off the
bridge upon the tracks which had been previously laid
upon the approach by defendant. (See Exhibit B, pp.
64, 65 ; Abst., 42, 61, 62.) The defendant, the City
Company, changed its tracks upon the east approach so
as to remove this jog or deflection, and make their tracks
connect with the complainants’ tracks upon the bridge;
and upon their south track (the one over which cars
would come from complainants’ tracks upon the bridge
on to defendant’s tracks), the defendant placed what is
known as a bridge shoe upon the track, so that cars com-
ing from the bridge easterly would be made to run upon
the tracks of defendant upon the east approach. (See
Exhibit B, Abst., 64, 65; Abst., 54, 63, 64–68.) The
stringers or wooden beams, upon which said rails and
bridge shoes on the east approach were so laid down by
defendant to conform with the rails of complainant on
19
the bridge, were put down by the employes of the City
of Chicago, at the expense of the complainants, and in
accordance with the plat furnished for that purpose by
the defendant, the City Company. (Abst., 68.)
The letter of Mr. Bonney to Mr. Grinnell of
July 31, 1894, in which, aunong other things, he
said that complainants will have the necessary wires
put up and operate to Canal street, clearly shows that
at that time negotiations were pending between
the complainants and defendant for the use by complain-
ants of the defendant’s track in question on 22d street
between the bridge and Grove street. (Abst., 43, 44.)
And this is more fully proven by the testimony of Mr.
Bonney and other witnesses.
The map “Exhibit A ’’ (Abst., 64, 65) shows that
Canal street and Grove street intersect 22d street at a
little distance apart and intersect each other close by, and
they are used indiscriminately as referring to the same
locality.
The evidence of Mr. Grinnell shows that negotiations
had been pending as early as 1892. Mr. Bonney testi-
fies to an agreement between the companies. And the
action of the defendant company in reconstructing its
track upon the east approach to the bridge so as to con-
form to the complainants’ track upon the bridge, and the
putting in of bridge shoes, as was done, all of which was
done upon reconstructed work upon said approaches by
the city at the expense of the complainants, is only con-
sistent with the fact that the defendant understood, and
gave the complainants and the city to understand, that
the complainants might and should operate their cars
over said tracks of defendant upon the east approach.
There was no dissent by defendant to the letter by Mr.
Bonney of July 31, 1894. (Abst., 43.)
20
Mr. Bonney says that shortly after writing this letter
he met Mr. Grinnell, who invited him to call and discuss
the proposition suggested by the letter ; that he repeatedly
called upon Mr. Grinnell and held several consultations
with him during the months of August and September,
1894, and in the first of the conversations, and at Mr.
Grinnell’s request, affiant called Mr. Grinnell’s attention
to section 13 of the ordinance of February 8, 1892, and
requested Mr. Grinnell to consider and fix the point of
connection of the tracks of the Towns Company with the
tracks east of the river; and that at an ensuing conversa-
tion between Mr. Grinnell and affiant, Grinnell stated
that upon consideration, the City Company preferred to
have the point of connection at the bridge, and that if
the complainants would see to the reconstruction of the
approach the City Company would lay their tracks
thereon. That it was understood and agreed with Mr.
Grinnell, representing defendant, and affiant, representing
complainants, that the track of the complainants should
be connected with the track of the defendant at a point
near Grove street, viz: at a point where the east
approach of the bridge connects with the bridge. (Abst.,
39–42.)
Mr. Grinnell, in his evidence, admits that Mr. Bonney
called on him, representing the West and South Towns
Company, and desired to make some “running arrange-
“ment * with the City Company ; and that Mr. Bonney
communicated with the directors of the defendant com-
pany in 1892, but without response; and that, at differ-
ent times from 1892 until November 16, 1894, he had
several interviews with Mr. Bonney (Abst., 16), and he
admits that he did say to Mr. Bonney, “that as good con-
nection for the transfer of passengers between the com-
21
plainant company and the City Company was at the
bridge, as elsewhere.” (Abst., 71.) Whatever may have
been the authority or want of authority of Mr. Grinnell.
alone to contract on behalf of his company, we submit
that it is clear, from the evidence, that negotiations with
and the information given to Mr. Grinnell, went to the
authorities of the defendant company : that it is clear
that the defendant company (whose duty it was, under
its ordinance of 1887, to contribute to the expense of the
reconstruction of the east approach), also knew that the
City of Chicago carried out that reconstruction without
expense to that company, and the evidence fairly shows
that the defendant company must have known this was
done at the expense of complainant, as outlined in Mr.
Bonney’s letter of July 31, 1894. (Abst., 43, 44.) In
that work of reconstruction, the stringers or wooden
beams (upon which afterwards the defendant company
laid its rails and bridge shoes upon the east approach),
were put in by the employes of the City of Chicago, under
the direction of the engineer of the defendant, the Chi-
cago City Railway Company, and in accordance with a
plat furnished for that purpose to the city by that com-
pany. (Abst., 68.) The defendant knew that while it
was liable to contribute to the expense of such recon-
struction, this reconstruction was done without any ex-
pense to it.
Mr. Bonney testifies that Mr. Grinnell stated to him
that if complainants’ company would see to the recon-
struction of the approach, the City Company would lay
its tracks thereon. This is measurably corroborated by
the statement of Mr. Bonney's letter to Mr. Grinnell of
July 31, 1894 (which was written before such interview),
that “we are expecting plans from the bridge department
%
22
of the city daily,” and requesting that the defendant com-
pany have the rails from the bridge to the Santa Fe tracks
relaid and bonded, and the complainants would then put
up the necessary wires and operate to Canal street; and
that if defendant made a temporary contract for a short
time with complainants, he thought defendant should pay
all the expenses of reconstructing the tracks and cross-
overs, or if they would make a contract for a long time
the complainants would be willing to reconstruct the road
and cross-overs. (Abst., 43, 44.) Two or three months
after that the city engineer presented to complainants a
statement of the expense of the repairs and reconstruc-
tion of said approaches and bridge then in process, and
requested the complainants to pay $2,000 ; complainants
deposited that amount ; and the reconstruction of the ap-
proaches to the bridge and the repairs to the bridge were
made. During the time of that reconstruction, the de-
fendant furnished the plans to the employes of the city
for the stringers and supports upon the east approach,
and directed where the stringers should be laid ; and
they were laid in accordance with those plans of the de-
fendant. The expense of the reconstruction of such
east approach which was borne by the com-
plainant, was about $1,041. (Abst., 64.) There-
upon the defendant company having taken up its
tracks upon said east approach, relaid them upon the
stringers so laid according to its design and in such man-
ner as to connect with the tracks at the bridge of the
complainants, as above stated, and at the expense of about
$600, and not exceeding $625. (Abst., 64.)
We have, in the above statement, attempted to avoid
facts which are controverted by the evidence. But the
preponderance of the evidence is, that appellants’ engi-
|
neer informed appellee’s roadmaster that appellants were
reconstructing the east approach, between the bridge and
Grove street, and at his instance, and not at the instance
of the city, the appellee in accordance therewith adjusted
its tracks on the approach. (Abst. , 60-64, 83, 82, 75–
78.)
The ordinance of 1887, under which the defendant com-
pany was given the right to maintain and operate its rail-
way in 22d street from State street to the bridge, re-
quired it to keep the middle sixteen feet of the street in
good repair and condition. The evidence of Mr. Grinnell
confuses negotiations and interviews about this connection
of the tracks at the east side of the bridge, and the use
by complainants of the defendant’s track to Grove or
Canal street with other matters, not here relevant. The
letter of Mr. Bonney of July 31, 1894, which certainly
met with no dissent from defendant, corroborates Mr.
Bonney that the negotiations about the matter here in
question (the connection and use of tracks on 22d street
between Grove street and the bridge) was distinct and
more definite and conclusive than Grinnell’s evidence states.
Whatever may have been Mr. Grinnell's personal power or
knowledge of all the facts, it cannot be well said from
the evidence that the defendant company did not know
and intend (1) that the complainants should, for and in-
stead of defendant, sustain the cost and expense of the
reconstruction of the east approach to the bridge ; and
(2) that the defendant would and did change the location
of and relay its tracks upon said approach so as to con-
form to and connect with the tracks of complainants upon
the bridge; and (3) that all of this was done in order
that the complainant’s night, as they proposed to do,
operate their cars over these tracks upon the east ap-
24
proach to Canal or Grove street. By these acts on the
part of defendant, inviting also these acts and expendi-
tures on the part of complainants, all of which was plainly
for this purpose for the use by complainants of these
tracks, the defendant cannot now say that the complain-
ants shall not have the right to so use and operate those
tracks; but the defendant is estopped by these plain facts
from so asserting.
This conduct of defendant is very strong corroboration
of the testimony for the complainants that a distinct
understanding was made between the complainants and
the defendant, both that the tracks of the parties should
be connected at the bridge, and that the complainants
should use the tracks to Grove street so as to connect
with the tracks and the cars of defendant, as is shown in
the letter of Mr. Bonney of July 31, 1894.
The evidence also shows that the convenience of public
travel would be greatly promoted by the operation by ap-
pellants to Grove street as authorized by the ordinance of
February 8, 1892, and as sought herein. (Abst., 57,
58.) A very large number of the traveling public desir-
ing so to pass to and from the west side by appellants’ line
from and to the south side which is traversed by appel-
lee's line would be thereby accommodated. It is also
clear that the main street railway of appellants is in and
through a different section of the city from those of ap-
pellee—the 250 or 300 feet of 22d street here in ques-
tion connecting or separating them. ---
The questions in this case are, briefly as follows:
(1.) Have the complainants the right under the ordi-
nance of February 8, 1892, under the circumstances of
this case, to use the tracks of defendant in 22d street
between the bridge over the south branch of the Chicago
25
river and Grove or Canal streets, upon any terms, with-
out or with compensation therefor?
(2.) Have the complainants such right, without or
with compensation, without showing any agreement
therefor with the defendant company ?
(3.) Have the complainants, as shown by the evidence
herein, substantially made adequate compensation to the
defendants, in the expense incurred in the reconstruction
of the east approach to the bridge, under the circum-
stances of this case :
(4.) If the complainants, under the ordinance of
February 8, 1892, and under the other circumstances of
this case, have such right, upon making compensation to
the defendant, can a court of equity sustain this bill and
therein establish such right, and herein ascertain and fix
the compensation to be paid by the complainant for the
exercise thereof *
(5.) What is the basis of such compensation?
(6.) Have the complainants, under the facts shown by
the evidence, such right by contract or assent of the de-
fendant :
Our positions in this matter, stated as concisely as we
are able, are as follows:
(1.) That aside from any agreement between the ap-
pellants and the defendant, the appellants have the right,
under the ordinance of the City of Chicago of February
8, 1892, and under the circumstances shown by the evi-
dence herein, to maintain the connection of their tracks
on 22d street with the tracks of the City Company at the
east end of the bridge over the south branch of the Chi-
ago river on 22d street, and to maintain and operate
their cars over and along the tracks of the City Company
in 22d street from said bridge to Grove street.
2 (;
(2.) That under the constitution and laws of the State
of Illinois, it was entirely within the power of the city
council of the City of Chicago to grant to the Towns
Company, by ordinance, the right to use the tracks of
the City Company on 22d street between the bridge and
Grove street, upon the terms provided in section 13 of
the said ordinance of February 8, 1892.
That such grant of authority to the Towns Company is
a valid exercise of the legislative power of controlling
the use of the streets, the police power.
(3.) That under the circumstances shown by the evi-
dence herein the complainants have made adequate com-
pensation for this right, and the defendant cannot claim
or maintain the right to any further compensation for the
use of said track in 22d street between the bridge and
Grove street.
(4.) That if the defendant was found herein to be en-
titled to any compensation, it was entirely within the
power, and it was the duty, of the court herein to ascer-
tain and determine such compensation. That this pre-
sents a proper subject for the exercise of equitable juris-
diction, to establish the right of appellants, and also
to ascertain such compensation. And that aside
from this last position, inasmuch as the jurisdiction of
equity is herein well invoked for the purpose of relief by
injunction, the principle applies that equity, having taken
relief for one purpose, will retain the jurisdiction and
grant such complete relief, even if it were legal in its na-
ture, as the circumstances of the case required. And in
this connection we shall consider what are the proper ele-
ments of damages or compensation in this case.
(5.) That the complainants have established herein
27
by the evidence an agreement with the defendant for the
use by complainants of the tracks of the defendant on 22d
street between the river and Grove street.
§ 1.
"I'HAT COMPLAIN ANTS HAV E THE RIGHT UNIDER THE ORIDI-
NANCES IN QUESTION TO USE DEFENDANT's TRACKS ON
\
22D STREET FROM THE RIVER TO GROVE STREET.
The distance from the river to Grove street on 22d
street is about 250 feet (Abst., 64, 65). While the de-
fendant has had its track constructed on 22d street be-
tween Grove street and the bridge (the east approach to
the bridge), the evidence shows that prior to the attempt
of complainants to use that track and the destruction of
complainants car, as shown by the evidence herein, the
defendant was making no use of its tracks between Grove
street and the bridge ; but that it stopped its car which
ran occasionally upon 22d street east of Grove street, at
Grove street. (Abst., 38, 54, 55). Complainant brought
over its road, which was west of the river, passengers to
and over the bridge, and thus public travel plainly required
that they be transported by complainant on its cars to
Grove or Canal street where they might connect with de-
fendant’s cars. Section 1 of the ordinance of February
8, 1892, granted to the West and South Towns Company,
its successors and assigns, authority to maintain and oper-
ate a street railway on 22d street, from Johnson street
(west of the river) to Grove street, thus including the
portion of 22d street in controversy. Section 13 of this
ordinance provided as follows:
“SEC. 13. Said company shall have the right to con-
nect its tracks with those of the Chicago City Railway
2S
Company on 22d street, at or near Grove street, but shall
have no right to construct any tracks east of the Chicago
river on said street without the consent in writing of said
Chicago City Railway Company. Said company shall also
have the right to operate its cars over the tracks not
owned by it upon such terms and conditions, by lease or
contract, as may be agreed upon between the companies
owning such respective tracks, or otherwise not in con-
flict with any of the conditions of this ordinance or the
general ordinances of the city; and provided further, that
the rate of fare to be charged upon the lines herein author-
ized, or over which said company may so operate, shall
not exceed five cents for one continuous ride for any dis-
tance within the present or future city limits.”
It is clear from these provisions that if it was within
the power of the city council to authorize the complain-
ants to use the tracks of the defendant company between
the Chicago river and Grove street, then the city council
has given that authority. Section 1 gives the right to
operate to Grove street and section 13 authorizes the com-
plainants to connect their tracks with those of the Chicago
City Company in 22d street at or near Grove street; and the
defendant company itself made the connection at the east
end of the bridge over the Chicago river (Abst., 61, 62,
63, 64, 67–68, 54). This connection was about 250 feet
from Grove street. (See Exhibit A. ; Abst., 64,65.) It
was for the City Company to say that the connection
should be at the bridge, because the complainants under
the above section had no right to “construct” any tracks
east of the Chicago river on said street without the con-
sent in writing of said Chicago City Company.
The connection had to be at , the bridge unless
the Chicago City Company should consent in writing to
the construction of tracks by the complainants east of the
bridge so as to make the connection between the bridge
and Grove street.
29
But section 13 also just as clearly gives the complain-
ants the right to operate their cars upon the tracks of the
City Company in question, upon such terms and condi-
tions as might be agreed upon between the companies, or
otherwise not in conflict with any of the conditions of
this ordinance or the general ordinances of the city. The
section clearly gives that right, and the requirement that
in order to construct more tracks, the consent in writing of
the City Company must be given, shows that no consent
to the use of existing tracks was required.
We shall contend :
1. That this grant is valid ; that it was entirely within
the power of the city council to give this authority to the
complainants.
2. That such grant of authority to complaimants is not
an invasion of private rights of the defendant. That the
right which the defendant exercises in 22d street is not a
private right at all, but strictly a public right. That the
track of the defendant in 22d street, while in the street,
is not private property of defendant, but being attached to
the street as a part thereof—as a part of the surface or
roadway of the street—for the use of the public in the
public travel upon the street, there can be no taking or
depriving of the defendant of its private property by the
use of such track for any legitimate purpose of public
travel, e. g., the use by complainants under authority from
the city council for the passage of their cars.
3. That whether or not the complainants, under the
circumstances of this case, should be herein held to com-
pensate the defendant for the use of such tracks, that
right of compensation is not secured by the provision of
the constitution that “private property shall not be taken
30
or damaged for public use without compensation.” De-
fendant has no such “private propelty” in the street or
in the exclusive use of the track which is a portion of the
street, or in the right to exclude complainants with their
cars, or anyone else with any sort of a vehicle used in
public travel upon the street. Plainly, that constitutional
provision has no application.
4. The complainants’ right to operate its cars upon
the tracks in question between the river and Grove
street, (being permitted by the city council in … the
above section of the ordinance of February 8, 1892,
passed under the powers of the city council above
mentioned in the regulation of the use of the streets,) is
the exercise of a public right, and its use of the streets
and of these tracks is a public use. And so the use, if
any, of the street, of which the defendant would be
thereby deprived, is a strictly public use. i. For the city
council, in the exercise of this regulating power, to au-
thorize the complainants to make a proper use of this
street, by reason of which (if that should be the result)
the defendant’s public use of the street should be in any
way limited, is not the taking or damaging of the private
property of defendant. Whether or not the complainant
should make compensation to the defendant under the
circumstances of this case, is another question. That we
will consider hereafter. But, plainly, the right to com-
pensation does not at all interfere with the present emist-
ence of a complete right in the complainants. In other
wórds, the prior payment of com pensation, is not an abso-
lute condition to the existence or enforcement herein of
the right in complainants. * .
5. The authority given to appellants by the ordinance
of February 8, 1892, to operate from the bridge to Grove
31
street, over the unused tracks of appellee, was a valid ext
ercise of the legislative police power over the use of the
public street. And that ordinance itself created and gave
the right to appellants.
6. The power was reserved to the city council to con-
fer this authority on appellants by section 4 of chapter
66 of the Revised Statutes, subject to which appellee ac-
quired its right in this portion of 22d street. And this
statute merely expressed a reservation which existed un-
der section 14 of article 2 of the Constitution of Illinois,
and under settled principles of law.
The defendant, the Chicago City. Company, obtained its
right to construct, maintain and operate a street railway
in this part of 22d street by ordinance of the city coun-
cil passed February 25, 1887. (Abst., 28–30.) What
was the nature of the right obtained by defendant under
this ordinance? It was laid down by Mr. Chief Justice
Shaw, in the leading case of Commonwealth v. Temple,
14 Gray, 69, 76, that “the accommodation of travelers,
of all who have occasion to use them, at certain rates of
fare, is the leading object and public benefit, for which
these special grants of using the highway are granted,
and not the profit of the proprietors.” This principle is
again quoted and approved by the same court in an
opinion by Mr. Chief Justice Gray in Metropolitan Rail-
road v. J/ghland Railway, 118 Mass., 290, 293; and
by the same distinguished judge in Richardson v. Söhley,
11 Allen, 65, 67.
In C., B. c6 (9. R. R. v. West ( / W. Sf. R. R., 40 N.
E. Rep., 100S, the court say :
“The permission to a street railway company to lay
its tracks in a street already appropriated to public use, is
not the grant of a right to appropriate an additional easc-
32
ment in the soil of the street, but the construction of
the street railroad is merely a mode of facilitating existing
travel, and of modifying or changing the existing public
use.’’
It is the clearly settled law in Illinois that the power
which the city council has with respect to streets, and
which it exercises in granting to a street railway company
the right to lay down and operate its railway for the car-
riage of passengers upon the streets, is, in its nature, the
strictly legislative power of regulating the use of the
streets. It is entirely a different power from that which
an individual or corporation, or for that matter, a
municipal corporation, exercises in granting a license
to pass over his or its private property. It is the act
of a legislature in the exercise of the trust to legislate
for the public welfare, and not of a proprietor contract-
ing with respect to his own property. This principle is
clear to a demonstration. It follows: (1) From the na-
ture and character of the holding of the public streets ;
and (2) from the terms of the grant of power to the city
council with respect thereto in the charter or acts of the
legislature in question. Let us see: In Pittsburg, &c.,
Railroad Co. v. Reich, 101 Ill., 157, the court say:
“Although, in a general sense highways or streets,
where the fee is in the state or a municipal corporation
are lands belonging to the people of the state or of the
municipal corporation, they are in legislation universally,
so far as we recall, referred to as ‘highways' or “streets,’
and not as public lands. . The ownership, in reality, in
such cases is but nominal and entirely subordinate to the
public trust for which the title is held.”
In Quincy v. Jones, 76 Ill., 231, the court say :
“It is the unquestioned duty of the city in controlling
and improving the streets to prepare them for public use
as streets, at such time and in such manner as the public
33
interests may require. Holding them in trust for the
public, and having no authority to convey or divert them
for other uses, it would seem inevitably to follow that
they can have no power to grant to individuals rights or
easements in the streets, which might in any way interfere
with the duty of preparing them for the public use to
meet the public necessities; for it is obvious that if such
rights may be granted then the practical use of the streets
may become so burdened with private rights as to place
it beyond the pecuniary ability of the city to discharge
its duty to to the public with reference to them. It is not
consistent to say that a city owes a duty to the public,
and yet that it may voluntarily place it beyond its power
to discharge that duty.”
In Stack v. City of East St. Louis, 85 Ill., 377, the
court says:
“It is true that the city holds the fee, but it is in trust
for the use of the public for the purposes of a street. The
city has no power to sell, lease or otherwise appropriate
it to other purposes; nor can it be closed or obstructed so
as to deprive the public from its use as a highway.”
In Smith v. McDowell, 148 Ill., 61, the court say:
“A municipality in respect of its streets is a trustee
for the general public, and holds them for the use to
which they are dedicated. The fundamental idea of a
street is not only that it is public, but that it is public in
all its parts, for free and unobstructed passages thereon of
all persons desiring to use it.”
This is again quoted and laid down in Field v. Barling,
149 Ill., 556 ; and the court in that case and in the case
of Smith v. McDowell, quote from the opinion in the
case of Alton v. Illinois Transportation Company, 12
Ill., 38, that “the streets were dedicated to the public for
particular purposes, and only for such purposes can they
be rightfully used. For these purposes the city may ºn-
Aprove and control them, and adopt all needful rules and
regulations for their management and use, but she cannot
alien or otherwise dispose of them.”
34
In Jackson, County, déc., Co. v. Interstate, cóc., Co.,
24 Fed. Rep., 305, Mr. Justice BREWER says that the
city might permit a street railroad “because the legisla-
ture had granted to it a general control and supervision of
the streets;” that under the power granted “ the city may
permit any ordinary use of a street as a street ;” and a
street railroad comes within the ordinary scope of such use.
But power to permit one citizen to use the streets in a given
way is a very different thing from power to give such citizen
the right to keep every other citizen from a like use of the
streets. The one is a mere street regulation—a li-
cense ; the other rises into the dignity of a contract—a
franchise. The one may rest upon the ordinary powers
of street management and control, the other requires the
support of a special grant.”
He further says:
“That it will not do to say that the grant of general
supervision and control of the streets carries with it by
implication, the power to give exclusive privileges; for
that grant implies a vesting in the city of continuous
control. It has no authority for surrendering its constant
supervision and management to any other corporation or
individual. It implies that the city to-day, to-morrow
and so long as the grant remains, shall exercise its con-
stant judgment as to the needs of the public in the
streets, and not that it may to-day surrender to an indi-
vidual or a private corporation, the right of determining
a score of years hence what the public may then need.
The city may to-day determine that one street railroad
will answer all the wants of the public, and so give the
privilege of occupying the streets to but a single com-
pany. Ten years hence its judgment may be that two
railroads are needed.”
In Canal dº C. Streets Ry. Co. v. Crescent City Ry. Co.,
41 La. Ann., 561, 564, the court held that the City of New
Orleans has paramount control and regulation over the
streets in that city, and that “the operation of a street
railway is the exercise of the right of way over the
35
streets. The streets belong to the public. * * *
The city council is without power to grant an exclusive
use of a street which belongs to the public, to the rail-
way company. It cannot thus deprive succeeding coun-
cils of the power of performing their duty of regulating
the streets as may seem to them to be for the best inter-
ests of the public.”
In St. Louis Jºy. Co. v. Southern Ry. Co., 15 South-
western Rep., 1013, the Supreme Court of Missouri lays
down this principle that the power exercised in permitting
a street railroad to be laid down and operated in the
streets of the city is the regulating power, as showing that
the same reserved power may authorize another company
to use the same tracks. In that case THOMAS, J., says:
“Where a law confers on a corporation the right to
construct and operate street railroads in the streets of a
city, such corporation must be considered as holding them
for the public use, and subject to the power of the legis-
lature, when the public exigencies require it, to authorize
another corporation to use the tracks of the former upon
making compensation for such use. This does not grow
out of the power of eminent domain or contract. It in-
heres in the power to regulate (ºnd control the public streets
for the public convenience. In the absence of an exclu-
sive grant this right is by implication reserved to the pub-
lic. In other words, in the grant of the right to lay
tracks for a street railway in the streets of a city, for the
public, the right to provide for the use of such track by
other companies is reserved, upon making just compensa-
tion. And where the right is already in the public, the
state, to exercise the right, does not proceed by virtue of
the power of eminent domain.”
In Covington St. R. R. Co. v. Covington & C. St. Ry.
Co., 19 Am. Law Reg. (New Series), 765, in the Ken-
tucky Court of Appeals, the court say that “the opera-
tion of street railways is a legitimate use of the highway,
and an exercise of the public right of travel over it.”
36
In Chicago Dock Co. v. Garrêty, 115 Ill., 155, 163–4,
the court plainly consider the granting of such a right is
the exercise of the regulating power—the power to reg-
ulate the use of the streets.
In New Orleans City ſºy. Co. v. Mew Orleans, 44 La.
Ann. 728, 748, the court say with respect to the grant to a
street railway company of the right to use the streets,
that “the power to regulate the streets is a persisting
power, not exhausted by a single exercise thereof.”
And the court quote Judge Dillon’s summary of the de-
cision of the Court of Appeals in Davis v. Mayor, 14 N.
Y., 506, that “the judgment of the court in the case
mentioned rests upon the sound principle that the
powers of the corporation in respect to the control of
its streets are held in trust for the public benefit and can-
not be surrendered or delegated by contract to private
parties.’’ 2 Dillon Mun. Corp., pars. 715, 716.
In People v. Kerr, 27 N. Y., 192, the court say of the
power of the city with respect to streets:
“The corporation of the city as a publie municipal
body holds such property by a delegation of the general
sovereign power. The authority for its acquisition and
control is a governmental power. The interest is ex-
clusively public; ſuyès, and is, in any aspect, totally unlike
property of a private corporation, which is held for its
own benefit and for its private gain and advantage.
Whatever rights of domain or enjoyment the municipal
body possesses by such a title are of the nature of public
and not private property, and the clause of the constitu-
tion which is now invoked has no application to such
rights vested, for such purposes, in that corporation.’’
(27 N. Y., 200, per Emott, J.)
“The city corporation, as fee holder of the streets, in
trust for public use as highways, is but an agent of the
state. Any control which it exercises over them, or the
power of regulating their use, is a mere police or govern-
37
mental power, delegated by the state, subject to its con-
trol and direction and to be exercised in strict subordi-
nation to its will.” (27 N. Y., 213, per Wright, J.)
It is settled in Illinois that the only reason why a rail-
road can be permitted upon the public streets is that it is
one of the proper methods of public travel in trust for
which the streets are held ; that the interest of the street
railway company is a part of the easement of the public
7m the street, and only a form of the ea’ercise by the public
of its right of passage.
Moses v. Pittsburg, Öe., Co., 21 Ill., 516.
Stack v. City of E. St. Louis, 85 Ill., 377.
Jhicago Dock Co. v. Garrity, 115 Ill., 155.
Olney v. Whaºſ, 115 Ill., 523.
C., B. c6 Q. R. R. v. West Chi. St. R.
R. Co., 40 N. E. Rep., 1013.
Digare v. City of Chicago, 139 Ill., 146.
In the last case it is said that it has been held in many
cases in the Supreme Court that it is a legitimate use of a
street to allow a steam railroad track to be laid and oper-
ated on it when there is legitimate authority therefor, and
that the leading case on this question is the Moses case, 21
Ill., 516; that the gist of the reasoning is in the follow-
ing sentence from the opinion of the court in that case:
“A street is made for the passage of persons and prop-
erty, and the law cannot define what exclusive means of
transportation and passage shall be used.”
But that this authority can only be granted to a rail-
road company when the use authorized is a proper use of
the street for the purpose of travel and is consistent with
and in no way exclusive of the other proper uses of the
street for the purposes of public travel, we refer to the
cases of Ligare v. Chicago, 139 Ill., 46; Pittsburg, cée.,
38
Co. v. Reich, 101 Ill., 157; and the cases of Dubash v.
H. dé St. Joe R. R., 89 Mo., 86, and L. C. R. Co. v.
City of Louisville, 8 Bush, 415, which are referred to ap-
provingly in the Ligare case.
This is most clearly expressed by the Supreme Court
of Illinois in the latest case decided, C. B. c6 (9. R. R.
Co. v. West Chi. St. R. R. Co., 40 N. E. Rep. 10, 13.
In that case, the court by Mr. Justice Magruder says:
“The interest of the street railway company, although
a valuable one, is a part of the easement of the pub/ic in
the street. It is carved out of such easement. It is
accessory and auxilliary to the existing right, vested in the
pub/7c, of passing over the street. * * * The pro-
pelling of street cars (over the crossing) was only a form
of the exercise by the pub/ic of its right of passage and
therefore did not operate as any infringement upon the
rights of plaintiff in error, or entitle it to any additional
compensation.’’
It follows from these authorities, all of which were
cases involving the grant of the use of streets for railway
purposes, and it is clear to a demonstration, that the ma-
ture of the power of the city council, which is appealed
to and exercised in granting these rights to a railway
company, is the legislative power, the power to regulate
the use, in the interest and for the benefit of the public,
of that which is held strictly in trust for the public pur-
poses of public travel.
That this power is of the character which we have
stated is also shown by the terms by which
it is granted by the legislature to the city council.
The powers of the city council which were exercised
in passing the ordinance of 1887 granting to defendant
permission to lay and maintain its railroad in 22d street
from State street to the Chicago river were as follows:
39
Ninth. To regulate the use of same (streets).
Thoenty-fourth. To permit, regulate or prohibit the
locating, constructing or laying a track of any horse rail-
road in any street, alley or public place, but such permis-
sion shall not be for a longer time than twenty years.
Mºnet/eth. The city council or board of trustees shall
have no power to grant the use of or the right to lay
down any laiji Cad tracks in ally street of he city to any
steam or horse railroad company, except upon a petition
of the owners of the land representing more than one-half of
the frontage of the street, or so much thereof as is sought
to be used for railroad purposes. (City and Village Act,
R. S., Ch. 24, pars. 63, clauses 9, 24, 90 ; 1 Starr & C.
Stat., pp. 463, 465, 472.)
Section 3. No such company shall have the right to
locate or construct its road upon or along any street or
alley or over any public ground in any incorporated city,
town or village without the consent of the corporate au-
thorities of such city, town or village. * * * Such
consent may be granted for any period not longer than
twenty years, on the petition of the company, upon such
terms and conditions, not inconsistent with the provisions
of this act, as such corporate authorities " " " shall
deem for the best interests of the public; provided, &c.’’
Section 4. Every grant to any such company of a
right to use any street, alley, road, highway or public
ground, shall be subject to the right of the proper author-
ities to control the use, improvement and repair of such
street, alley, road, highway or public ground, to the same
extent as if no such grant had been made, and to make all
necessary police regulations concerning the management
and operation of such railroad, whether such a right is re-
served in the grant or not. (Horse & Dummy Act, R. S.,
Ch. 66, Secs. 3 and 4; 1 Starr & C. Stat., p. 1263.)
The following provisions of the Constitution of 1870
are also material :
Sec. 14. No “ ” “ law # * * making any
irrevocable grant of special privileges or immunities shall,
be passed. (Bill of Rights, Art. 2, Sec. 14.)
Art. II. Sec. 2. All existing * * * grants of
special * * * privileges * * * which shall not
40
have been in operation ten days from the time this Con-
stitution takes effect, shall thereafter have no validity or
effect whatever.
Sec. 4. No law shall be passed by the General As-
sembly granting the right to construct and operate a street
railroad within any city, town or incorporated village with-
out requiring the consent of the local authorities having
the control of the street or highway proposed to be oc-
cupied by such street railroad. *
Sec. 12. Railways heretofore constructed, or that
may hereafter be constructed in this state, are hereby de-
clared public highways, and shall be free to all persons
for the transportation of their persons and property
thereon, under such regulations as may be prescribed by
law. (Art. II, Sees. 2, 4, 12.)
The power delegated to the City Council, under which
the defendant’s ordinance to maintain and operate its rail-
road on 22d street in question was granted, “to permit,
negulate or prohibit the locating, constructing or laying a
track of any horse railroad in any street, alley or public
place,” is clothed in the same language as the grant of
police powers. To “permit, regulate or prohibit,” is
clearly police power.
The conclusion from all this is that the city council did
not by the ordinance to appellee of February, 1887, in
any way bargain away or lessen its control over 22d
street, or its right to authorize appellants to operate cars
thereon to Grove street; that the appellee by that ordi-
nance got no private right in,or to the street, or the use
thereof; but only exercises therein strictly public right;
and that such public right may be so regulated and modi-
fied or restrained as the public interests require ; and that
this may be done by direct legislation to that end, as was
here done by an ordinance of February 8, 1892, and that
Gondemnation is not necessary.
41
It is enough to say that the ordinance of 1887, wºnder
which appellee acquired its right ºn question was
passed under and ºn view of the statute w/ich empressly
provided that such grant shall be subject to the right of the
proper authorities to control the use of such street, “to
the same eastent as ºf no such grant had been made.”
(Rev. Stat., Ch. 66, Sec. 4.)
And this section merely expressed what was already the
law under section 14, of article 2 of the constitution, and
under principles of law now well settled. The ordinance
of 1887, under which appellee claims, is to be read as if
this reservation of power were inserted therein. And by
accepting said ordinance, appellee must be held to have
assented to the valid exercise of such power ; and so to
the ordinance of 1892, under which appellants claim au-
thority, if that ordinance is a valid exercise of such
power. -
II .
THE RIGHT OF DEFENDANT UNIDER THE ORDINANCE OF
FEBRUARY 25, 1887, IS NOT EXCLUSIVE.
Rev. Stat. Ill., Ch. 66, Sec. 4.
Jackson Co. Company v. Interstate Co., 24
Fed. R., 306.
2 Dillon Mun. Corp., Sec. 727.
Canal dº C. St. Ry. v. Crescent C. Ry.,
41 La. Ann., 561
AW. O. City Ry. v. Crescent C. Ry., 44
La Ann., -728, 748.
Louisville Ry. v. St. Louis R. R.; 87
Ky., 223.
42
Bººm 'mg//lam, dºc., Zey. v. Birm ºgham St.
Jºy., 79 Ala., 465.
C. B. & Q. R. R. v. West Chi. St. R.
Jº., 40 N. E. R., 1008.
There is not one word of exclusiveness in appellee’s ordi-
nance of 1887. And under the settled rule of construc-
tion, it will not be construed into the ordinance unless
found there. In other words, in order that such ordinance
should intend to exclude the right of any person from
passing along that portion of 22d street in question, which
is occupied by appellee’s tracks, with any vehicle which
the public authorities permit, the ordinance must so pro-
vide.
The plain provisions of section 4 of the horse and
dummy act (Rev. Stat., Ch. 66, Sec. 4), that this grant
to appellee by its ordinance “shall be subject to the right
of the proper authorities to control the use * * *
of such street ºf * * to the same extent as if no such
grant had been made,” forbid any exclusive right in ap-
pellee whatever.
But, under the principles of strict construction and of
law applicable to Ordinances and grants of this kind, and
to the subject-matter, there is nothing of exclusive right
at all thereby granted.
In Jackson County IIoºse Railroad Company v. Inter-
state ſºapid Transit Mºailroad Company, 24 Fed. Rep.,
306, Mr. Justice BREWER, now of the United States
Supreme Court, was asked by one railroad company to
enjoin another company from constructing and operating
a railroad in the same street. He refused so to do and
dismissed the bill at complainant's costs.
43
The complainant produced an ordinance which pur-
ported to grant to the complainant and its lessor “the
sole right for the space of twenty-one years to construct,
maintain and operate their railway over and along all the
streets in said city.”
He said on page 307 :
“The precise question is: Had the City of Kansas the
power to grant for a term of years the exclusive right to
occupy its streets with a street railroad & That question
must be answered in the negative. Let me in the outset
formulate two or three unquestioned propositions: (1
The legislature has, as the general representative of the
public, the power, subject to specific constitutional limita-
tions, to grant special privileges; (2) it may, with simi-
lar limitations, grant the like power to municipal corpo-
rations as to all matters of a purely municipal nature ;
but (3) as the possession by one individual of a privilege
not open to acquisition by others apparently conflicts with
that equality of rights which is the underlying principle
of social organization and popular government, he who
claims such exclusive privilege must show clear warrant
of title, if not also probable corresponding benefit to the
public. Hence the familiar rule that charters, grants of
franchises, privileges, etc., are to be construed in favor
of the government. Doubts as to what is granted are re-
solved in favor of the grantor, or, as is often epigram-
matically said, a doubt destroys a grant.
Now, coming closely to the question, the legislature has
not in termis given to the city the power of granting
an exclusive privilege of occupying the streets with rail-
roads; it has not in terms given to it the right to contract
away its continuous control of the streets, and its future
judgment of the needs of the public in those streets by a
surrender of their occupation, for railroad purposes, to in-
dividuals for a series of years. Indeed, it has not in
terms made any specific grant in respect to the occupation
of streets by railroads and their operation thereon.
Upon what, then, can it be claimed that the city has the
power to give to an individual the right to occupy the
streets with railroads, secure him that right for a term of
44
years, and also the right of debarring, during such term,
every other citizen from a like use of the streets : It
was held in the Atchison case, supra, that the city might
Permit a street railroad, and this because the legislature
had granted to it a general control and supervision of the
streets. In this the current of opinion and authority was
followed. Under such power the city may permit any ordi-
nary use of a street as a street. A street railroad comes
within the ordinary scope of such use. But power to permit
one citizen to use the streets in a given way is a very dif-
ferent thing from power to give such citizen the right to
keep every other citizen from a like use of the streets.
The one is a mere street regulation — a license; the other
rises into the dignity of a contract — a franchise. The
one may rest upon ordinary powers of street management
and control, the other requires the support of a special
grant.
Doubtless the city may practically secure exclusive
operation to one railway company : 7. e., by giving per-
mission to one, and withholding permission from all
others, the occupation of that one becomes, for the time
being, exclusive. But that is an altogether a different
matter. In the one case the exclusiveness depends on the
continuous will of the city ; in the other upon that of the
individual company. In the one the full and constant
control of the streets is retained ; in the other it is par-
tially transferred to the company. ”
“As said by Judge DILLON, 2 Mun. Corp., § 727 :
“But a legislative grant of authority to construct a street
railway is not exclusive, unless so declared in terms, and
therefore the legislature may at will, and without com-
pensation to the first company, authorize a second railway
on the same streets or line, unless it has disabled itself by
making the first grant irrevocable and exclusive.’”
(It will be observed that Judge Dillon says that the
grant shall not be exclusive unless declared so in express
terms; and that Judge Brewer says that the grant which
is so in express terms is void. The one is really a rule
of construction and the other a rule of power. They are
not inconsistent. In this respect Judge Brewer’s decision
45
is in exact accord with the decision of the Supreme Court
of Illinois in the Ligare case, and the Canal and Dock
Company v. Gam'rity.)
Judge BREWER proceeds:
“And if a direct grant from a legislature carries no im-
plication of exclusiveness, why should it be presumed
that the legislature intended to vest in a city, the power
to give exclusive privileges, when it has in termis granted
no such power % Will the power to create monopolies
be presumed unless it is expressly withheld That would
reverse the settled rule of construction, which is that moth-
ing in the way of exclusiveness or monopoly passes,
unless expressly named. It will not do to say that
the grant of general supervision and control of the
streets carries with it, by implication, the power to give
exclusive privileges: for that grant implies a vesting in
the city of continuous control. It is no authority for
surrendering its constant supervision and management to
any other corporation or individual. It implies that the
city to-day, to-morrow, and so long as the grant remains,
shall exercise its constant judgment as to the needs of the
public in the streets, and not that it may to-day surrender
to an individual or a private corporation the right of de-
termining a score of years hence what the public may
then need. The city may to-day determine that one street
railroad will answer all the wants of the public, and so
give the privilege of occupying the streets to but a single
company. Ten years hence its judgment may be that
two railroads are needed. Where is the language in the
charter which restricts it from carrying such judgment
into effect by giving a like privilege to a second com-
pany? It is doubtless true, as counsel say, that capital
is timid, and will not undertake such enterprises with-
out abundant guaranties and undoubted security. But
this suggests matters of policy, and presents consid-
erations for the legislature. It does not aid in determin-
ing what powers have been granted, or in the con-
struction of charters or ordinances. When the legislature
deems that the public interests require that cities should
be invested with power to grant exclusive privileges, it
will say so in unmistakable terms, as it already has in
\ 46
some instances. Till then courts must deny the posses-
sion of such power.
Decided cases on this question are few in number, yet
these all speak one voice. In Daw's v. The Mayor, etc.,
14 N. Y., 506, it appeared that the city council had
passed a resolution granting to a company the privilege
of constructing and maintaining for a term of years a
street railroad in Broadway, in the City of New York.
The city had simply the general supervision and control of
streets, as in the case at bar. The Court of Appeals held
the resolution void ; that the city had no power to make
such a grant ; and while some of the judges thought that the
city might permit the occupation of the street by a street
railway company, all agreed that so much of the resolu-
tion as purported to bind the city for a term of years,
and thus practically divest it of full control over the
street, was beyond the powers granted to it. In Cooley,
Const. Lim. (2d Ed.), 207, it is said that “a corporation,
having power under its charter to establish and regulate
streets, cannot, under this authority, without explicit leg-
islative consent, permit an individual to lay down a rail-
way in one of its streets, and confer privileges exclusive
in their character.” People v. Merr, 27 N. Y., 188;
State v. Gas Light Co. 18 Ohio St., 262 : Gas Light
Co. v. Gas Co., 25 Conn., 20; Mayor V. Railroad Co.,
26 Pa. St., 355; Com. v. Railroad Co., 27 Pa. St., 339.
My conclusion, then, is that so much of the ordinance
as purported to give exclusive privileges to the lessor or
complainant was beyond the powers vested in the City of
Kansas, and therefore void. It has no right, therefore,
to challenge the validity of the ordinance giving defend-
ant its privileges, or to restrain the defendant from build-
ing its road. Whatever of annoyance or inconvenience
the latter’s road may cause, passes among those conse-
quential injuries which give no cause of action. It must
suffer these just as the citizen who uses the street where
its road is constructed suffers some annoyance and incon-
venience, and occasionally loss, and still without any
action against it. Pro bono publico all suffer somewhat.”
So in New Orleans Cºty Railway Company v. Crescent
City Railway Company, 12 Fed. Rep., 308, an injunc-
k
47
tion was obtained by one company to prevent another
company from running a line of railway along the same
street. The injunction was dissolved and the bill dis-
missed.
The court said :
“2. The City of New Orleans had no power under its
charter and the laws of Louisiana to grant the New Or-
leans City Railway Company the exclusive and sole right
to the use of public streets of the city for a street rail-
road.
“3. Where in the contract granting by the City of
New Orleans to a street railway company a franchise to
run and maintain a street railroad there is this provision :
‘The City of New Orleans binds herself not to grant dur-
ing the period for which said franchises are sold a right
of way to any other railroad company upon the streets
through which said right of way is hereby sold, unless
by mutual agreement between the city and the purchaser
or purchasers of these franchises;”—the city is not es-
topped from granting to other railroad companies the
privilege of running lines across any of the streets men-
tioned in the contract, nor for such short distances along
such streets where it may be deemed necessary to make con-
nections and twº-outs for other ºnes running mainly
along other streets and between its teſ'mºnº. "?
So in Birmingham & P. St. Ry. Co. v. Birmingham
St. Ry. Co., 79 Ala., 465, company No. 1 filed a bill
and obtained an injunction against company No. 2
Organizing as a street railway company, and con-
structing and operating a line over the streets occupied by
the plaintiff’s line. Company No. 1 obtained an injunc-
tion against company No. 2 in the court below, but upon
appeal this was reversed.
The court says:
“The City of Birmingham, as we have shown, has no
distinct power in its charter, express or implied, to grant
this exclusve franchise. Is there anything in this section.
48
of the code to authorize it? Conceding, that the city is in-
wested with authority to contract with the company for
the construction and running of a street railway, as a
necessary correlative of the company’s power to contract
with the city ; does this, by necessary implication, confer
the power to contract for a monopoly of privilege, and
one in perpetuity ? We are forced to the conviction
that it does not. The inquiry, in fact, is answered
by one clearly settled principle of law, which is now
thoroughly imbedded in our American jurisprudence, and
deemed to be of vast importance in the economy of our
system of free government, especially in view of what
may now be considered as the baleful result of the cele-
brated Dartmouth College case, in the perpetuity of special
privileges conferred by franchises from governments. This
principle is, that the charters of corporations are to be
strictly construed against the corporators, and that no
franchise which is granted by the state is ever construed
to be exclusive, whether it be in the nature of a contract
or not, unless it be so declared in clear terms, or be neces-
sarily implied ; or, as expressed by a learned author,
‘unless the element of exclusiveness appears in the
grant itself;’ and by another, unless the ‘terms of the
grant render such construction imperative.’ 1 High on
Injunc. (2d Ed.), § 902; Cooley's Const. Lim. (5th
Ed.), 490 (*396). There has been no departure in this
country from this doctrine since the decision of the
Charles River Bridge Case by the United States Supreme
Court, as far back as the year 1837. Charles /ē/ver
Bridge v. Warrey, Bridge, 11 Pet., 420. It was there said
by Chief Justice TANEY that ‘ in charters of this descrip-
tion, no rights are taken away from the public, or given
to the corporation, beyond those which the words of the
charter, by their natural and proper construction, purport
to convey. ' Upon precisely the same principle it has
been held and must logically follow, that no municipal
corporation, which is but the creature of the state can
make a grant of exclusive rights, whether by ordinance in
the nature of a contract, or otherwise, unless the power
to do so is expressly granted by the law-making power,
or unless it be so far necessary to the proper execution of
other powers expressly granted as to make its existence
J.9
#
free from doubt. The State v. The Cºncinnaf. Gas
Jight Co., 18, Ohio St., 262. As said by Mr. Dillon,
* such a corporation has not an exclusive power over the
subject, unless, by express words, or necessary influence,
it be plainly given to it by the legislature’. 1 Dillon on
Mun. Corp. (3d Ed.), § 114. Judge Cooley adopts the
view, that a municipal corporation cannot, “without ex-
plicit legislative consent,’ permit the construction of a
street railway in its streets, and confer on the projectors
“privileges exclusive in their character, and designed to be
perpetual in duration.” Cooley’s Const. Lim. (5th Ed.)
252 (*207). No reason is perceived why this principle is
not entirely sound, and in strict conformity to every rule
pertaining to the true functions of municipal corporations.
Whatever power they may have over the public streets
within their limits, is in the nature of a trust. This they
can exercise only for the benefit of the public, and not of
particular individuals or corporations. They have no im-
plied power to barter away to-day, as a monopoly to one,
that which the public necessities of a growing city may
require to be reserved, in order that it may be exercised
for the public benefit on tomorrow. And such seems to
be the sounder and better doctrine, although some ad-
judged cases may be found which seem to sustain a differ-
ent view. 2 Dillon, Munic. Corp. (3d Ed.), §§ 715, 716.
We nowhere find where the city authorities of Birming-
ham had any power to invest the appellee corporation
with the exclusive right which is here claimed.”
We apprehend that counsel for appellee will not deny
the power of the city council to authorize the appellants
to construct additional tracks in 22d street from the bridge
to Grove street, and so to extend their railroad to Grove
street; but they deny the power to use the tracks laid by
appellee.
But there are two tracks there already. It is within the
same power of the city council to determine that the public
interest forbids the placing of any more tracks in the
street than the two there, and still also to determine that the
public interests—public travel—requires that appellant's
5()
line and operations should extend to Grove street. And
the legislative power in charge of the public streets has
the same power to authorize the appellants to reach Grove
street along the tracks already in the street as by additional
tracks. There can be no other meaning to the provision
of the statute under which appellee’s ordinance was
passed, that the grant thereby made “shall be subject to
the right of the proper authorities to control the use *
* * of such street ºf * * to the same extent as if
no such grant had been made.” (Rev. Stat., Ch. 66,
Sec. 4.) w
The grant to appellee is no more exclusive as to the
middle sixteen feet of the street, which is occupied by
appellee’s tracks, than it is as to the twelve or sixteen
feet on each side thereof. And the right of the proper
authorities to control the use of that middle sixteen feet
is as much reserved by the statute as of the rest of the
Street.
III.
UNDER THE CONSTITUTION AND LAws OF ILLINOIs, IT WAS
WITHIN THE POWER OF THE CITY COUNCIL UNIDER ITS
POWER OVER THE STREETS, TO GRANT TO THE TOWNS COM-
PANY BY ORDINANCE THE RIGHT WITH ITS CARS TO PASS
OVER 22D STREET FROM THE BRIDGE TO GROVE STREET
UPON THE TRACKS OF THE CITY COMPANY, UPON THE
TERMS PROVIDED BY SECTION 13 OF THE ORDINANCE OF
FEBRUARY 8, 1892, AND WITHOUT THE NECESSITY OF
ANY PRIOR CONIDEMINATION.
This point was the real point of decision in the case of
C., B. dº Q. R. R. Co. v. West Chicago Streef R. R.
To., 40 N. E. Rep., 1008. In that case the plaintiff in
§ 1.
error had been given permission by ordinance of the city
council in 1862 to lay tracks from the south branch of the
Chicago river westwardly to the city limits, with the
right to cross all intervening streets, and had,
as early as 1864, constructed its railroad over said
route, and crossed, besides other streets, Ashland and
Western avenues with two main passenger tracks and two
main freight tracks. On March 10, 1892, the city coun-
cil passed an ordinance giving permission to the defendant,
the West Chicago Street Railroad Company, to lay down
and operate a street railroad in, along and across cer-
tain streets, among which were Ashland and West-
ern avenues, including those portions of said avenues
crossed by the tracks of plaintiff in error. The bill al-
leged that the street railroad company threatened to lay
its tracks across the railway tracks of plaintiff in error on
said avenues, without making compensation and without
proceeding to condemn, and thereby to take and damage
the property of the plaintiff in error without just com-
pensation, and for that purpose to tear up and displace
the tracks of plaintiff in error. By the answer of the
street railway company, it alleged that said avenues are
public streets, under control of the city council, and
claimed the right to lay its tracks under said ordinance of
1892. It will be seen, therefore, that the question was
presented whether it was necessary for the street railroad
company, in order to assert and exercise the privilege
given by ordinance of crossing the plaintiff’s
tracks across said avenue, first to condemn the
right or have ascertained and paid just compen-
sation under the constitution ; or whether, on the
other hand, the ordinance of the city council granting it
the right was valid and sufficient authority for it to exer-
52
cise such right and cross the plaintiff’s tracks without
eondemnation or payment of compensation. The court
said :
“Ashland and Western avenues, being public streets.
under the control of the city, are subject to use by the
public. The fact that the tracks of plaintiff in error are
laid across said streets, and that its freight and passenger
cars are permitted by the city to pass over the same upon
said tracks, gives plaintiff in error no exclusive use of
the crossing, but only a use to be enjoyed in common with
the public. Railroad (o. v. Reich, 101 Ill., 157. A
city has no right to authorize railroad tracks to be laid
upon streets so as to exclude the other public uses of a
street. Liſſare v. City of Chicago, 139 Ill., 46. It will not
be denied that pedestrians and carriages and wagons and
omnibuses and other vehicles have a right to pass along
these streets over and across the tracks of plaintiff in
error. A street car, running upon rails laid upon the
surface of the street, and used in the ordinary way, under
the regulations of the city authorities, is merely another
sort of carriage. The use of a street for a horse railway
is such a use as falls within the purposes for which streets
are dedicated, or acquired by condemnation. 2X -
Streets are laid out in order that the public may enjoy the
right of free passage in vehicles as well as on foot, and
such vehicles may be carriages running on grooved tracks,
or operated in the modes or by the forces which an ad-
vanced civilization may require for the general conveni-
ence. Pierce R. R., Sec. 234 ; Cooley Const. Lim.
(6th Ed.), p. 686. The laying of a street railway
in the streets of a city and the running of
cars thereon for the transportation of passengers,
must be regarded among the uses contemplated
when the street was laid out. * * * It is to be re-
membered that when the Ordinance of 1892 was passed,
granting to the street railroad company permission to lay
its tracks and operate its cars across the tracks of the
steam railroad company, Ashland and Western avenues,
upon which the street car tracks were thus to be laid,
already existed as public streets and had been used by the
public for many years. Under its charter the City of
X-
Chicago had the right to regulate the use of these streets
and to permit the construction of horse railroads thereon,
and to change the grade of railroad crossings. Rev. St.,
c. 24, Art. 5, Sec. 1, Pars. 9, 24, 25. The permission to
a street railway company to lay its tracks in a street
already appropriated to public use is not the grant of a
right to appropriate an additional easement in the
soil of the street, but the construction of the street rail-
road is merely a mode of facilitating existing travel, and
of modifying or changing the existing public use. * * *
The street car carries along the street such passengers as
would otherwise be obliged to pass over it on foot or in
other vehicles, and therefore the burden imposed upon
the land under the street is the same kind as was orig-
inally imposed on it when the street was opened. * * *
Under the authorities already discussed, the interest of
the street railway company, although a valuable one, is a
part of the easement of the public in the street. It is
carved out of such easement. It is accessory and ancil-
lary to the existing right, vested in the public, of passing
over the street. By the granting of it no new easement
is imposed upon the property of the owner of the fee, but
the old easement to which such property was already sub-
ject is merely changed so as to be adapted to an improved
mode of passage. * * *
‘‘It is also contended on behalf of plaintiff in error
that by the ordinance of 1862, and its action under it,
plaintiff in error acquired a perpetual easement in those
parts of Ashland and Western avenues crossed by its
tracks, of which it did not own the fee, and that the
crossing of its tracks by the defendant in error will be an
infringement upon the easement of plaintiff in error,
which entitles it to compensation. The contention is dis-
posed of by what has already been said. The plaintiff in
orror accepted the ordinance of 1862, and laid its tracks
across the avenues thereunder, in subordination to the
rights of the public to pass along the avenues, and over
those parts thereof where the tracks cross them. Its
rights to the crossing are, and always have been, subject
to the public easement in the streets, and subject to the
right to public passage over the same. The propelling
of street cars over the crossings are only a form of the
54
exercise by the public of its right of passage, and there.
fore did not operate as any infringement on the rights
of plaintiff in error, or entitle it to any additional com-
pensation.”
The rights of the City Company here in 22d street
were no more than, and not different in kind from, the
rights of the Chicago, Burlington and Quincy Railroad
Company in the portions of Western and Ashland ave-
nues in question in the case cited. In that case, as here,
the former company had its tracks down upon the street
under a former ordinance. The Burlington Company
had as much of an “easement '' in the street, as much of
private property right in its tracks, and in the use of
them over those streets, as the City Company here has in
the portion of 22d street in question. The city council
has precisely the same, and as much, power to authorize,
by its ordinance, the Towns Company to run its cars
over the City Company’s unused track from the bridge
to Grove street, as it had to authorize the West Chicago
Company to put in a crossing and cross the Burlington
Company's four tracks in Western and Ashland avenues.
Upon the question of the existence of the power in the city
council it is immaterial to what extent the alleged private
property right is invaded. But as a matter of fact, the
Burlington tracks and right was much more interfered
with in the case cited than the City Company’s tracks and
right would be here. The Burlington tracks would be
disturbed, taken up and replaced with “crossings.” The
City Company’s tracks here would not be interfered with
at all. And clearly the expense, interference with busi-
ness and loss to the Burlington Company by the opera-
tion of street cars over the crossings of its tracks re-
ferred to would be greater and not less than the damage
to the City Company. Indeed, it is plain here that the
55
oxercise by appellants of the right to run their cars to
Grove street, where the City Company's operation
ceases, would be a great benefit to the City Company in
the way of additional business, as well as a great con-
venience to the traveling public using appellant’s line.
That the use by one company of the existing street
railway tracks of another company may be directly au-
thorized by legislative power without the acquisition of
such right by condemnation, or, in other words, that such
right of user may be given under the legislative power
of regulating the use of the street and need not be ac-
quired by the exercise of the power of eminent domain as
is done in the case of appropriation of private property
to public use, is settled by the cases of the Metropolitan
R. R. Co. v. II.//land Jøy. ('o., 11 S Mass., 290, and
Met. Jºy. Co. v. Quincy /ēy. ('o., 12 Allen, 262, and
other Massachusetts cases. By statute in Massachusetts,
by statute directly, such right of user is given and the
matter of fixing the terms and compensation is left to the
board of railroad commissioners, which plainly exercises
the regulating power, and not the function of the jury in
the case of private property condemned for public use.
This question was also directly involved in the case of
the Union Ry. Co. v. Southern Ry. Co., 105 Mo., 562.
The court stated the case upon this question substantially
as follows:
“The plaintiff, in terms, disclaims the right to use the
street now occupied by it to the exclusion of all other
street railroads; but it insists: Fºrst, that the defendant
can acquire the right to run its cars over the plaintiff’s
track only by the exercise of the right of eminent domain :
Second, that the municipal assembly of St. Louis has no
power to enact laws for the exercise of that right by one
street railroad over the property of another like company,
56
7//rd, if the charter attempts to confer such power upon
the assembly, then such charter provisions are unconsti-
tutional and void ; Fourth, if the charter is valid and
even confers such power, then ordinance number 12652
is invalid, because it does not give the plaintiff a trial by
jury and for various other assigned reasons.
These objections interposed by the plaintiff are all based
upon the assumption that the defendant can only acquire
the right to run its cars over the plaintiff’s track by a
process of condemnation. We must, therefore, at the
outset determine the question whether the defendant has
acquired the right to use the plaintiff’s track, or whether
it must acquire that right by condemnation.’’
And the court held that condemnation was not neces-
sary to create the right of the defendant to use the tracks
of the plaintiff company in 6th street, but was conferred
by the ordinance of the city.
So in St. Louis Jºy. Co. v. Southern Ry. Co., 15 S.
W. Rep., 1013. In that case the court say :
“Where a law confers on a corporation the right to
construct and operate street railroads in the streets of a
city, such corporation must be considered as hold-
ing them for the public use, and subject to
the power of the legislature, when the public
exigencies require it, to authorize another corporation to
use the tracks of the former upon making compensation
for such use. This does not grow out of the power of
eminent domain or contract. It ºm/teres ºn the power to
7'egulate and control the public streets for the public con-
wenience. In the absence of an exclusive grant, this right
is, by implication, reserved to the public. In other words,
in the grant of a right to lay tracks for a street railway in
the streets of a city, for the public, the right to provide
for the use of such track by other companies is reserved,
upon making just compensation. And where the right is
already in the public, the state, to exercise the right, does
not proceed by virtue of the power of eminent domain. It
is already the owner of the right, but it must pay for it
before it can use it. When the state proceeds in the ex-
57
ercise of its power and right of eminent domain, it seeks
to acquire the right to the use of private property. In
both cases just compensation must be made, but the ex-
ercise of the power in the two cases is different. In Cow-
&ngton Ry. Co. v Covington & C. Ry. Co., 19 Amer.
Law Reg., U. S., 765, this very question was decided.
The legislature of Kentucky authorized plaintiff to con-
struct and operate a street railroad, and afterwards author-
ized defendant to construct a street railway also, and ‘to
connect with and use the track of any other street railway
company in said city or vicinity, upon equitable terms.'
Judge THOMAs here quotes at length the opinion of the
Rentucky Court of Appeals, which is cited infra, and
then proceeds. And to show that Chief Justice COFER
did not intend this conclusion to be based on the doctrine
of eminent domain, he adds: “And, in our opinion, may
be sustained upon another ground equally, if not more
satisfactory.’ This other ground, he goes on to show, is
the right of eminent domain. Judge REDFIELD says:
“A legislature may, nevertheless, allow other persons,
either natural or corporate, to do a similar business in the
same streets, or to do it upon the tracks of an existing
company, by making compensation to another 'company
when in their judgment the public good requires it. In
the one case, the grant, being wholly independent, is un-
derstood to be made because the amount of the travel is
supposed to require two modes of conveyance, and in the
other the compensation is regarded as equivalent to the
use.’ 1 Redf. R. R., 318. Streets are opened and
maintained for public travel and commerce. A
street railway is almost universally held to be a legiti-
mate use of the street, and its construction in poses
no additional servitude upon the soil it occupies, so
as to entitle proprietors abutting on the streets to
compensation. Jersey (7ty dº /3. R. Co. v. Jersey (7ty
dé II. H. R. Co., 20 N. J. Eq. , 61, and cases cited. Its
tracks form a part of the street for the ordinary use of
the public. It is required to construct its roadbed so as
to obstruct public travel as little as possible. It has a
license to put its rails down in secure and permanent form
for the operation of its cars. The operation of its rail-
way is the exercise of the public right of way over the
58
street. The city has no power to grant the street, or a
franchise in the street, for a private purpose; and the city
has no power, without special authority from the state, to
grant an exclusive right to a street railway company to
use the street. ‘It is impossible to foretell what changes
in the manner of using streets may be occasioned by im-
provements in the modes of travel, or what modifications
in the use of the modes now employed may be required
by the increase in population and trade, or by the shifting
of the centers of business and the routes of trayel from
one part of a city to another. The necessities and con-
venience of the public may require to-day but a single
street railway, but circumstances may be so changed in
half a score of years as to require many lines. From their
nature and purpose for which they are used, street rail-
ways must be confined to streets or other public thorough-
fares, where the space that can be occupied by them is nec-
essarily limited. It may be impossible to meet the de-
mands of the situation, unless new routes, made necessary
since the establishment of old ones, can be extended over
some portions of streets already occupied by old ones; and
it may be equally impossible without unduly interfering
with other uses of the streets equally necessary to public
convenience and comfort, to give such street railway com-
pany a separate track throughout the length of its line.’
Com/ngton Ry. Co. v., (ow/nſ/fon cé C. Ry. Co., 19
Amer. Law Reg., 765.
The constitution declares all railroads public highways,
and the charter of the City of St. Louis provides for the
joint use of the street railway tracks in the city limits by
the different street railway companies. And it is the duty
of the courts to construe these provisions so that, while
affording ample protection to capital against arbitrary
state or municipal spoliation, the rights of the public will
be upheld, by limiting, at least, the monopolistic tendency
and guaranteeing fair competition between public
carriers. If the present routes of travel from Market
street to Washington awen we, along ſºft/ (tºd S/m//
streets, in the Cºty of St. Louis, are not sufficient to af.
..ford accommodation to all w/o have occasion to use them,
then it is the manifest duty of the municipalify of //e
city to authorize those having the wall and the means to
provide facilities to supply the additional demand.
59
The defendant corporation having a right to the use of
respondent’s tracks under the charter and ordinances of
the city, the respondent is not entitled to an injunction to
restrain it from exercising that right, without alleging
and proving such facts as clothe the courts with power to
grant relief in the exercise of their equitable jurisdiction,
and, respondent having failed to make any such allega-
tions or proof, the injunction herein granted ought to be
dissolved. It is so ordered.”
It will be borne in mind that in stating that the right
must be paid for before it can be used, the court is fol-
lowing the requirement of the statute in that state, and
is not stating a constitutional requirement, or principle
of law. But the gist of the case is that the right may
be directly conferred by legislative act, and does not need
to be acquired by condemnation.
So, in Covington Street Railroad Company v. Coving-
#on dº Cºncinnati Street Railway Company, reported in
19 Am. Law Register (New Series), page 765, com-
pany No. 2 was authorized to “connect with and use
the track of any other street railway company in the said
city or vicinity upon equitable terms.” The appellee
“having completed its road, commonced running cars
over it and over those portions of appellant’s track be-
tween Short street and Scott street, and between the
south end of the approach to the bridge, and the Bridge
Company’s track on the bridge on which its cars enter
the City of Cincinnati.” The appellant brought this suit
to enjoin the use of its track by the appellee. The
chancellor dismissed the petition.
The court said:
“The question presented is one of more than usual in-
terest and importance. On one hand is the company by
which a street railway has been built, claiming protection
for its private right under its charter and the contract
6(f
with the city ; on the other hand is the interest of the
public in the full and complete enjoyment of the use of
the streets of the city, represented by the appellee.
The streets of towns and cities belong primarily to the
whole public, every member of which has an interest in
their use. The right to control and regulate the use is vested
in the legislature, to be exercised at all times in the inter-
est of the public, and every legislative regulation should
have for its object the security of the public right to use
and enjoy the streets for those purposes for which they
were established and are maintained, and every legislative
act relating to the use of streets should be so construed,
if possible, as not only to secure the fullest enjoyment of
their use, but so as to preserve intact, and without dimi-
nution by one legislature of the power of succeeding leg-
islatures to control the use of streets, in such manner as
the public convenience may, in their judgment, demand.
It is impossible to foretell what changes in the man-
ner of using streets may be occasioned by improvements
in the modes of travel, or what modifications in the use
of the modes now employed may be required by the in-
crease of population and trade, or by the shifting of the
centers of business and the routes of travel from one part
of a city to another.
The necessities and convenience of the public may re-
quire to-day but a single street railway, but circum-
stances may be so changed in half a score of years as to
require many lines. From their nature, and the purpose
for which they are used, street railways must be con-
fined to streets, or other public throughfares, where the
space that can be occupied by them is necessarily limited.
It may be impossible to meet the demands of the situa-
tion, unless new routes, made necessary since the estab-
lishment of old ones, can be extended over some portions
of streets already occupied by old ones, and it may be
equally impossible, without unduly interfering with other
uses of the streets equally necessary to public conven-
ience and comfort, to give such street railway company
a separate track throughout the length of its entire line.
When such a state of case presents itself, one of three
courses must be pursued : 1, to permit new companies
to run their cars over the tracks of old companies, upon
61
terms as may be equitable ; or, 2, to allow the older com-
panies to occupy such new routes as may extend over a
part of the old routes ; or, 3, to sacrifice the public con-
venience and comfort, and the right to use any and all
streets and parts of streets in all the modes in which
streets can be appropriately and lawfully used, in the in-
terest of private corporations created primarily for the
public good.
The last of these alternatives ought not to be accepted,
unless it shall appear that there is no legal means of avoid-
ing it. No act of the legislature should be so construed
as to lead to such a result unless its terms are so plain as
to leave no room for a different conclusion, and when no
other conclusion can be reached, it will become a question
whether one legislature has power, by granting to an indi-
vidual or corporation a franchise in a public street, to
bind succeeding legislatures, and to deprive them of the
power and disable them to perform the duty, to regulate
and control the use of streets in such a manner as each
may judge that the public welfare demands.
The second alternative is scarcely less objectionable.
The old companies would have the city completely at their
//werey. Aware that no new company could be authorized
to use their tracks, they would demand such terms as
their cupidity might dictate, or they might be unable or
unwilling to undertake the new enterprise on any terms,
and the public would thus be made subject to the most
exorbitant exactions, and to depend for the necessary ex-
tension of the railway system of the city upon the whims
and caprices of irresponsible corporations.
The first alternative is, therefore, the only one that is
not fraught with the most serious consequences to the
public. This, however, furnishes no sufficient reason for
adopting that alternative rather than the others, unless it
can be done upon sound legal principles. But that such
consequences may follow, affords a very cogent reason
for looking closely into the claim asserted by appellant
that the legislature has no power to authorize the appel-
lee to run its cars upon appellant's track. Whether
public convenience demanded that the right should be
given, was a question to be decided by the legislature,
and its decision upon that point is conclusive on the
courts.
62
We, therefore, proceed to the question in the case, had
the legislature the power it attempted to exercise? The
presumption is that it had. The burden is on the appel-
lant to prove that it had not. This is attempted to be
done by claiming that the appellant has a right of prop-
erty in its track which, like ordinary property, is secured
to it under the constitution.
That it has a qualified right of property in its track
superstructure may be admitted. But it will not be de-
denied that an individual or corporation may place his or
its property in such circumstances that the public may
use it without and even against its consent.
The appellant holds title to its cars more absolute than
its title to its track, yet as long as they remain on its
track and are driven along the streets, the public have a
right to enter and be transported in them to any point on
its line, and to require that the car shall be stopped to
enable them to alight. This right in the public arises
from the circumstances in which the appellant has placed
its property. The right to carry passengers is expressly
given, but the right of the public to be carried is merely
implied from the right in the corporation to carry. It is
nowhere expressed. So the right of the public to have
the appellatºf's track used for transport/ng passenger's ºn
the carriages of other companies is not ea pressed. But
may it not, ///e the 7%ght of ind/viduals to be carried in
the appellant’s carriages, be implied from circumstances
Žn 70//e/, it has placed its ſpack, and the nature of //e
business ºn 10//c/, //e track is adapted to be used?
The appellant has no interest in the soil under its track.
The operation of street railways is a legitimate use of the
highway, and exercise of the public right of travel over
it : ///mo//n//n v. IIorse Railroad Co., 2 C. E. Green,
74; Jersey Cºty, (6c., Railway Co. v. Jersey City, déo.,
Ratſ/way Co., 5 /dl., 60. A street railway track is a
part of the street. Individuals may drive ordinary
vehicles upon it at pleasure, provided they do not un-
reasonably interfere with the passing of cars on the track.
The track presents only slight impediments to the ordi-
nary use of the street, and does not commonly require any
change in the grade, and in states in which the construc-
tion of steam railroads through streets is held to be a new
63
servitude from which abutters are entitled to compensa-
tion as for land taken for public use, it is almost uniformly
held that no such right exists because of the occupation
of streets by street railways. The reason is, as we have
before said, that the operation of street railways is a
legitimate use of the streets, and an exercise of the public
right to travel upon them.
It is true no person can lawfully place upon a street
railway track a carriage adapted to run only on the iron
rails and use it for transporting passengers along the
line, unless expressly authorized to do so. When the
legislature grants to one person the right to construct a
railway in a public street, and to carry passengers'
for hire, the grant is necessarily exclusive so long as simi-
lar authority is not granted to another. No person would
expend money to construct a railway if all others, or
any other, might at pleasure put cars upon and use it to
carry passengers for hire without making compensation
for the use of the track. But although such exclusive
privilege be granted, why should it continue to be ex-
clusive : The only reason that can be given is that the
grantee has expended money or assumed obligations on
the faith of the grant.
But did it not do so with the knowledge, implied at
least, that it held its right subordinate to the power and
duty of the legislature to regulate and control the use of
the streets in such manner as the public interest might, in
its judgment, from time to time demand 7
There was no attempt by express words in the appel-
lant's charter to give it the exclusive right to run cars
upon the streets occupied by its track, or even upon the
track itself, and we have decided that no such exclusive
right exists as to the streets. As to the track placed in
the street, and thereby made a part of the public high-
way, and which the exigencies of the public interest might
demand for the use of other companies, we th/n/ the 1///ºf
to Włs earcſ usive use was received and held, subject to f/le
Apower of the legis/ature, to perm it it to be used by such
other persons or corporations (Is it might direct, whenever
ºn the judgment of the eſſ/s/ature a due regard to the
public ºght to use the streets, renders it necessary to do so.
This conclusion is in accord with the views of Judge
64
Redfield, as expressed in his report to the Massachusetts
legislature upon the nature and extent of street railway
franchises. 1 Redfield on the Law of Railroads, Vol. 1,
p. 315, 322, and is supported by the opinions of the Su-
preme Court of New York in Railroad Co. v. Kerr, 45
Barb., 138 ; and the Supreme Judicial Court of Massa-
chusetts in Sºr, ??/ v. Boston and Ma/ne Railroad Co., 6
Allen, 262, and in our opinion may be sustained upon
another ground equally, if not more satisfactory.
Whatever proprietary right a street railway company
may have in its track, such right cannot be more sacred
than the right of natural persons to property owned by
them, and is equally suiject to the power of eminent do-
main.
Discussing this subject, Judge CooDEY says:
* Franchises, like every other thing of value, and
in the nature of property within the state, are sub-
ject to this power (of eminent domain), and it is be-
lieved that an express agreement in the charter, that the
power of eminent domain should not be so exercised as
to impair or affect the franchise granted, if not void as an
agreement beyond the power of the legislature to make,
must be considered as only a valuable portion of the priv-
ilege secured by the grant, and as such liable to be ap-
propriated under the power of eminent domain.” Const.
Lim., 281, top p., 4th Ed., 343.
After saying that when the existence of a particular
power in the government is recognized on the ground of
necessity, it cannot be surrendered or bargained away by
the department which holds them in trust, and that if
this might be done the authority to make the laws for the
government of the state might be so exercised in strict
conformity to the constitution, as at length to destroy the
state by disabling it to perform its ordinary and essential
functions, the same author proceeds to say: “It must
follow that any legislative bargain in restraint of the com-
plete, continuous and repeated exercise of the right of
eminent domain is unwarranted and void.’ Id., 525, top
p. 652.
The power of eminent domain is founded in necessity,
and is given to enable the government to provide for
necessary public buildings, works and improvements.
65
And of the necessity for its exercise the legislature is the
sole and exclusive judge, provided the use in aid of which
the power is exerted be a public use. The carrying of
passengers for hire is a prerogative of sovereignty. The
use of a street by an incorporated railway company for
carrying passengers between different points in a city is
public use.
The legislature authorized the appellee to connect with
and use the track of the appellant upon equitable terms,
that is, by paying to the appellant a fair compensation
for the use of its track.
If we treat the track as the private property of the
appellant, and as in a situation to be protected by the
guaranty of the right to private property contained in the
constitution, the legislature had no power to authorize it
to be used, except in the exercise of the power of eminent
domain. We must, therefore, hold, in this aspect of the
case, that in giving the appellee the right to connect with
and use the appellant's track, the legislature intended to
exercise the power of eminent domain, and as it has pro-
vided for compensation, the act was a valid exercise of .
that power. * * *
The appellee’s charter does not provide a mode of as-
certaining the ‘fair compensation to which the appellant
is entitled, nor how nor when it shall be paid.
In view of this defect in the charter, if the appellee’s
right could only be sustained under the power of eminent
domain, and it was seeking the aid of the chancellor to be
let into possession, we should doubt whether he ought to
extend such aid until the amount of compensation due
should be ascertained and paid, or secured. But the ap-
pellee is already in possession, and the chancellor is ap-
plied to for an injunction to enjoin it from continuing to
use appellant's track. It is not claimed that the appellee
has refused to pay or is unable to pay. In such a case
the chancellor, who must always exercise a sound discre-
tion in acting upon an application for an injunction, might
properly refuse it.
If the parties cannot agree upon the amount and time
of payment of the compensation due to the appellant, the
chancellor, with the aid of the master, has ample power
to do so. -
66
The city is made an appellee by an amended statement
of parties, but we do not perceive that the appellant can,
under any circumstances, be entitled to any relief against
the city on account of the matters involved in this litiga-
tion.
Judgment affirmed.”
It will be observed that the case resembles that at bar
in very many respects. It was a case of one company
connecting with the tracks of another company over a
bridge approach. It was also a case where the connection
was completely made, and the rights to such connection
established by the preceding conduct of the parties be-
fore the application was made. The court say that the
power of the city to grant the right to connect and use
such portions of the existing track is inherent in the city,
and is not dependent on the power of eminent domain, and
that while there might be some doubt, if the application
had been made before the connection was established, and
if the right of the second company stood solely upon an
attempted exercise of the power of eminent domain,
it might be proper to require the compensation to
be first paid as a condition of aiding the second
company; yet where the rights were established by con-
duct of the parties, and he was then asked to enjoin the
second company from using the tracks of the first com-
pany, it was a proper exercise of the chancellor's discre-
tion to refuse the injunction and dismiss the bill.
So here, the right was given to “connect the tracks
and to operate over the second company’s tracks with
their consent or otherwise not in conflict with law.” The
agreement to connect the tracks was made, and the tracks
were in fact connected at the joint expense and by the
joint agency of the two companies. All the acts neces-
sary to the mutual rights and interests were complete.
67
Then company No. 2, in setting out to enjoy the joint
use of the tracks which had been constructed in this 300
feet at the joint expense and by the joint agency of the
two companies, is met, not by prayer for injunction,
which the Supreme Court of Kentucky say should be re-
fused, but by a crowbar injunction issued by their own
superintendent.
The distinction between the application to this court for
an injunction, and the issuing of a crowbar injunction is
obvious. In order to come into this court for an injunc-
tion, the defendant company would have to come with
clean hands. No such preliminary is required to the use
of the crowbar injunction.
The Court of Appeals of Kentucky took a similar view
of these questions in the case of Lon//sv///e City Raiſacay
(ompany v. St. Louis /'assenger Jºaº/road Company, 87
Ky. Rep., 223.
There the application was made direct to the chancellor
to fix the compensation, which he did, without, meanwhile,
enjoining the use of tracks. (See page 235.)
So in Birmingham and /*att Mines Street Railway
Company v. The Bºm/ng/am Street Jºaºlucay Company,
79 Ala., 465, to which we have above referred.
It is clear that the grant to appellee by its ordinance of
February 25, 1887, did not take away or lessen the power
of the city council to give appellants these rights confer-
red by the ordinance of February 8, 1892, and that this
right in appellants was conferred directly by the legisla-
tive act—the ordinance last mentioned. And that appel-
lee can assert, as against the same, no private property or
contract right under the ordinance of 1887, which re-
quires condemnation. This is emphatically true in view
6S
of the provisions of the statute to which we have refer-
red (R. S., Ch. 66, Sec. 4), and of the constitution to
which we will now refer. *
I W .
TIB E APPLICATION OF THE CONSTITUTIONAT, PROVISIONS.
The following provisions of the constitution of 1870
are material :
SEC. 14. No º * * law “ ” * making any
irrevocable grant of special privileges or immunities,
shall be passed. (Bill of Rights, Art. 2, Sec. 14.)
ART. 11, SEC. 2. All existing * * * grants of
special * * * privileges * * * which shall not
have been in operation ten days from the time this con-
stitution takes effect, shall thereafter have no validity or
effect whatever.
SEC. 4. No law shall be passed by the General As-
sembly granting the right to construct and operate a
street railroad within any city, town or incorporated vil-
lage, without requiring the consent of the local author-
ities having the control of the street or highway proposed
to be occupied by such street railroad.
SEC. 12. Railways heretofore constructed, or that
may hereafter be constructed in this state, are hereby de-
clared public highways, and shall be free to all persons
for the transportation of their persons and property
thereon, under such regulations as may be prescribed by
law. (Art. 11, Secs. 2, 4, 12.)
It is settled that the ordinance of 1887, by which ap-
pellee acquired its right to lay down and operate its street
railroad in the portion of 22d street in question (Abst.,
28–30), is a law within the meaning of section 14 of ar-
ticle 2 of the constitution.
Mason v. Shawneetown, 77 Ill., 533.
City of Chicago v. Me ('oy, 136 Ill., 344,
351.
J/ayes v. Mich. C. R. R., 111 U. S., 228,
237.
69
It is equally clear that the rights given thereby to ap-
pellee to lay down, maintain and operate its railroad is,
as it is claimed and asserted by appellee, a “special priv-
ilege ’’ within the meaning of this provision.
Birming/a/. St. Ry. Case, 79 Ala., 465.
This ordinance of 1887 was then a law making a grant
of special privileges to appellee.
And section 14 of article 2 of the constitution says that
it cannot be irrevocable. It is not an inviolable contract,
nor the basis of private vested property right in the pub-
lic street or its use.
That this provision of the constitution has this precise
purpose, is also made clear from the proceedings of the
constitutional convention, which incorporated it in the
constitution.
The very object of this provision was to eliminate from
the law of Illinois the notion that a public license in a
public highway conferred irrevocable and exclusive vested
rights which could not be limited.
This provision was introduced in the committee of the
whole by Judge L. S. Church (2 Debates Const. Conven-
tion, 1870, page 1644), after one of similar import had
been introduced by Hon. L. L. Whiting ( 1 bid., Vol.
1, p. 146), and buried in the committee on cor-
porations. Judge Church’s amendment was opposed
in the committee of the whole on the supposed
ground of “vested rights '' by such lawyers as O. H.
Browning, W. H. Underwood and Messrs. Hay, An-
thony and Turner, but it was supported by Hon. Joseph
Medill and Messrs. Church, Benjamin, Peirce, Hildrup,
Rice, Ross, Snyder and Whiting. It was adopted in com-
mittee of the whole by 35 yeas to 16 nays ( / bid., 1646),
70
and in the convention at large after a long debate, the
attempt to reject it was defeated by a vote of 46 to 18.
(Ibid., 1715.)
We beg to quote from the debates:
In the constitutional convention of 1870 (proceedings,
page 1585), the question was upon the adoption of the
following:
SEC. 16. “The General Assembly shall not pass any
ea post facto law, or law impairing the obligation of con-
tracts, nor make any irrevocable grant of special priv-
ileges or immunities.”
Mr. SKINNER proposed an amendment by inserting the
words “ by special law '' after the word “make ’’; and
in support thereof said :
“The articles upon the legislative department, in sub-
stance and effect, confines the creation of all corporations,
except municipal, to organizing under one common gen-
eral law. Now, that general law will be subject to all
proper alteration, change and amendment from time to
time.
If, as to all future corporations, we take away the fun-
damental guarantee of non destruction by the legislature,
and confine the legislature in voting upon these corpora-
tions, to police matters, we subserve the public interest.”
Mr. McDow ELL said :
‘‘I desire to call the attention of the convention to
what is a contradiction in this section. It declares that
no law shall impair the obligations of contracts, nor make
any irrevocable grant of special privileges or immunities.
A law is passed under which persons or corporations
enter into a contract that ought not to be violated, but
always sustained. The latter portion of this seems in
conflict with the first part. I desire, if in order, to move
to strike out all of the section after the word “contracts.”
We propose after these laws have been passed, and or-
ganizations have taken place, in good faith, to strike out
and to do away with all that has been done to violate
pledges that may have been made.”
7
1
Mr. CHURCH said :
“I regard the amendment offered by the gentleman
from Adams (Mr. Skinner) as striking at the very heart
of the constitution that we propose to make, so far as re-
gards the relations we propose to allow to exist between
the people of this state and the corporations hereafter to
be created. I concede that for one, that in the insertion
of this clause in the Bill of Rights, I did mean, and such
I believe to have been the meaning of the whole commit-
tee, to strike out the very power of the legislature here-
(ºften fo ever grant any corporation priº/eſſes whaterey
but such as should be subject to law. It, sir, is a very fa-
tal error that the gentleman has fallen into, and that
many other public spirited men have fallen into, who de-
sire to encourage internal improvements by private cor-
porations, that to reserve the control of these corpora-
tions in the sovereign power of the state, will be to dis-
courage the investment of capital for such purpose. I do
not believe, sir, that such will be or ever has been the ef-
fect.
In our sister State of Wisconsin, can it be said that the
people have labored under any difficulties, under any
wants not gratified in respect to the building of railroads,
or in respect to the combination of capital of individuals
in corporations for any business purpose, by reason of the
power to regulate their concerns, and even limit the tolls
and compensations they should take, being reserved in
the General Assembly -
I say, sir, that I have never heard any complaint of
that kind, and I live upon the very border of that state
upon a railroad passing my place of residence a few miles
before it enters that state, where, therefore, a portion of
it becomes subject to the laws and limitations of that
state. There is the same ease, the same readiness of cap-
italists to engage in the construction of roads there as
here, and yet this very clause exists in the constitution.
It applies to railroad companies, to all corporations, to all
persons, individuals or associations, and seeks to bring to
one common level all persons, corporations, money and
property of the state, whereby there shall not be granted
to any person, corporation, association or combination,
any power that is higher than the sovereign power of the
state.
Aº
( 2.
If it is true that there is a growth within us that has
risen above us, we never wish to encourage that growth
hereafter. If any institutions have grown amongst as,
that have received from the state powers that cannot be
controlled by the state, that are higher than the state, let
7ts put an end to the possibility of any such growing up
hereafter. I do not believe that there are any institutions
now in the state but what the sovereign power of the
state may reach, and yet, perhaps, such franchises and
privileges have been granted and rights secured, by being
improvidently yielded by the state, as to require the ex-
ercise of a power based upon other contingencies than the
mere common principles of legislation to subject them to
the common level.
But we propose in this constitution to assert the righ/
((nd lay the foundation, to place al/ privileges heretofore
granted upon a common level, subject to legislative con-
trol in the future.
It does not follow that because the right is reserved in
the sovereign power of the state to withdraw or receive
any privileges it has granted, that therefore it will do so.
That the state has the right to inflict any injury, and
therefore, it will do so, is not a fair presumption. It
does not follow that because the power is vested in the
legislature of the state, acting as the representatives of the
whole people, to regulate the property invested in railroad
corporations, to regulate even the amount of tolls, that
they will ever do so. It does not follow, if they do so,
that it will ever try to destroy or injure the value of the
property that is invested. I think that I but speak the
interest of the stockholders themselves, of the very in-
terests held by the capital that has built these railroads,
when I say that those interests would generally be better
subserved now, if the whole regulation were within the
power of the General Assembly, rather than the power of
the directors, superintendents, presidents and other
officers that they themselves have elected ; that so far as
the interest of capital itself is concerned, it would thereby
be subserved, and its investments encouraged. The fact
is that it is not the interest of capital, directly invested
by stockholders, that is sought to be subserved by these
officers of corporations, for, on the contrary, it is the
interest that some of them may hold in other regards than
as stockholders.
73
It is true, as was said at the time one of these
great corporations was first organized and was beginning
to operate, by a distinguished gentleman from Chicago,
who is now no more, but who will be remembered by the
delegates from that city, that that railroad corporation
was a ‘splendid real estate speculation with a railroad at-
tachment.' That, sir, was very truly said, and it is true
of a large number of the railroad corporations of the state
Il () W.
We are told, sir, that these railroad corporations are
not making money, that they are not paying dividends to
their stockholders, and that, therefore, they cannot re-
duce their rates for transportation, that they cannot sub-
ject themselves to lower tolls and other regulations that
the imperative demands of commerce and agriculture re-
quire, because they already are not earning enough money
to pay proper dividends to their stockholders; and un-
doubtedly their stockholders very often are made to be-
lieve it; then, what is the real state of the case? Why,
their superintendents, presidents and directors, after hav-
ing built a railroad, the ordinary receipts of which, under
proper regulation and reasonable tolls and rates, would
produce a proper income to the stockholders, have some
large tract of land which they have procured at govern-
ment price, or perhaps at a graded price, and also have
perhaps have bought individually—not as stockholders—
tracts of land, here and there, at different points, for fifty
or a hundred miles reaching off to this great tract of
land, which they have bought for the purpose of locating
their depots and stations. They take then the very earn-
ings of the railroads that are now built and that should
constitute a fund for the distribution of dividends to their
stockholders, and run a new branch off somewhere to
their yet almost unexplored territory, whereby their
directors, superintendents and presidents become vastly
rich all at once, while the stockholders receive no com-
pensation. And to how many instances in this state can
we point, of officers of railroad companies whose prop-
erty is rated at many millions of dollars who have never
been engaged in any other business than railroading, and
who never received a dividend on their stock.”
The amendment of Mr. Skinner to limit the “irrevo-
74.
cable grant ’’ to special laws was rejected by a vote of
yeas, 10; nays, 38.
The amendment of Mr. McDowell to strike out all
• 3
after the word “contract ’’ was then rejected by a vote
of yeas, 7; nays, 42.
The section was then agreed to (p. 1587) and was re-
ferred to the committee on revision and adjustment (p.
1590). It was reported back in the following form (p.
1778):
“SEC. 14. No ea post facto law, or law impairing the
obligation of contracts, or making any irrevocable grant
of special privileges or immunities, shall be passed.”
And was ordered to be enrolled.
The special committee on address reported (page
1863):
“All irrevocable grants of special privileges or immu-
nities are prohibited, to protect the people against privi-
leged orders and dangerous monopolies ''
Which address was declared concurred in by the con-
vention (p. 1864).
During such debates Mr. Medill said:
“I believe there is no remedy to be obtained in com-
peting lines. Competing lines will always work in har-
mony with each other. The real remedy is for the peo-
ple, through this convention and the state legislature, to
to assert their sovereignty and supremacy over all the
creatures of the legislature, and declare what the law
should be in this regard.
People tell us that the courts have decided against us,
and the Darmouth College case, and a pile of law re-
ports as high as a man’s head is brought forward to prove
the assertion. Commencing with that case, there is a
uniform line of decisions that the legislature have no
power to pass a law impairing the validity of a con-
tract. It is within my recollection, sir, that decisions
of the highest courts have been overruled and overturned
by the uprising of the people—by the ground swell of
the masses. * *
75
It is not long since it was the decision of the Supreme
Court that no bridge could be built across a navigable
river. But look now at the Ohio and Mississippi, and
you will find that at different points they are spanned by
magnificent structures. That decision has been reversed,
because the demands of the people and the demands of
commerce required it. There was once a decision of the
highest court in this country, that black men had no rights
which white men were bound to respect. That has been
reversed by the decision of the people at the ballot box,
and now there is no sound lawyer in the land who would
risk his reputation by reaffirming that obsolete de-
CIS1() I).
The decision of courts that a railroad charter is a con-
tract between the people and the legislature, and that this
contract is irrevocable and inviolable, must be overruled.
We must have a new deal and new decisions upon this
subject, and we in this convention must take the initiative
and declare no/at the law should be in this regard.
And, sir, a circumstance at this instant comes into my
mind which I must advert to. The gentleman from Adams
[Mr. Browning] said, in some remarks he made some
weeks ago, that there was no monopoly on the part of
those railroad corporations, because the people had the
right to load up their wagons and proceed on their weary
way to market, the same as they did before railroads
were built.
Sir, with the highest respect to the wisdom and judg
ment of the gentleman, I can but regard that argument as
an insult to the people of this state, whose land has been
taken without their consent, and given away to private
corporations on the plea of public benefit. * * *
But, sir, as this has thrown me somewhat off the line of
argument I designed to make, I will simply recur to it
again by saying that, in my judgment, the decisions of
the courts hereafter will vary from those we have had
heretofore upon this particular. I believe that the courts
in this land have always heretofore shown a disposition to
yield something to the general sentiment of the people,
that there has been a disposition always manifested to ae-
quiesce in the demands of the public, and to mould and
modify preceding decisions in accordance with the require-
ments of public good. * * *
76
It is the duty of this convention to assert this principle
emphatically and distinctly in the organic law, so that the
courts will have something to fall back upon, to render a
new line of decisions ºn this particular.” *
We contend that it is clear beyond question that by this
provision of the constitution it was intended that all the
power should be reserved which is contained in any of the
clauses of statutes of Żncorporations reserving the right to
pepeal or modify charters.
But where such a power is reserved, it is well settled
that the legislative power can authorize one street railway
company to use the tracks of another company without
condemnation, and that the prior company is not entitled
to have the right condemned and the compensation first
ascertained by a jury. *
Metrop. R. R. Co. v. Highland St. R.
R. Co., 118 Mass., 290.
Metrop. R. R. v. Quincy R. R., 12
Allen, 262.
Birmingham St. Ry. Case, 79 Ala., 465.
Covington St. R. R. v. Covington dº C. St.
Ry., 19 Am. L. Reg. (U. S.), 765.
St. Louis Ry. V. Southern Ry. , 15 S. W.
Rep., 1013.
Union Depot Æy. v. Southern Ry. , 105
Mo., 562.
77
W .
WHERE THERE IS SUCH A RESERVATION OF POWER BY CON-
STITUTION OR STATUTE, AS IN THE CONSTITUTION AND
STATUTE OF ILLINOIS, THE POWER OF THE CITY COUNCIL
IN CONTROL OF THE STREETS TO GRANT THE RIGHT HERE
GIVEN APPELLANTS IS WELL SETTLED.
We have seen that by the constitutional provisions
above mentioned, no such inviolable grant of special priv-
ileges in the public street, as appellee here claims under
the ordinances of 1887, can be made. And that the pro-
visions in question were inserted in the constitution so as
to prevent the appeal to the contract clause and the vested
rights clause of the constitution, to protect such grants of
public right from proper regulation or direction of their
use by the public authority.
We have also seen that the statute by which this grant
to appellee was made, expressly reserved the right of the
proper authorities (the city council) to control the use of
such street to the same extent as if no such grant had
been made. (Rev. Stat., Ch. 66, Sec. 4.)
The ordinance under which appellee here claims was
passed after and in subjection to these provisions.
And we submit it is clear that in view of them, no claim
of vested private property or contract right in the public
street, or in the public use thereof, can be asserted by ap-
pellee under this ordinance as against the ordinance of
1892, and the authority thereby given to appellants to
give the public better and needed facilities for public travel
along such street.
In Massachusetts the state provides that the board of
railroad commissioners may determine the terms and
78
compensation on which one street railway company may
use the tracks of another. In Metrop. R. R. Co. v.
Highland St. R. R. Co., 118 Mass., 290, a petition was
present ed to railroad commissioners under the statute to
determine the compensation to be paid for the use by one
company of the tracks of another company. The com-
missioners took evidence on the subject and made an
award determining the amount, which amount the Su-
preme Court approved. The court sustained the award
expressly upon the ground “that the legislature might
lawfully, whenever it deemed it necessary for the better
accommodation of the public, authorize another corpora-
tion to lay a similar track through the same streets or to
use the tracks of the first corporation, making compensa-
tion to that company for the use and wear of its tracks,
without making it any compensation for the diminution
of its profits or the value of its franchise.”
To the same effect see Metropolitan Railroad Com-
pany v. Quincy Railroad Company, 12 Allen, 262.
The statute of Massachusetts provides for compensation
to be determined by the railroad commissioners.
So in Union Depot Railway Company v. Southern
Railway Company, 105 Mo., 562, as we have seen, the
same legislative power to authorize one railway company
to use the existing tracks of another company in the
streets, is established.
That case was one of three cases which went up from
St. Louis to the Supreme Court of Missouri, involving
substantially the same question. Another is reported in
St. Louis Railway Company v. Southern Railway Co.,
15 Southwestern Rep., 1013, which we have also before
cited. All these cases were equity cases and sustain the
legislative act as creating the right without condemnation.
79
So in Covington Street Railroad Company v. Coving-
to dº Cºncinnati Railway Company, reported in 19 Am.
Law Register (New Series), page 765, company No. 2
was authorized to “connect with and use the track of any
other street railway company in said city or vicinity upon
equitable terms.” The appellee “having completed its
road, commenced running cars over it and over those por-
tions of appellant’s track between Short street and Scott
street, and between the south end of the approach to the
bridge, and the Bridge Company's track on the bridge on
which its cars enter the City of Cincinnati.” The ap-
pellant brought this suit to enjoin the use of its track by
the appellee. The chancellor dismissed the petition, and
this was confirmed in a thoroughly considered opinion.
By the city and village act, the broadest legislative
powers with respect to these matters of local concern are
given to the city council. (See clauses 9, 24, 25, 26, 27,
66.) Indeed, in view of them, and of the constitutional
prohibition of local or special legislation by the General
Assembly (which does not apply to the city councils,
Chicago C. Ry. v. People, 73 Ill., 541), most of this
legislation in this state must be by these municipal legis-
latures. And their ordinances have all the effect of acts of
the General Assembly.
80
W I.
THE PROVISIONS OF THE ORDINANCE OF FEBRUARY S,
1892, AUTHORIZING APPELLANT, THE TOWNS COMPANY.,
ITS SUCCESSORS AND ASSIGNS, TO OPERATE ITS CARS
LſPON THE TRACKS OF APPELLEE FROM THE BRIDGE TO
GROVE STREET HEREIN CLAIMED, ARE THE VALID EX-
ERCISE BY THE CITY COUNCIL OF THE ‘‘ POLICE
POWER.'”
The principle is well settled that the powers of provid-
ing streets and highways and for the convenience of the
public travel thereon are important governmental police
duties.
See,
C. dé W. W. R. R. v. City of Chicago,
140 Ill., 309.
Ill. C. R. R. v. Willenborg, 117 Ill.,
203. -
C., B. dº Q. R. R. v. Atty. Gen., per
Dillon, J., 9 Western Jur., 347.
In L. S. dé M. S. Ry. v. C. dé W. J. R. R. Co, 97
Ill., 516, the court, speaking of railways, says:
“In so far as such property is to be regarded as public
property, or devoted to a public use, the General Assem-
bly may consent, in behalf of the public, that the charac-
ter of the use may be changed.”
In C., B. dé Q. R. R. v. Atty. Gen., 9 Western
Jur., 347, Judge DILLON said: --
“In all civilized countries the duty of preserving safe
and convenient highways to facilitate trade and communi-
cation between different parts of the state or community
is considered a governmental duty. This may be done
by the government directly, or through the agency of
81
corporations created for that purpose. The right of pub-
lic supervision and control over public highways results
from the power and duty of providing and preserving
them. * * * Over the railway as a highway, and in
all its public relations, the state, by virtue of its general
legislative powers, has supervision and control; and over
the rights of the shareholders, so far as these are private
property, the state has the same power, and no greater
than over other private property.’’
In 1/l. C. R. R. Co. v. Willenborg, 117 Ill., 208, the
court, speaking of the legislative police power over rail-
roads, says:
“All property devoted to public uses takes on a nature
or qualification quasi public, and is for that reason held
to be subject to legislative control in a greater or less de-
gree, and to which the mere private property of the citi-
zen is not subjected. * * * Where property, whether
belonging to a natural person or a corporation, becomes
* affected with a public interest, it ceases to be juris
privati only.” Or where a party devotes his property to
the public use, the community at large acquires such a
qualified interest as will subject it to legislative control
for the common welfare. Accordingly, the property of
railroads and other similar corporations transacting
business for and with the public, has been subjected
to burdens not imposed on owners of mere private prop-
erty, used purely and exclusively for private interest.
The distinctions in this regard have been uniformly
observed.”
And in that case it was held that the provision of the
statute requiring railroads to construct farm crossings
across their own railroads, and at their own expense, was
a valid exercise of the police power as against a railroad
company previously incorporated.
If the public convenience and safety is so promoted by
a farm crossing as to make such an imposition upon a
railroad of a crossing over its own property a valid exer-
cise of the police power, how much more is this true of
82
the public convenience in travel by street cars along a
street of a great city.
So the constitutional provision as to connections of rail-
roads is a police power.
Art. XIII, § 5, in defining the policy of the state that
highways shall connect with each other and so fulfill their
objects, provides :
“And all railroad companies shall permit connections
to be made with their track, so that any such consignee,
and any public warehouse, coal bank or coal yard may
be reached by the cars on said railroad.”
This is imperative.
C. dé A. R. Co. v. Suffern, 129 Ill., 374.
That which is known as the “police power '' is “noth-
ing more or less than the powers of government inherent
in every sovereignty, that is to say, the power to govern
men and things.”
License Cases, 5 How.,583, per Taney, C. J.
JMunn v. Illinois, 94 U. S., 124, 125.
It varies in its extent and scope, not only with the
varying occasion or necessity for its exercise, but with
the varying subject-matter to which it is applied. It may
be applied to the private property of the citizen. But it
has a much wider and more far reaching application to
property, which (although owned by an individual or cor-
poration), is devoted by the owner, and to the extent
that it is devoted by the owner, to a public use. There-
fore, railroads are subject to that power to a much
greater degree than the private property of the individual,
and for additional reasons.
Ill. C. R. R. v. Wºllenborg, 117 Ill., 208.
J. R. Co. v. Commissioners, 79 Me., 394.
C. dé M. W. Ry. v. City of Chicago,
140 Ill.
83
To the extent that property is public; furls, to that ex-
tent the public authority can control or direct its use.
Mumm v. Illinois, 94 U. S., 113, 126.
Lake View v. Rosehill Cemetery, 70. Ill.,
191, 194.
And, plainly, when the subject-matter is the public use
of a public street, which is wholly and peculiarly public.
juris, there would seem to be no limitations on legislative
power where its exercise is to promote public travel and
the proper public use of the street.
The power exercised by the city council in passing the
ordinances here in question, the power to regulate the use
of the streets for the greater convenience of public travel
therein, is, of all others, a matter of government. It was
never supposed, even when the Dartmouth College Case
was decided that the exercise of such a power could be
regarded as the basis of private contract right. Such
misapplication of that case is of a later growth. It was
distinctly disclaimed in that case. In the Dartmouth
College Case it had been argued that if the contract clause
of the Federal constitution should be given the effect there
contended for in respect to corporate franchises, “it
would be an unprofitable and vexatious interfer-
ence with the internal concerns of a state; would
unnecessarily and unwisely embarrass its legislation
and render immutable those institutions which are es-
tablished for the purposes of internal government, and
which, to subserve these purposes, should vary with vary-
ing circumstances.”
But Mr. Chief Justice MARSHALL, in announcing the
decision of the court, was careful to say in response to
this apprehension :
“That the framers of the constitution did not intend to
restrain the states in the regulation of their civil institu-
84
tions, adopted for internal government, and that the instru-
ment they have given us is not to be so construed.”
Stone v. Mississippi, 101 U. S., 814.
The use of the public streets in a rapidly growing city,
which in a few years outgrows all the facilities of public
travel, and the necessary provision for the increase of
facilities therein, is emphatically a matter, “the govern-
ment of which, from the very nature of things, must ‘ vary
with varying circumstances.’” And the government of
such matters is the exercise of the police power which
does not form the basis of a private contract right.
Stone v. Mississippi, 101 U. S., 814.
These ordinances relate to “a pub/We subject, within
the domain of the general legislative power of the state,
and involving the pub//e rights and public welfare of the
entire community affected by it.” To such cases the
doctrine of the Dartmouth College Case has no applica-
tion.
“In all such cases there can be no contract, and no ir–
repealable law, because they are governmental subjects.
They involve public interests and legislative acts con-
cerning them are necessarily public laws.”
Mewton v. Commissioners, 100 U. S., 548.
In Snell v. Chicago, 133 Ill., 413, the City of Chicago
attempted to remove a toll-gate and toll-house which had
been erected in Milwaukee avenue prior to annexation of
the territory to the city under certain acts of the legisla-
ture incorporating the toll-road company, and granting to
it the right to appropriate certain highways. The appel-
lant claimed, as appellee here claims of its rights under
its ordinance, that these acts of the legislature were con-
tracts, and that although this territory had been
3.
S5
annexed to the City of Chicago, the city could not take
away or impair these contracts and vested rights of the
toll-road company, without condemnation and the
making of compensation according to the requirements of
the constitution. But the court held that the power to
change the use of the public highway eſcisted; and that
these acts of the City of Chicago, under the powers con-
ferred by its charter, were valid. And the court says,
( and this fits the case of the contention of appellee
here, that the control by the public of the public
use of this street in question in this case has been in some
way limited and lessened by the ordinance of February
25, 1887 :)
“The state could not be bound by a contract whose en-
forcement under new conditions would be forbidden by
the constitution. It follows that the Plank Road
Company and its vendee must be held to have accepted
the charter granted to them upon the implied condition
and under the implied understanding that the right to use
the highway for a toll-road should give way as to such
part thereof as should become subjected by the growth
of the state, its increase of population, to the control
and government of the incorporated city.”
W II.
The authority for appellants’ operating over the exist-
ing tracks in 22d street from the bridge to Grove street,
is then given by the governmental power of the city
council over the public streets, the police power of regu-
lating and governing that which is strictly public; juris.
And this power is expressly reserved by the statute under
which appellee’s grant in question was made. (Rev.
Stat., Ch. 66, Sec. 4.) Appellants’ use does not in any
sense involve the taking of private property for public
86
use; but on the other hand, their grant of authority to
use is the direction and control of the use of strictly pub-
lic property for the greater public convenience which was
so expressly reserved by the statute. Therefore we say
that the constitutional provision that private property
shall not be taken or damaged for public use without just
compensation, has no application. And that condemna-
tion is not necessary to give us such authority. Our ordi-
nance, the legislative act, gives us the authority.
We shall now consider the question of our right to sus-
tain this bill with reference to appellee’s right to compen-
sation. *.
V III.
JURISDICTION IN EQUITY HEREIN WITH RELATION TO THE
QUESTION OF COMPENSATION.
Our positions are as follows:
1. If under the circumstances in proof herein, as we
contend, appellee is not entitled to compensation, then
plainly the jurisdiction herein is good.
2. If, on the other hand, the court should find that
under the circumstances appellee should have compensa-
tion, a court of equity can ascertain such compensation
and provide for its payment. And this is a good bill for
this purpose. -
We need here now consider only the second of these
positions.
Our position is this :
We have established appellants’ authority to use the
portion of 22d street in question based upon the legisla-
tive act of control of the use of the streets—the regula-
87
tion of matter of public right—the police power, which
does not require condemnation to acquire private property
rights from appellee. And again, that in granting to the
City Company its right in 22d street by ordinance of
1887, this right to control the use of the streets was re-
served by section 14 of article 2 of the constitution, and
section 4 of chapter 66 of the Revised Statutes.
It is settled that where a right exists under legislative
authority, a court of equity can enforce such right, as it
can enforce a contract right; and where compensation is
to be made to the other party, the court may ascertain
and fix such compensation in the case of a legislative
right as well as in the case of a contract right.
Here appellants have a legislative right to operate their
cars over the 250 or 300 feet of tracks in 22d street be-
tween the bridge and Grove street laid down, but not
now used by appellee.
In Central Trust Co. v. Wabash, St. L. dé P. Ry.
Co., 29 Fed. Rep., 546, 557, Mr. Justice Brewer said :
“That a court may enforce by its decree either a con-
tract or legislative right to the use by one railroad com-
pany of the tracks of another, cannot, it seems to me,
under the intimation of the Supreme Court in its recent
decisions in the Eapress Cases, 6 Sup. Ct. Rep., 542, be
doubted. In England, legislation has been had in refer-
ence to this matter, and the right thus granted has been.
enforced by the decrees of courts.”
The decree in this case was affirmed by the Supreme
Court of the United States in Joy v. St. Louis, 118 U.
S., 1.
See, also,
Shrewsbury Ry. v. Stow, V. Ry., 2 DeG.,
M. & G., 865.
88
In the Express cases, 2 McCrary, 570, 117 U. S., 1
(there were three cases argued together), the Southern
Express Company in two of the cases filed its bills in
equity praying for an injunction against certain railway
companies from interfering with or disturbing complain-
ant’s enjoyment of express facilities upon the defendants’
lines of railway and from refusing to receive of and trans-
port complainant’s express matter, and that defendants
might be decreed to transport at all times express matter
of complainant with the same accommodations as it might
transport its own express matter, and to make a reason-
able reduction or rebate in charges made to be fixed by
the court. One of the bills was filed by the Adams Ex-
press Company against the Missouri, Kansas and Texas
Railroad Company, and prayed for an injunction against
the railroad company from interfering with or disturbing
the enjoyment by plaintiff of express facilities or express
matter and from refusing to receive and transport its ex-
press matter in like manner as the railroad company was
then transporting or might transport for itself or for any
other express company, express matter and messengers.
The Circuit Court decreed in favor of the complainants,
the express companies. In the Circuit Court the cases
were argued before Mr. Justice Miller and Circuit Judge
McCrary, and Judge Treat took part in the consideration
thereof. The Circuit Court, in its opinion, said :
‘‘ I am of the opinion that a court of equity, in a case
properly made out, has the authority to compel the rail-
way companies to carry this express matter, and to per-
form the duties in this respect which I have already indi-
cated, and to make such orders and decrees, and to
enforce them by the ordinary methods in use necessary to
that end.
“While I doubt the right of the court to fix in advance
the precise rates which the express company shall pay and
89
the railway shall accept, I have no doubt of its right to
compel the performance of the service by the railway com-
pany, and after it is rendered, to ascertain a reasonable
compensation and compel its payment.” (117 U. S., 31;
2 McCrary, 570.)
The Supreme Court upheld this jurisdiction in equity to
establish and enforce a legislative as well as a contract
right in this respect where it existed, but found that in
those cases it had not been so created.
The court say:
“The regulation of matters of this kind is legislative
in its character, not judicial. To what extentit must come,
if it comes at all, from Congress, and to what extent it
may come from the states, are questions we do not now
undertake to decide ; but that it must come, when it does
come, from some source of legislative power, we do not
doubt. The legislature may impose a duty, and when
âmposed, it no?//, ºf necessary, be enforced by the courts,
but, unless a duty has been created either by usage, or
by contract, or by statute, the courts cannot be called on
to give it effect.” (117 U. S., 29.)
The bill in this case at bar sets up all the facts showing
complainants’ legislative right; the ordinance of Febru-
ary 8, 1892, creating that right; the ordinance of Febru-
ary 25, 1887, under which defendant laid its tracks ; the
public necessity for such additional facilities which called
for the ordinance to complainants; and the great public
convenience of travel to be promoted thereby ; the refusal
of defendant to recognize such right, and its denial there-
of, and its forcible and violent resistance to the same ;
the prior recognition of defendant of such right by con-
necting its tracks with those of complainants (as well as
allegations of an agreement between the complainants and
the defendant); and the bill prayed that complainants’
right might be established by decree, to operate their
cars along said tracks in 22d street to Grove street, and
90
&
*
for an injunction against interference with such operation,
and from all injury to complainants and their cars.
and equipment in the operation of their cars over said
tracks to Grove street, and from interference with or in-
jury to or destruction of cars or equipment of complain-
ant, while in use along said tracks, and for other and fuller
relief, the complainants by the bill submitted to do equity.
And all these facts showing such legislative right are ad-
mitted or established by uncontroverted evidence. It is
therefore, we submit, clear that complainants have pre-
sented to the court a bill of complaint which (aside from
any question of express agreement between the complain-
ants and defendant for suéh use) shows in the complain-
ants a legislative right, seeks its establishment and pro-
tection, and offers to do equity. If defendant had made
no express agreement, and complainants were compelled
to rely entirely upon this legislative right and authority,
this bill presents a case for relief; and the court thereon
should establish the right, and if defendant is, in the
opinion of the court, entitled to compensation, then the
court should fix such compensation.
Joy v. St. Louis, 138 U. S., 1, 46.
V II.
THE RIGHT OF APE’ELLANT'S HERE CAN BE SUSTAIN ED AS A.
CONTRACT RIGHT.
1. Because there was, as we shall hereafter show, a
contract in effect made between the parties, having for
its purpose the use by appellants of the track in
question.
2. The appellee, the City Company, by accepting its
ordinance of 1887, thereby, as much agreed that the city
91
council might exercise the right reserved by section 4 of
chapter 66 of the Revised Statutes (viz.: “ to control the
use of such street to the same extent as if no such grant
had been made”) as if that reservation had been inserted
in its ordinance of 1887. The same is true as to the
powers reserved by the limitation of section 14 of article
2 of the constitution ; and by the reserving clause at the
end of said ordinance of February 25, 1887. In other
words, its ordinance is to be read as if these reservations
were contained in said ordinance and expressly assented
to by appellee. And the authority to appellants by the
ordinance of February 8, 1892, to operate its cars to
Grove street over the tracks laid by appellee was passed in
the exercise of such reserved power. Appellee must then
be held to have assented to this ordinance of February 8,
1892. The right of appellants here is as much a contract
right; and there is as much or more privity here between
appellants and appellee with respect thereto, as there was
between the St. Louis, Kansas City and Colorado Rail-
road Company and the Wabash, St. Louis and Pacific
Railway Company in the cases of Central Trust Co. v.
Wabash, St. L. (6 /’ ſºy, 29 Fed. R., 546, and Joy v.
St. Louis, 138 U. S., 11.
In the cases last cited a tripartite agreement was made
between the commissioners of Forest Park (a public mu-
nicipal board having control of Forest Park at St. Louis),
and two railroad companies, relating to the right of way
of these railroad companies through the park. The agree-
ment contained a provision in the ninth clause thereof
that the railroad company “shall permit, under such rea-
sonable regulations and terms as may be agreed upon,
other railroads to use its right of way through the park
and up to the terminus of its railroad in the City of St.
Louis, upon such terms and for such fair and equitable
92
compensation to be paid to it therefor as may be agreed
upon by such companies.”
The tenth clause of said agreement provided that the
railroad company “ hereby admits that its right of way
hereinbefore described, with the conditions above stated,
is not exclusive of a right of way to any other railroad
through any portion of said park, and nothing herein con-
tained shall be construed to limit or impair the right now
held, or which may hereafter be conferred upon said
park commissioners to grant to other railroads a right
of way over or above or under other portions of said
park.”
The rights and property of the two railroad companies
in question became vested entirely in the Wabash Com-
pany, and the Wabash Company in the foreclosure case
of Central Trust Company v. Wabash, St. L. dé P. Ry.
Co., above mentioned, passed into the hands of receivers.
Thereupon another company (a stranger to said agree-
ment), the St. Louis, Kansas City and Colorado Railroad
Company (a part of the Atchison system) desiring to gain
an entrance into the City of St. Louis, filed its petition or
bill in equity against the Wabash receivers, asking to
have established by decree its right to use the Wabash
tracks through Forest Park, and the Wabash terminals,
under the provision above mentioned contained in said
tripartite agreement between the park commissioners and
the other two railroad companies, and asking to have the
amount of compensation to be paid by it therefor
ascertained by the court of equity. There was no privity
between the Wabash Company and the St. Louis, Kansas
City and Colorado Railroad Company, (which was a stranger
to the agreement) except the provision reserved by the park
board in the agreement as to allowing the use of the
terminals by other companies.
The Circuit Court (Brewer and Treat, JJ.), in 29
93
Fed. R., 546, above cited, sustained and established the
right of the St. Louis, Kansas City and Colorado Railroad
Company to use the Wabash terminals, and ascertained the
compensation; and this was affirmed by the Supreme
Court in Joy v. St. Louis, 138 U. S., 1.
There is the same basis for the same relief here.
There is clearly shown by the evidence here (what there
was not in the Wabash case above referred to) a distinct
7'ecognition by the appellee of the right of appellants to
reach Grove street with their cars. In the case cited, the
Wabash Company unequivocally and at all times repudi-
ated the right claimed by the St. Louis, Kansas City and
Colorado Company. But here it is established and not
disputed that the appellee received without protest or re-
ply Mr. Bonney’s letter of July 31, 1884, which asserted
the purpose (and so the right) of appellants to go to
Grove street over appellee’s 300 feet of tracks; and after-
wards appellee itself made the connection of its own
tracks upon the bridge approach with those of appellants
upon the bridge, after the bridge and its approaches (in-
cluding the approach containing appellee’s tracks in ques-
tion) had been reconstructed so as to sustain appellants’
cars at appellants’ expense. And this connection of
tracks plainly was made by appellee in order that appel-
lants’ cars could pass on to appellee's tracks in question.
In Joy v. St. Louis, 138 U. S., 46, the court say :
“The appellants having denied all right of the Colo-
rado Company under the tripartite agreement, it became
necessary for the intervenors to come into a court of
equity ; and the court, having taken cognizance right-
fully of the subject-matter in controversy, has the power
to settle not only the right but also the amount of com-
pensation. * * * The prayer for an injunction to
restrain the Wabash Company and its receiver from re-
94
fusing to permit the Colorado Company to use the right
of way of the Wabash Company from the north line of
the park to Eighteenth street, is a prayer for all that is
necessary to secure practically the specified performance
of the agreement.”
Dinham v. Bradford, L. R., 5 Ch. , 519.
Tillett v. Charing Cross Bridge Co., 26
Beav., 419.
Raphael V. Thames Valley /ēy., L. R., 2
Eq., 37.
Tscheider v. Biddle, 4 Dillon, 55.
JBiddle v. Ramsay, 52 Mo., 153.
Arnot v. A/earander, 44 Mo., 27.
J/ug v. Van Burklee, 58 Mo., 202.
Gregory v. Mighell, 18 Wes., 328.
In Joy v. St. Louis, 138 U. S., 50, the court further
say :
“The fact that the railroads which are to be allowed
under paragraph 9 of the tripartite agreement to use the
right of way through the park and up to the terminus in
the City of St. Louis are not named in that paragraph is
of no importance. Wolverhampton Railway Co. v. London.
and Worthwestern Railway, L. R., 16 Eq., 433 : Fæpress
Cases, 117 U. S., 1 ; Railway Co. v. Alling, 99 U. S.,
463.
Railroads are common carriers and owe duties to the
public. The rights of the public in respect to these great
highways of communication should be fostered by the
courts, and it is one of the most useful functions of a
court of equity that its methods of procedure are capable
of being made such as to accommodate themselves to the
development of the interests of the public, in the progress
of trade and traffic; by new methods of intercourse and
transportation. Here is a great public park, one of the
lungs of an important city, which, in order to maintain
its usefulness as a park, must be as free as possible from
being serrated by railroads; and yet the interests of the
public demand that it shall be crossed by a railroad. But
! 95
the evil consequences of such crossing are to be reduced
to a minimum by having a single right of way, and a
single set of tracks, to be used by all the railroads which
desire to cross the park. These two antagonisms must
be reconciled, and that can be done only by the interposi-
tion of a court of equity, which thus will be exercising
one of its most beneficent functions.”
See, also, as to relief in equity:
Tobey Furn. Co. v. Rowe, 3 App. Ct., 293.
Springer v. Borden, 154 Ill., 668.
* . t &
Strohiraier v. Zeppenfeld, 3 Mo. App., 429.
In the case at bar it appears that 22d street is the great
and direct artery along which the public travel from the
populous and rapidly increasing west and south-west por-
tion of the city must pass in order to reach conveniently
the southern or middleportion of the south side. North of
22d street, and between 22d street and Van Buren street,
such communication is largely cut off by intervening rail-
roads. Appellants’ railroad gives the needed facilities to
reach that west and south-west side. That travel is forced
upon 22d street as the most convenient and almost the
only thoroughfare. Yet appellee stands with its ordi-
nance of 1887 (which it does not itself carry out by fur-
nishing the needed facilities for this travel on 22d street
east of the river to the bridge) and asserts that by reason
of its contract rights thereunder the public authorities
were helpless to afford these facilities upon the public
Street.
It is also an important fact not (t/one upon this ques-
tion of jurisdiction, but upon the appellees’ rights and
case herein (and the fact is undisputed on this record),
that appellee has been running no cars (ſt al/ upon the
tracks in question between the bridge and Grove street.
(Abst., 38, 54–55.)
96
In Railway Co. v. Alling, 99 U. S., 463, Congress
had, by act of June 8, 1872, granted to the Denver and Rio
Grande Railway Company the right of way through pub-
lic lands including the Grand Canon of the Arkansas, for
railroad purposes. On March 3, 1875, Congress passed
an act granting the right to pass through the public lands
of the United States, to corporations duly organized under
the laws of any state or territory or act of Congress, pro-
“viding that any railroad company, whose right of way,
“ or whose track or roadbed upon such right of way, passes
“through any canon, pass or defile, shall not prevent
“any other railroad company from the use and occu-
“ pancy of said canon, pass, or defile for the purposes of
‘‘ its railroad, in common with the railroad first located
“ or the crossing of its road at grade.” After this date
the Denver Company located its railroad through the
Grand Canon of the Arkansas. The Canon City Railway.
Company was organized under the laws of Colorado, and
also located its line through this canon under this act of
March 3, 1875.
On March 3, 1877, Congress passed an act amending
the act of June 8, 1872, so as to read that the Denver
Company should have ten years from the passage of the
original act to complete its railroad. The Supreme Court
held that when the Denver Company accepted the
benefits of this extension act of March 3, 1877, it must
be held to have assented to the provisions of the said act
of March 3, 1875, whereby it was declared, in the inter-
est of the public, that any other railroad company duly
organized under the laws of any state or territory, might
use and occupy the canon for the purposes of its railroad
in common with the first one located.
97
The court say:
“When, therefore, it accepted the benefits of the act of
March 3, 1877, it must be held to have assented to the
provisions of the act of March 3, 1875, whereby it was
declared, in the interest of the public, that any other rail-
road company duly organized under the laws of any state
or territory might use and occupy the canon, for the pur-
poses of its road, in common with the road first located.
At the time of the passage of the act of March 3, 1875,
Congress had become convinced of the importance to the
country, and particularly to the western states, of pre-
serving canons, passes, and defiles in the public domain
for the equal and common use of all railroad companies
organized under competent state or territorial authority,
and to which might be granted by national authority the
right of way.”
So here, appellee by accepting its ordinance of 1887,
assented to the exercise by the city council of the reserved
power to give the authority in question to appellants.
The case last cited is also an instance of a court of
equity exercising the jurisdiction to establish and enforce
rights under legislative grants.
I X .
THE EVIDENCE ESTABLISHES IN EFFECT AN AGREEMENT
BETWEEN THE PARTIES FOR, AND ASSENT BY APPELLEE
COMPANY To, THE USE BY APPELLANTS OF THE UN USED
TRACKS LAID BY ADIPELI, EE BETWEEN THE RIVER AND
GROVE STREET. AND APIPELLEE IS ESTOPPED BY THE
FACTS HEREIN TO DENY ITS ASSENT THERETO.
In our statement of facts we have referred to some of
the facts, for the most part confining ourselves to
the undisputed or admitted facts. It will be borne in
mind that the defendant does not deny, but admits that
. 98
Mr. Bonney, representing the Towns Company, called
upon Mr. Grinnell, the general counsel of the appellee
company, desiring to make some “running arrangement”
with the appellee company ; and that Mr. Bonney also
communicated with the directors of the appellee company
in 1892, without response (Abst., 69); and that in some
of the conversations Mr. Bonney desired to lease or enter
into some contract for leasing or use of some part or por-
tion of the tracks of the City Company. It is not denied
by appellee that Mr. Bonney, on behalf of the General
Company, wrote the letter to Mr. Grinnell of July 31,
1894. (Abst., 43, 44.) It is clear, from this undisputed
evidence, that the appellee company knew that appellants
were seeking to exercise the rights conferred upon them
by the ordinance of February 8, 1892; and so knew of
the terms of that ordinance ; and that what the appellants
were doing, they were doing under its provisions. Ap-
pellee knew this also from the fact that appellants’ tracks
were laid upon and across the bridge, and that this was done
in order to operate their cars on to and down the east ap-
proach ; because, plainly, the cars could not practicably
and safely be stopped and run over on to the other track,
or the terminus of appellants’ operation be, either on the
too narrow bridge or on the steep approach. But Mr.
Bonney testifies that in the first of his conversa-
tions with Mr. Grinnell, during the months of August
and September, 1894, and at Mr. Grinnell’s request, he
called Grinnell’s attention to section 13 of
the ordinance of February 8, 1892; and re-
quested Grinnell to consider and fix the connection of
the tracks of the Towns Company with the tracks of the
appellee lying east of the river; and that at an ensuing
conversation between them, Grinnell stated that upon
99
consideration the City Company preferred to have the
point of connection at the bridge, and that if Mr. Bon-
ney’s company would see to the reconstruction of the
approach, the City Company would lay their tracks
thereon. Mr. Grinnell does not deny that Mr. Bonney
so called his attention to the ordinance of February 8,
1892. Grinnell denies that he stated to Bonney that the
City Company preferred to have the point of connection
at the bridge, or that if Mr. Bonney’s company would
see to the reconstruction of the approach, the City Com-
pany would lay the tracks thereon ; but he admits that
he did say to Bonney that “as good connection for the
transfer of passengers ” between the complainant compa-
nies and the City Company was at the bridge as else-
where. (Abst., 71.) But the trouble with this is, that
such a “connection of the tracks,” that the cars of the
appellants could run on to the tracks of appellee, was not
necessary “for the transfer of passengers.” A “good
connection for the transfer of passengers,” where the
passengers leave the cars of appellants and pass over to
the cars of appellee, if this means such a connection of
the tracks as appellee made, is an absurdity. The action
of appellee in making the connection of the tracks, with
the bridge shoes, so that the cars of appellants would
pass on to the tracks laid by appellee, corroborates Mr.
Bonney that the purpose was the passage of cars of
appellants on to these tracks on the east approach.
The explanation made by appellee's witnesses of this con-
nection of tracks, viz: that “the shoe placed in the two
south rails of the east-bound track was placed there with-
out any reference to the track on the bridge, and entirely
for the protection of the rails of the City Company placed
upon said west approach to said bridge at the edge thereof,
10()
and to facilitate the passing and repassing of wagons and
teams thereon. That if no shoe had been placed there,
loaded wagons and teams would have injured the track of
the City Company at said point, and possibly such wag-
ons and teams would also have been injured” (Abst.,
76), is absurd. If the court will look at the plat “Ex-
hibit B '' (Abst., 64-5), it will be seen that wagons pass-
ing over the bridge upon the south tracks of appellants
would not have touched the tracks laid by appellee prior
to their re-location. So that the re-location by appellee
of those tracks so as to conform to the tracks of appel-
lants could not have been done to protect the tracks of
appellants. And, so far as the two north tracks are con-
cermed, wagons and teams passing westwardly over the
tracks of appellee upon the approach would have injured,
not the tracks of appellee, but the tracks of appellants
upon the bridge, if any injury was done. So that the
appellants’ re-location of those tracks upon the approach
so as to conform with the tracks of appellants could not
have been to protect the tracks of appellee. The state-
ment of appellee’s witness, Hall, track-master of appellee,
that some city employes informed affiant that the city
was repairing the east approach of the 22d street bridge
and requested affiant to look after its tracks; and that
“ the city employe, or some person in charge of the work
then going on for the City of Chicago, informed affiant
that the approach was in bad order and decayed and
needed repair, '' is not in accordance with the preponderance
of the evidence. The testimony of Hart, bridgeforeman,
and inspector of bridges for the City of Chicago (the
employe who would give such notice to the appellee as
Hall testifies to, if anyone did), testifies that notice was
not sent to the appellee company by him that such re-
101
construction was to be made ; and the testimony of
Thomas, engineer of the appellants, is that he told Hall he
was the engineer of the General Company and that the
General Company was reconstructing the east approach
of the bridge; that the old rails of the City Company on
said east approach were in the way and that the General
Company desired that the City Company should remove
them ; that they were accordingly removed. (Abst., 82,
83.) It is plain, from the evidence, that appellee (whose
duty it was under its ordinance to contribute to the ex-
pense of this reconstruction of the east approach) knew
that-it was being done at the expense of appellants; and
that it was being done in accordance with Mr. Bonney’s
letter of July 31, 1894; and having the knowledge, the
appellee furnished the city with a plat showing the loca-
tion of the stringers on the east approach upon which its
tracks should be laid upon such reconstruction, and then
laid its track upon said east approach so as to make the
connection with the tracks of appellants; and that this
connection was made, nor for the transfer of passengers
from the cars of appellants to the cars of appellee at that
point, but in order that the cars of appellants might run
over the bridge on to the tracks so laid by appellee upon
the east approach. And it is plain that that connection
of tracks was made by appellee for this purpose
and not for the purpose of the wagon traffic which was
less at that time on account of the opening of another
bridge at Canal and 18th streets, near by, than it had
been before. (Abst., 84.)
All of this evidence is to be taken in connection with
the facts that appellee by accepting its ordinance of Feb-
ruary 25, 1887, as we have shown, assented to the exer-
cise by the city council of the power reserved by section
102
4 of chapter 66 of the Revised Statutes and by section 14
of article 2 of the constitution ; and that the ordinance of
February 8, 1892, granting the authority in question to
appellants in question herein was passed in pursuance of
that reserve power so assented to by appellee; and that
it was known to appellee that appellants had constructed
their road under that ordinance and were asserting the
authority thereby given to operate their cars to Grove
street. When so taken, the evidence in this case as to
the negotiations and dealings between appellants and ap-
pellee have a more direct and positive meaning and effect
as a recognition and assent by appellee, than if the rela-
tions of the parties under these ordinances and provisions
of law did not exist. And we submit that in view of all
these facts and considerations, it is clear that appellee
knew and recognized that appellants had the legal right
to operate their cars to Grove street, and assented
thereto; and induced the appellants to expend a large
amount of money in reconstructing the bridge and the
approaches, relying upon such recognition and assent on
the part of appellee. This makes the express contract,
and estops appellee from denying appellants’ right.
It makes no difference in this respect, that Mr. Grin-
nell for the City Company on November 15, 1894, after
such reconstruction had been made and appellants had
expended their money upon the faith of complainants’
assent to their right declared that “further negotiations
were useless ‘’; or that from that time appellee denied
appellants’ right. But such denial of right does afford
the complainants the occasion and right of appealing to a
court of equity.
Joy v. St. Louis, 138 U. S., 46.
1 Ü3
But no proof of express contract is required. Appellee
cannot stand by and suffer appellants to expend money on
this east approach as a part of appellants’ public work,
and then stop it by injunction until it is paid.
Griffin v. Augusta déc., Jºy., Co., 70 Ga.,
164.
And estoppel in paſs by inducing another to believe in
the existence of a state of things which defendant denies,
and to change his position by reason thereof, estops the
defendant from asserting his claim, and that the statute of
frauds has no application to defeat this rule.
II'll v. Blackwelder, 113 Ill., 283.
The defendant having stood by and seen the improve-
ments made at the expense of the complainants in the as-
sertion of their right and under the obvious expectation
that no obstacle would afterward be imposed in the way
of their enjoyment, they are now estopped to deny that
right.
Goodwin v. Cincinnat dº White Water
Canal Co., 18 Ohio St., 169.
Zabriskie V. Cleveland, Columbus, Cºn.
R. Co., 64 U. S., 381, ad fin.
Little Rock dé Wapoleon R. Co. v. L. R.
dº Miss. (6 Tew. R. Co., 36 Ark., 663 ;
see same case 4th Am. & Eng. R. R.
Cases, 392, where many other cases are
cited.
Rochdale Canal Co. v. Aſing, 16 Bear, 630,
633; 2 Beach. on Inj., Sec. 1356.
104
X.
THE APPELLANT'S HAVE MADE TO APPELLEE AMPLE COM-
PENSATION HEREIN.
The evidence shows that appellants expended in the re-
construction of the east approach to the bridge about
$1,041. (Abst., 64.) This reconstruction was necessary,
for the use of the bridge and approach, by the cars of
either of the parties and for the ordinary travel. (Abst.,
54.) Under appellee’s ordinance of February 25, 1887,
appellee would have been compelled to have met with the
greater part of this expense. (Abst., 29 ; Rec., 4.) The
entire expense incurred by the appellee in the construction
of its tracks between the bridge and Grove street, includ-
ing the value of rails and materials, was not to exceed
$625. (Abst., 64.) This expenditure by appellants was
of that amount of benefit to the appellee if it intended to
use its tracks upon the approach. And plainly, if it did
not intend to use them, then its rights thereon have
ceased.
Now, if appellants had not made this expense and it
was provided by law or by the ordinance of February 8,
1892, that appellants should make just compensation for
the use of its tracks in question, and the question of fix-
ing the compensation was before the court, the elements
of damage and measure of compensation would be the use
and wear of appellee’s tracks, without making it any com-
pensation for the diminution of its profits or the value of
its franchise. This was expressly held in Metropolitan
R. R. Co. v. Highland Street R. R. Co., 118 Mass., 290,
and Metropolitan R. R. v. Quincy R. R., 12 Allen, 262.
It will be borne in mind that we get no franchise or
105
right in the street from appellee. We get that under our
ordinance. That is granted to us by public authorities.
We have the right under our ordinance to be there and to
carry on our business along the street.
Plainly then, under all the circumstances in this case,
adequate compensation has been made. And the appellee
could claim no further compensation. Having the right,
and having adequately paid for it, our right should be
established and enforced.
XI.
THE WRONGS DONE AND THREATENED ARE SUCH As To
MAKE INJUNCTION THE PROPER REMEDY.
For a statement of the wrongs done and threatened a
reference to the abstract is sufficient. It will not be
necessary to dwell upon the details. They are not denied.
The act done is correctly described in the bill as an
organization of a mob, acting under the command of the
defendant’s superintendent, who resisted the authority of
the officer of the law, and who proceeded to create a riot
and to destroy a large and valuable car in the space of
fifteen minutes, before additional police force could arrive
by patrol wagons and stop them. This was distinctly a
riot, organized and directed by one private corporation
against the property of another, in the attempted assertion
of an exclusive right to make public use of 300 feet of the
public street occupied by a track which had been jointly
constructed by the two and in which the two had joint
rights of way.
There has never been the shadow of a doubt as to the
right of a state court to preserve the property within its
106
jurisdiction from such destruction at the suit of the owner
of the property, or to enforce the right of a quasi public
corporation to perform its public duties and enjoin inter-
ference therewith. (In re Debs, 158 U. S., 582, 600.)
All of the moral forces which have been invoked to sup-
port the exertion of the extraordinary powers of the court
of chancery in dealing with riots and railroad strikes in
the past, apply with a thousand fold force to the case of
the wanton destruction of property by one quasi public
company for the purpose of crippling another.
Without expanding the authorities thereon, we simply
submit the following propositions:
Equity affords a remedy by injunction to prevent irre-
parable injury which is threatened, without first estab-
lishing the right at law.
J/o/awk Bridge Co. v. Utica (6 Schenectady
Ry. Co., 6 Paige, 554.
Morris Canal Co. v. Central R. Co., 16
N. J. Eq., 482.
Ripon v. Iſobart, 3 M. & K., 6 Hare, 340.
Richmond v. Dubuque R. Co., 33 Ia., 482.
Great Western R. Co. v. Birming/lam Co.,
2 Phila., 597, 603.
Gould on Waters, Chap. XIII, Sec. 507,
513.
Attorney Gen!. v. Forbes, 2 Myl. & Cr.,
123.
In re Debs, 158 U. S., 582, 600.
The assertion in the answer of the right to do the thing
complained of is a sufficient threat.
Heat v. Gill, Law Rep., 7 Ch. , 699, 711.
Port of Mobile v. Louisville R. Co., 84
Ala., 115. -
107
Same case, 4 S. Rep., 106.
St. Louis, A. dº T. K. R. Co. v. Belleville,
20 Ill. Ap., 587.
Where the injury threatened is of a character which can
not be easily remedied, and there is no denial that the act
charged is contemplated, the injunction should be granted.”
United States v. Duluth, 7 Dill., 469.
X II.
APPELLANTS CAN MAINTAIN THIS BILL JOINTLY.
The grant, by the ordinance of February 8, 1892, was
to appellant, the Towns Company, its successors and as-
signs. (Abst., 19.) The appellant, the General Com-
pany, on April 3, 1893, acquired the lines of the Towns
Company, to be operated by the General Company, as
fully and completely as might have been done by the
Towns Company. (Abst., 4, 30.)
That lease is valid.
Act of February 12, 1854, R. S. Ill.,
1874, p. 807.
2 Starr & C. Stat., Chap. 114, Par. 43.
Chicago v. Evans, 24 Ill., 52.
There can be no question that the lessor and lessee can
join in this bill to establish and enforce a right of the
lessor covered by the lease.
But advantage must be taken of this point, if it were
tenable, by demurrer or upon the pleadings.
1 Danville Ch., Pr. & Pl., *302 & note.
108
This decree should be reversed. Appellants’ right
herein should be established and enforced by decree and
injunction. It should be held herein that appellee is not
entitled to further compensation under the circumstances
herein ; or, if held otherwise, then the case should be re-
manded with directions to the Circuit Court to ascertain
such compensation, and provide for the payment and for
the use by complainants of the right in question herein.
Respectfully submitted.
JOHN S. MILLER AND
MERRITT STARR,
For Appellants.
GAA"/"ZZZZ)
i
:
Ayx vyA /YA S7.
The heavy black lines show the Railways of the
Chicago General Railway Company,
(Successor to the West and South Towns Street Railway Company,)
— O N —
Twenty-second Street, Homan Avenue,
Twenty-fifth Street, Kedzie Avenue,
Lawndale Avenue, - Rockwell Street.









Term No. 3O4. Gen, No. 6026.
IN THE
APPELLATE COURT OF ILLINOIS.
FIRST DISTRICT,
OCTOBER TERM, A D. 1895.
Chicago General ‘Railway Company and
The West and South Towns Street
Railway Company, Appeal from
Appellants, \ Circuit Court,
(US. Cook County.
The Chicago City Railway Company,
Appellee.
ABSTRACT OF TRECORDe
PECK, MILLER & STARR,
SOLICITORS FOR APPELLANTS.
THE GUNTHoRP-WARREN PRINTING company, 53 DEARBORN ST., CHICAGO.
IN THE
Page of
Record.
1
Appellate Court of Illinois.
FIRST DISTRICT.
OCTOBER TERM, A D. 1895,
\
Chicago General Railway Company and
The West and South Towns Street |
Railway Company, Appeal from
Appellants, A. Circuit Court,
(U)S. º Cook County.
The Chicago City Railway Company,
Appellee.
ABSTRACT OF RECORD.
*s-
PLACITA to the Circuit Court of Cook County, May
term, 1895.
BILL OF COMPLAINT.
*-
STATE OF ILLINOIS,
COUNTY OF COOK.
IN THE CIRCUIT CourT FOR SAID County. IN CHANCERY,
TO MAY TERM, 1895.
Chicago General Railway Com-
pany and the West and South
Towns Street Railway Com-
pany, Pop Injunction, etc.
Q).
The Chicago City Railway Com-
pany.
BILL OF COMPLAINT. Complainants aver their incor-
porations, respectively.
2
44
That West and South Towns Horse Railway Company
(hereafter called Towns Company, for convenience), was
organized August 7, 1891, under the general incorpora-
tion act, and the horse and dummy act. That its object
was the construction and operation of a horse, electric,
cable and dummy railroad on all streets and alleys within
the present or future limits of the City of Chicago upon
which it might receive right of way from the city coun-
cil, and particularly for the construction and operation of
a street railway on 22d street from Lawndale on the west,
to Lake Michigan on the east.
That the name was duly changed to West and South
Towns Street Railway Company March 23, 1892.
Copy of certificate of incorporation and certificate of
change of name are attached and marked Exhibits “A”
and “B,” respectively.
The Chicago General Railway Company (hereafter called
the General Company, for convenience), was incorporated
October 21, 1893, under the general railway laws of Illi-
nois, to construct certain lines of railway, and acquire,
purchase, lease, maintain, and operate any railway or
railways, or portions thereof, which may exist or be con-
structed along the lines described in its articles, or any of
them, one of which was the said 22d street line.
A copy of its articles is attached, marked “Exhibit C.’’
That on February 8, 1892, the city council passed an ordi-
nance granting to the Towns Company, its successors and
assigns, permission to construct, maintain and operate a
street railway on 22d street from the east line of Grove
street to the west line of Johnson street, and to cross all
connecting, abutting and intersecting streets, avenues,
courts, alleys, places and highways, and also over certain
other streets not now in question.
3
Said ordinance further authorized that cars on said rail-
way may be operated by animal, cable, electric power or
compressed air or gas motor.
Said ordinance further provided that said company shall
have the right to connect its tracks with those of the Chi-
cago City Railway Company (the defendant herein, and
hereafter called the City Company for convenience) on
22d street at or near Grove street, but should have no
right to construct any tracks east of the Chicago river on
said street without the consent in writing of the City
Company.
It also provided that said company shall have a right
to operate its cars over tracks not owned by it upon such
terms, conditions of leases or contract as may be agreed
upon between the companies owning said tracks or other-
wise not in conflict with any of the conditions of said or-
dinance, or the general ordnances of said city; and pro-
vided,
That the fare upon the lines over which it may operate
shall not exceed 5 cents for one continuous ride for any
distance within the city limits.
Copy of said ordinance, with acceptance thereof, by the
Towns Company, and notice of completion of the neces-
sary five miles of track, dated November 19, 1892, is at-
tached marked “Exhibit D. ''
That on April 5, 1893, a further ordinance was passed
by the Chicago city council giving the Towns Company
authority to construct, maintain and operate a street rail-
way on certain other streets not now in question.
Copy with acceptance thereof attached marked “Ex-
hibit E. ''
That the construction and operation of the railway of
4.
5
#
said Towns Company was much delayed by certain ill-
founded and vexatious orders and writs of injunction.
That said injunctions were finally dissolved and about
June 24, 1893, said line of railway on 22d street was
put in actual operation with animal motive power. About
November 22, 1893, electric power was adopted.
That since about July 22, 1894, said line of railway
and its branches have been in full and continuous oper-
ation from the western terminals to Jefferson street, near
the south branch of the Chicago river, to the great ad-
vantage and convenience of more than 200,000 people of
the city residing or engaged in business along 22d street
and in its vicinity. -
That April 3, 1893, the General Company lawfully ac-
quired by lease from the Towns Company all its railways
including the line on 22d street, to be operated by the
General Company, as fully and completely as might have
been done by the Towns Company.
That thereupon the General Company entered into pos-
session of the same and ever since has been and still is en-
gaged in the actual operation of the same, in conformity
with the ordinances of the city and in full discharge of all
the duties and obligations imposed on said companies as
public carriers along said lines.
That the defendant, the City Company, is a corporation
organized under an act entitled an ‘‘ Act to Promote the
Construction of Horse Railways in the City of Chicago,”
approved February 14, 1859. -
That on February 25, 1887, the city council passed a
certain other ordinance granting the City Company au-
thority to construct, lay down. and operate and maintain a
double track street railway in the aforesaid 22d street,
6%
from the centre of State street to the south branch of the
Chicago river. *
By said ordinance it was provided that the cars of said
railway should be operated only by animal power, but
giving leave to adopt the cable system subject to all the
general ordinances of the City of Chicago then in force or
thereafter to be passed in reference to street railways.
Copy attached as “Exhibit F.”
Thereupon the said company constructed a double track
street railway along 22d street from the centre of State
street to the said south branch and put the same in opera-
tion by running a single car to and fro along said street
between said limits; but your orators charge that said
City Company has not in any wise fully or adequately
performed and discharged its duty to furnish proper
transportation to passengers who desire to travel along
said 22d street between said limits, but has only occupied
said street and operated said railway thereon so far as it
deemed necessary for the purpose of holding possession of
the same. .
Complainants state that there are great numbers of in-
habitants of that part of the City of Chicago through
which the lines of railway owned and operated by com-
plainants as aforesaid, are built, and which is supplied
with transportation facilities by your orators, who desired
and still desire in the course of their business to be carried
along said 22d street line of railway not only to said
Jefferson street and the south branch of the river, but
into the south division of the city lying east of the said
south branch and to said Grove street and to said State
street and easterhy thereof.
That complainants, in pursuance of the authority
6
granted by the ordinance in their behalf, and in their
efforts to discharge their public undertakings and duty
as public carriers through the territory through which
they had the right to operate as aforesaid, proceeded to
make such arrangements as would secure to the passen-
gers upon their said line the transportation eastward above
described. - *
That the bridge over said south branch of the Chicago
river and approaches thereto and sidewalks alongside
thereof, and the iron railway rails laid on the east ap-
proach of said bridge, were then in such a condition that
they would not support and bear the additional service
which would be required by the operation of the railway
cars of complainants over the same as proposed ; that it
was necessary to reconstruct and repair the same, which
was accordingly done as hereinafter stated.
That your orator about July 31, 1894, opened negotia-
tions with the City Company for the purpose of making
arrangements with it for the operation of complainants’
cars to Canal street and of a just division between said
City Company and complainants of the cost of construc-
tion and repair as such operation to Canal street might re-
quire; said Canal street connects with 22d street about
fifty feet east of Grove street, the terminal of your orator's
line.
The City Company received said application, to make
such arrangements without objection, and entered into the
negotiatiations therefore as desired by complainants; com-
plainants well hoped and believed that such negotia-
tions would be successfully prosecuted and result in an
agreement satisfactory to all parties and it was there-
upon clearly understood and agreed that the tracks of your
orators should be connected with the tracks of the City
7
Company at the point near said Grove street where the
east approach to said bridge connected with said bridge;
and that the expense of reconstructing said tracks and
making said connections east of said bridge should be
borne by said City Company; and in accordance with said
understanding and agreement complainants proceeded and
caused the necessary materials to be furnished, and the
necessary work to be done to reconstruct said east approach
to said bridge for the relaying of the tracks and the mak-
ing of such connection with complainants’ tracks.
That afterwards, about October 8, 1894, the negotiations
of such reconstruction and repairs had so far progressed
that the City of Chicage, having caused its engineer to ex-
amine and report thereon required your orators or one of
them, to deposit with said city on account of said reconstruc-
tion and repairs as aforesaid, $2,000, which was done and
accordingly deposited by the Towns Company ; thereupon
the substructure of said bridge and of both approaches
thereto were reconstructed and repaired by the employes
of the City of Chicago at the expense of the Towns Com-
pany, and the iron rails for the railway tracks for use of
complainants were laid on the west approach to said bridge
and upon and across said bridge by said complainants and
the same completed and in good order to the satifaction
of the city authorities; that in the course of said recon-
struction and in accordance with arrangements made be-
tween your orators and the City Company for that pur-
pose, the iron rails for the street railway tracks were laid
down from said Grove street to the south branch of the
river by or under the direction of the said City Company,
whereby the lines of the City Company were connected
with the east end of the bridge aforesaid. The planking
of said east approach between said iron rails and from
8
said rails to the curbing on each side of the street and re-
pairing and strengthening of the substructure of the
bridge was paid for by complainants, the Towns Company;
the City of Chicago thereupon rendered a bill to complain-
ants, the Towns Company, showing the total cost of the
work done in reconstructing said bridge and approaches to
have been $2,990, from which was deducted public bene-
fit amounting to $500, together with the $1,000 deposited
by the complainants, the Towns Company, leaving a bal-
ance due the City of Chicago of $490, which still stands
charged against the complainants, the Towns Company :
that the City Company had full notice and knowledge of
all the plans and purchases of complainants in respect to
all matters aforesaid, and entered into the same and co-
operated with complainant with respect thereto without
any substantial objection ; that the City Company con-
sented to and became a party to such reconstruction and
repairs; that complainants, relying upon such consent and
participation and upon the clearly implied agreement that
complainants should thereafter have the practical use and
benefit thereof for the operation of their railroad cars
over and along the iron rails so laid in said street over
said east approach, expended large sums of money in and
about such reconstruction and repairs and for divers other
matters connected there with and incidental thereto.
That the City Company by its consent to and its acqui-
esence and participation in said reconstruction and repair
became barred and precluded from any subsequent oppo-
sition thereto or interference with the rights of your ora-
tors under the same and became estopped to question the
right of complainants to operate their cars along said
street in accordance with the authority granted by said
ordinances to said complainants. That the natural result
9
and effect of the the extension of complainants's line to said
Grove street over and beyond said 22d street
bridge, according to the authority granted by
the city and the consent given by the City Company
would be to increase the number of passengers seeking
passage on the City Company’s line and would afford am-
ple compensation to the City Company for the use by
complainants of the rails laid by the City Company between
said points, and ample consideration for such consent, but
complainants do not admit any legal or equitable right of
compensation in the City Company for any use that might
be made of said tracks in 22d street by any other persons,
vehicles or carriages in passing along the same for as much
as the City Company has not nor can have under the con-
stitution and laws of this state and ordinances of said city
any exclusive right to said street or any part thereof, but
the same is and must at all times be free to the public,
subject to such regulations as the public authorities may
from time to time prescribe ; that the Constitution of Illi-
nois, by article XI and section 12 thereof provides :
‘‘ Railways heretofore constructed or that may be here-
after constructed in this state are hereby declared public
highways and shall be free to all persons for the transpor-
tation of persons and their property thereon under their
regulations as may be prescribed by law.”
That under this provision all railways must be free and
no exclusive right in any public street can be obtained by
any railway company; that such companies must conduct
their business in such a manner as not to seriously inter-
fere with or exclude the general public therefrom ; that
the General Assembly of Illinois has delegated to the City
of Chicago the power to regulate the use of streets; and
regulate the traffic thereon and to regulate the laying of
[()
railroad tracks therein ; that the said ordinances in favor
of complainants are such lawful regulations of the matters
aforesaid ; and complainants were duly authorized thereby
to connect their tracks with those of the City Company
and to operate their cars over the tracks laid down upon
said street as aforesaid between said limits without unnec-
essary interference with the cars of the City Company and
subject to limitation that no more than 5 cents shall be
charged for one continuous ride for any distance within
the city limits.
That about April 4, 1895, complainants, having given
notice of their intention so to do, undertook to run one of
their cars from said Jefferson street to said Grove street
along the tracks and across the said bridge and approaches
thereon, reconstructed as aforesaid at the expense of your
orators, and the defendants then and there had full notice
and knowledge that such undertaking would be made. Said
undertaking was made with a horse car drawn by a team of
horses.
The west approach to said 22d street bridge begins at
Jefferson street and extends easterly about 300 feet. Said
bridge extends easterly therefrom about 200 feet further,
and said easterly approach to said bridge extends from
said bridge to Grove street, a further distance of 300 feet,
making the total distance from Grove street of about 800
feet. The east line of Grove street (the terminal of your
orator’s line under said original ordinance) is about 3,400
feet west of State street, and complainants have in opera-
tion for the transportation of passengers to the said east-
ern terminus of their lines on 22d street about sixteen
miles of railway track.
That although public notice had been given by com-
plainants of their intention to run cars from said 22d
11
9%
street and along their right of way easterly therefrom,
and although it had full notice, knowledge and informa-
tion thereof, no notice or information of any objection
thereto on the part of the defendant City Company was
ever received by your orators or either of them prior to
the actual making of said undertaking and attempt, nor
except as hereinafter set forth.
That April 4, 1895, complainants took their car No.
306, with many guests and persons interested in said line
thereon, from their power plant at 30th street and Kedzie
avenue, Chicago, and ran the same by electric power
along the Kedzie avenue tracks to 22d street, and along
the 22d street tracks easterly to Jefferson street ; that at
Jefferson street said car was detached from the electric
motor and a team of horses was attached to the car.
Said car which then and there contained a number of pas-
sengers proceeded under the direction of W. F. Brennan,
complainants’ superintendent, easterly from Jefferson
street along 22d street upon the rails laid by complainants
as aforesaid across the western approach to said bridge and
across said bridge. When said car came upon said bridge
complainants’ superintendent and employes in charge of
said car perceived a large body of people east of said
bridge along said 22d street and immediately thereafter
discovered that said City Company, through M. K.
Bowen, its general superintendent, had organized a feudal
force of about 300 men for the purpose of preventing
complainants from carrying out their lawful and laudable
endeavor to extend their transportation of passengers
along 22d street as authorized by the city council. That
said City Company had obstructed 22d street by placing
upon the same and across the tracks thereof at Grove
street a car without any means of moving the same, and
I 2
I ()
and also by placing thereon two wagons loaded each with
about two tons of iron, and to render the removal of said
wagons difficult and impracticable, had removed one
wheel from each of the wagons and taken away therefrom
the horses which had drawn the same to the said places.
Said City Company had also placed upon said streets
three wrecking wagons, each provided with crews of men
and with axes, crowbars, hoisting jacks, sledge hammers,
cables, grappling hooks and other instruments of obstruc-
tion and destruction.
While complainants’ car 306 was still upon the bridge
said Bowen came to the center of the street in front of
the car and commanded the driver to stop, which was
done, and Brennan, complainants’ superintendent, in-
quired if Bowen were an officer of the law or had any
legal process forbidding the running of said car, and
Bowen admitted that he was not such an officer and had
no such legal process.
Whereupon said car was again started forward, and
while it was still more than a hundred feet west of the east
line of Grove street, and clearly within the limits within
..which complainants had been expressly authorized by the
city council to operate its cars, the City Company, by
Bowen, its superintendent, willfully and maliciously, and
without any warrant or authority, ordered and caused the
City Company’s forces aforesaid to give battle against
your orators and their car, and employes in charge
thereof.
Whereupon about forty of the City Company’s employes
under Bowen's directions, with force and arms violently
attacked the car and persons in charge thereof, and wan-
tonly, maliciously, violently and with excessive force,
13
10%
overthrew the car, and by means of said wrecking wagons
and instruments of obstruction and destruction attacked,
tore in pieces, broke up and totally destroyed the car, and
broke the wheels thereof with sledge hammers, and other-
wise vented upon complainants and their car great and
riotous malice and disorder in said destruction.
And while destroying the car as aforesaid, the City Com-
pany, by Bowen, its superintendent, repeatedly threatened
that it would in like manner break up and destroy all
other cars which complainants might at any future time
or times attempt to run or operate upon complainants’ ter-
minals east of said bridge.
Complainants are operating cars upon their lines of rail-
way at said bridge at intervals of about eight minutes, and
many thousands of persons are transported from it along
said lines of railway, many of whom desire to be trans-
ported over said bridge and along said 22d street.
Complainants show that the said obstruction of said
street, and the destruction of said car were not a mere
trespass for which an action of damages alone would afford
a substantial or adequate remedy, but were a serious ob-
struction of complainants' business, and if continued and
repeated as threatened and intended by the City Company
would inflict an irreparable wrong upon your orators by
destroying their property, and by depriving them of the
gains therefrom, which cannot be definitely ascertained.
And if your orators should continue the business for
which they have been incorporated, and should run their
cars to said Grove street, as they are lawfully authorized
to do, the City Railway Company would carry into effect
its threats and destroy any and all other cars of your
orators which would run upon said eastern approach of
14
11
said bridge to said Grove street, and all the cars of your
orators would in like manner be destroyed, giving rise to
a great multiplicity of suits in which complainants could
obtain no substantial or adequate redress, and the opera-
tion of your orators’ railway, both as to said short line of
track east of the bridge, and as to the sixteen miles west
of the bridge, would be paralyzed by such destruction, and
the franchises, licenses and privileges of your orators be
put in great peril, and your orators irreparably injured
and damaged.
That the acts of the City Company in refusing to resort
to the courts of justice for a remedy for any supposed
wrongs or injuries which it might fear from complainants;
and in organizing a private armed force for the destruction
of your orators’ property and obstruction of their lawful
business; and in waging war against your orators,
their property and employes; has been guilty of a great
and Scandalous abuse of its corporate powers and incurred
forfeiture of the same which ought to be tried and ad-
judged against them at the instance of the public
authorities.
Said City Company has constructed about 380 miles of
railway tracks within the city streets and employs several
thousand persons in the maintenance and operation thereof,
and has the physical power and means in its hands, if per-
mitted to use the same, of opposing and preventing by
force any attempt to operate other lines of railway in the
streets.
Complainants show that they have the right under said
ordinances to use electric power to said Grove street, and
have obtained a permit from the city to the complainant,
the General Company, to erect poles and wires in 22d
15
1.1%
street, between Jefferson and Grove streets; but com-
plainants fear that unless prevented by injunction the City
Company would prevent the erection thereof when at-
tempted by complainants, and would with force and arms
prevent and break up and destroy the same, as in the afore-
said instance.
Wherefore complainants pray that the City Company
may be made defendant and required to answer, but not
under oath, which is waived ; that complainants’ cause
may be heard and tried with all convenient speed, and
that upon the hearing thereof it may be decreed that com-
plainants have a full and perfect right to operate their
ears along said tracks in 22d street from Jefferson street
to Grove street, without interference, prevention, hin-
drance or obstruction by the defendant, its officers,
employes or confederates, and that the proper temporary
order and writ of injunction may issue meanwhile enjoin-
ing the City Company, its officers, agents, employes and
confederates to desist and refrain from all and any inter-
ference with such operation and from all injury to your
orators or either of them, and their cars and equipment,
and their officers, agents, employes and servants in the
operation of their cars over said tracks between Jefferson
street and Grove street, and to refrain from any interfer-
ence with or injury to or destruction of any of the cars or
equipment of your orators while in use along said tracks
between the streets.
That upon the hearing the injunction may be made per-
petual.
That in case it be hereafter discovered that any other
persons are necessary parties or any other facts or allega-
tions ought to be shown, complainants may without
16
12
13
14
prejudice have leave to make a proper amendment or
supplement hereto.

And for other and fuller relief _2^ e.
Prayer for injunction.
Attestation. Verification of the bill April 13, 1895, by
Lawton C. Bonney, secretary of General Company and
Towns Company.
ExHIBIT A.
STATE OF ILLINOIs,
Y N S
COUNTY OF COOK.
Know all men by these presents, that the undersigned
persons propose to form a corporation for pecuniary profit
under the general laws of this state and for such purpose
make the following statements: The name of the proposed
corporation shall be “The West and South Towns Horse
Railway Company.” Its object, the construction and
operation of a horse, electric, cable and dummy railroad
on any or all such streets and alleys within the present or
future limits of the city of Chicago as may be granted to
it by the city council of said city, and particularly for the
construction of a horse railway on 22d street from Lawn-
dale avenue to Lake Michigan. Capital stock $100,000.
Shares, 1,000 of $100 each. Principal office, Chicago.
Duration, 90 years. Dated August 7, 1891. Signed,
C. L. Bonney, M. A. Bonney, L. C. Bonney.
ExHIBIT B.
I, Lawton C. Bonney, vice-president of the West &
South Towns Horse Railway Company, do hereby certify
that at a meeting of the stockholders of said company, the
17
entire capital stock of said company being represented in
person or by proxy, it was unanimously voted to increase
the capital stock of said company from $100,000 to $500,-
000, and to change the name of said company from “West
& South Town Horse Railway Company ” to “West &
South Towns Street Railway Company,” and to increase
the number of directors from five to seven.
(Signed) LAwTON C. BONNEY,
Vice-President.
Attest: H. L. BURNETT, Secretary.
15
ExHIBIT C.
ARTICLES OF INCORPORATION OF THE CHICAGO GENERAI,
RAILWAY CO.
First. The name of this corporation shall be “ Chicago
General Railway Company.” Second. Its purpose to
construct a railway from a point at or near the intersection
of 22d street and Lake Michigan to the Village of River-
side with a branch to Lemont, and with another branch
to the City of Evanston, and another branch to Blue
Island, and another branch to the Village of Maywood,
and another branch to the Village of Norwood Park, and
from such point or points to such other point or points in
said City of Chicago as may be determined upon
by said company, and from such points in said
City of Chicago as may be determined upon by
said company, to Evanston, Blue Island, Maywood
and Norwood Park; to acquire, purchase, lease, main-
tain and operate any railway or railways or portions
thereof which may exist or be constructed upon or along
the lines aforesaid, as said company may determine law-
fully. Third. Principal business office shall be estab-
IS
lished in Chicago. Fourth. Time of commencement of
this corporation shall be October 24, 1893, continuing in
force 50 years. Fifth. Capital stock, $10,000,000.
Sixth. Names and places of residence of several persons
forming this corporation: Joseph P. Mahoney, Lyman
M. Paine, Lawrence E. McGann, Lawton C. Bonney, C.
L. Bonney, Chicago. Seventh. First board of directors,
Lawrence E. McGann, John A. King, Roger C. Sullivan,
Joseph P. Mahoney, Charles L. Bonney, Earle F. Holmes,
Lawton C. Bonney. The government of this corporation
shall be vested in its board of directors, president, vice-
president, secretary, treasurer and such other officers and
15%
persons as may be determined upon and prescribed by the
by-laws of said corporation. Eighth. Capital stock
100,000 shares, $100 each. Signed October 21, 1893.
LYMAN M. PAINE,
JOSEPH P. MAHONEY,
C. L. BONNEY,
LAWTON C. BONEEY,
L. E. McGANN.
Certificate of William H. Hinrichsen, secretary of
state, to the effect that the foregoing articles of incorpo-
ration were duly recorded in book 11 of railroad records'
page 435.
Filed for record in the office of the secretary of state,
October 23, 1893, 9 o'clock A. M.
Filed for record in Cook County, October 24, 1893, 1
o'clock P. M., and recorded in book 2 of railroad records,
page 526. SAMUEL B. CHASE, Recorder.
19
16
ExHIBIT I).
Streets named—grant 20 years.
SECTION 1. In consideration of the acceptance hereof
and the undertaking of the West & South Towns Horse
Railway Company to comply with the provisions herein
contained, consent is given to said company, its successors
and assigns, to construct a single or double track street
railway, with all necessary and convenient turn-outs, turn-
tables, side-tracks, etc., on certain portions of certain
streets, lots, blocks or ground in Chicago, including the
right to cross the connecting, abutting or intersectingstreets
and public highways, as follows: Upon that portion of 22d
street between the east line of Grove street and the west
line of Johnson street, between the west line of May
street and the west line of Crawford avenue; upon that
portion of Lawndale avenue between the north line of
West 22d street and the south line of 35th street ; also
connecting the road terminating at the west line of John-
son street with the road beginning at the west line of May
street, said connection to be made within 350 feet north
or south of the central line of said 22d street. Said com-
pany may construct, maintain and operate its railways
upon the terms and conditions mentioned.in this ordinance
for the period of twenty years from the passage hereof,
and no longer ; provided said company will refund to the
owners of property abutting on 22d street between Union
and Halsted streets, the cost of improving the sixteen feet
in the center of said part of 22d street.
SEC. 2. Tracks not to be elevated above the surface of
the street and shall be laid with modern improved rails
and in such a manner that carriages and other vehicles can
20
easily and freely cross the same at all points without ob-
struction ; shall be laid as near the centre of the street as
practicable. Section 1509 of the Municipal Code of
Chicago of 1881 shall not apply, but the rails to be used
shall be satisfactory to the mayor and commissioner of
public works and shall be laid under their direction.
SEC. 3. Cars to be used may be operated by animal,
or cable, electric, compressed air or gas motor ; provided
overhead wires are used, the main electrical feeders shall
be placed underground, and connections to the trolley
wires shall be made through hollow iron pipes. Said com-
pany may make all needful curves, trenches, excavations
and sewer connections, etc., in said street. Cables and
machinery shall be underground and constructed in a sub-
stantial and workmanlike manner, satisfactory to the com-
missioner of public works, so as not to interfere with the
public travel ; provided, that if in the construction of said
trenches, etc., any damage or injury shall result to any of
the sewers, water pipes or private drains, said company
shall be held liable to pay therefor. If at any time, by
reason of the permission hereby granted, any injury or
damage shall result to any person or property, then said
company shall be liable therefor. All needful and con-
venient connections with the motive power or engines shall
be subject to the same restrictions. The aperture opening
into said trenches shall not exceed five-eights of an inch in
width. In case said road shall be operated by cable or
other mechanical power, said company may operate not
exceeding three cars and one grip-car attached together,
with a gripman in charge of the grip-car and one conductor
in charge of each additional car; provided, until the lines
of railway can be constructed and kept in repair without
actual loss, said company may operate the same with cars
2 |
17
drawn by a single horse and under control of the driver of
said car ; provided, that at any time after the expiration
of five years said company shall, upon the order of the
mayor and commissioner of public works, operate said line
on 22d street with such additional modern, improved and
new cars as the increased amount of traffic demands.
SEC. 4. Said company shall keep eight feet in width
where single track shall be laid, and sixteen feet where
double track shall be laid in said street, in good condition
and repair as long as said privilege continues ; and where
new improvements shall be ordered by the city council,
said street railway shall make such new improvements for
a width of eight feet where a single track is laid, and
sixteen feet where double track is laid, and if the same is
not done, it may be done by the city, and the company
shall be liable to the city for the cost thereof.
SEC. 5. At the expiration of the right of said railway
company it shall remove its tracks and put the said parts
of the said street from which said tracks shall be removed
in as good condition as the adjacent parts thereof.
SEC. 6. Said company shall pay all damages to the
owners of property abutting on said street over which its
road may be constructed.
SEC.
annual license fee for each and every car used by said
7. Said company shall pay to the city $50 as an
company, in the manner following: In computing the
number of cars upon which said license may be imposed,
thirteen round trips when the car is used in the transpor-
tation of passengers shall be taken as equivalent to one
day’s use of same ; one-thirteenth of such round trips dur-
ing each quarter shall be divided by the number of days
in such quarter. Such portion shall be the number of cars
subject to such license fees; provided, however, that such
22
3.
cars shall not already be liable for the payment of a
license fee on one of the other lines of this company. The
president or other officer of said company shall report
quarter-yearly the whole number of cars it ran, and pay to
the comptroller $12.50 for each car.
SEC. 8. The rights, privileges and franchises herein
conferred are granted upon further condition that on or
after December 1, 1895, said company shall pay into the
the city treasury of Chicago, annually, for each lineal mile
of their road, $500, due and payable on the 1st day of De-
cember of each year; the first payment to be made on the
1st day of December, 1896.
SEC. 9. Cars, during November, December, January,
February and March, shall be provided with heating ap-
paratus, which shall be reasonably effective in raising the
temperature in said cars and heating the same, and shall
be operated as the need of the weather and degree of tem-
perature shall require. There shall be operated a suffi-
cient number of cars to be run upon such schedule time
as will reasonably and properly accommodate the necessi.
ties of the public.
SEC. 10. Said company shall forever indemnify the
City of Chicago against all legal damages, judgments, etc.,
which may be recovered against said city by reason of
the granting of such privileges or of the exercise of said
company of the privileges hereby granted.
SEC. 11. Said company shall execute to the City of
Chicago, bond in the penal sum of $25,000, to be ap-
proved by the mayor, conditioned for the faithful observ-
ance of the provisions of this ordinance.
SEC. 12. The franchises granted by this ordinance, ex-
cept as herein specifically provided, are granted subject to
general ordinances of the City of Chicago concerning
23
horse railroads now in force or which may hereafter be
passed by said city under its police power.
SEC. 13. Said company shall have the right to connect
its tracks with those of the Chicago City Railway Com-
pany on 22d street at or near Grove street, but shall have
no right to construct any tracks east of the Chicago river
on said street without the consent, in writing, of said Chi-
cago City Railway Company. Said company shall also
have the right to operate its cars upon tracks not owned
by it, upon such terms and conditions as may be agreed
upon between the companies owning such respective
tracks, or otherwise not in conflict with any of the con-
ditions of this ordinance or the general ordinances of the
city, provided the rate of fare to be charged shall not ex-
ceed 5 cents for one continuous ride for any distance
within the present or future city limits.
SEC. 14. Said company shall commence work as early
in the spring of 1892 as circumstances will permit, and not
less than five miles of the tracks shall be laid on or before
December 1, 1892, and if not done, the rights and privi-
leges hereby granted shall cease and determine. Pro-
vided, if the said company,shall be restrained or prevented
from proceeding with the work by the order or writ of any
court of competent jurisdiction, the time of said delay
shall be added to the time herein prescribed. The city
shall, however, have the right to intervene in any suit for
an injunction to restrain said company as aforesaid and
move for a dissolution of the same, in case such suit be
deemed collusive or for the purpose of delay, or of ex-
tending the time for the completion of said tracks.
Sec. 15. Ordinance shall take effect from and after its
passage and approval by the mayor and the filing with the
city clerk of a bond and acceptance as herein prescribed.
24
18
18%
Provided, however, if said acceptance and bond shall not
be filed as aforesaid within ninety days of the passage
hereof, then the rights and privileges herein granted to
said company shall be void and of no effect.
Letter, February 19, 1892, to the Hon. City Council
of the City of Chicago, from C. L. Bonney, president,
accepting the foregoing ordinance permitting the construc-
tion of a street railway on West 22d street and Lawndale
8,VéIn UlO.
Letter dated November 19, 1892, to the Hon. Mayor
and Aldermen of the City of Chicago from C. L. Bonney,
president, notifying them of the construction of five
miles and 544 feet of track on 22d street and Lawndale
8, VeL) Ule.
ExHIBIT E.
The following is the ordinance as passed :
Whereas, the City of Chicago, by an ordinance passed
February 8, 1892, granted to the West and South Towns
Horse Railway Company authority to construct a street
railway on certain portions of 22d street and Lawndale
avenue;
Whereas, on March 21, 1892, said company changed
its name to West and South Towns Street Railway Com-
pany ; -
Whereas, said company caused a notice to be published
that on September 1, 1891, said company would present
its petition to the corporate authorities of the City of Chi-
cago for consent to locate, etc., a certain railroad on 22d
street, beginning at Portland avenue and extending to
Crawford avenue ; on Lawndale avenue beginning on 22d
street and extending to 25th street; which said notice was
25
19
duly published in two newspapers; that, accordingly, at
said time and place said company presented to the city
council its petition for authority substantially as proposed
in said notice, which said petition was referred by said coun-
cil to the committee on streets and alleys for the west (li-
vision of said city ; that on or about October 19, 1891, the
petition of owners of property fronting on the line of said
proposed railway was presented to said city council to-
gether with a draft of an ordinance granting the author-
ity prayed for in said petition ; that on or about December
7, 1891, the commissioner of public works made his re-
port to the committee on streets and alleys for the west
division, showing that from the east line of Grove street
the owners of the land representing more than one-half
the frontage of each mile and fraction of a mile or so much
of the street which was sought to be used for railway pur-
poses, had petitioned that said company be granted the
right to use said portion of said street as was mentioned
in said report ; that on or about December 21, 1891, a
further petition of property owners for the construction
of said railway was presented to the city council, praying
the passage of the ordinance granting authority to the said
company, which said last named petitition was referred to
the commissioner of public works for verification, and
duly referred to said committee on streets and alleys for
the west division ; that on or about January 18, 1892,
said committee on streets and alleys for the west division
held a formal and open hearing on the matter at which
full opportunity was given to all persons who might be
concerned therein, to make objections; and no objection
being made, and it appearing to said committee that the
owners of land representing more than one-half of the
frontage of each mile and fraction of a mile, said commit-
26
tee decided to place on file the proposed ordinance, and to
adopt and recommend to the city council for passage a
substitute therefor in conformity to the report of the com-
missioner of public works. It was done. Said report and
proposed ordinance were ordered published and action
thereon deferred pursuant to law, which was done ;
that on or about February 1, 1892, a third petition of
property owners for the construction of said railway was
presented at a meeting of said council, and duly referred
to said committee on streets and alleys for the west
division ; that on or about February 8, 1892, said report
and ordinance were brought before said council for its
action thereon, and no objection having been filed to said
ordinance, and it appearing that the owners of the land
19%
representing more than one-half of the frontage on each
mile and fraction of a mile had petitioned for the passage
thereof; thereupon said council, on motion, concurred in
said report, and on a unanimous vote passed said ordi-
nance, and the same not having been vetoed by the mayor,
became valid and effective by the lapse of time ; that on
or about February 25, 1892, said company having previ-
ously filed in the office of the clerk its formal acceptance
of the ordinance aforesaid, the same was duly presented
by said clerk to the city council and placed on file.
That on or about April 8, 1892, this respondent duly
filed a bond required by said ordinance, the same having
been approved by the mayor; that on or about April 28,
1892, a permit for the construction of said railway was
duly issued authorizing this respondent to construct its
said railway under said ordinance.
Now, therefore, be it ordained by the City Council of the
City of Chicago:
SECTION 1. Upon petitions of owners of land repre-
27
senting more than one-half the frontage in each mile and
fraction of a mile, to be used for railway purposes ; and
in consideration of the acceptance hereof, and the under-
taking of the West and South Towns Street Railway
Company to comply with the provisions of this ordinance,
said company is hereby given authority to construct, etc.,
a single or double track railway, etc., along the streets
mentioned, as follows: •
On West 25th street beginning at the west line of
Lawndale avenue, and extending to the east line of Rock-
well street; on Rockwell street, commencing at the south
line of 26th street, and extending to the north line of
19th street; on Kedzie avenue, commencing at the north
line of 22d street, and extending to the south line of 31st
street; on Homan avenue, from the north line of 22d
street to the south line of 23d street. The privileges hereby
granted shall be deemed an extension of the railroad other-
wise to be constructed by said company on West 22d street
from Grove street to Crawford avenue, and on Lawndale
avenue from 22d to 35th streets. And the provisions of
said ordinance of February 8, 1892, shall extend to and
apply to the streets herein named, and the same shall be
subject to the further conditions herein contained ; that
whenever said company shall desire to condemn any prop-
erty as provided for in the laws of the State of Illinois,
said company may connect the property so acquired by
condemnation, purchase or otherwise, with the lines herein
mentioned, and for such purposes said company may cross
any connecting, abutting or intersecting streets and public
highways.
SEC. 2. Said company shall not be allowed to charge
to exceed 5 cents on the lines herein authorized, and per-
sons paying 5 cents on either of the other lines of said
2S
20
company shall be entitled to a transfer ticket on any
of the lines herein authorized without additional cost.
The cars run on said line shall pay an annual license fee
of $50 for each car, to be computed as provided in said
ordinance of February 8, 1892. Said track shall be laid
as soon as the underground work in said street is com-
pleted ; and if said streets are paved, the original improve-
ment to be paid for by assessment on the property abut-
ting thereon, and all subsequent improvement to be paid
for by said company as provided for in said ordinance of
February 8, 1892, except that section 8 of the same shall
not apply to the railroad herein mentioned; but the rails
to be used shall be subject to the approval of the commis–
sioner of public works.
SEC. 3. Ordinance to be accepted by the company
within ninety days after its passage and approval; shall
take effect from and after its passage; additional bond of
$10,000.
Letter dated April 6, 1893, from C. L. Bonney, presi-
dent, to the honorable mayor and aldermen of the City of
Chicago, accepting the foregoing ordinance.
ExHIBIT F.
An ordinance authorizing the extension of the street
railway in the south division of the City of Chicago.
Be it Ordained by the City Council of the City of
Chicago: *
SEC. 1. That in consideration of the acceptance hereof,
and the undertaking by the Chicago City Railway Company
to comply with the provisions of this ordinance, authority is
hereby granted to the same to construct; etc., a double
track street railway upon the several streets hereinafter
29
mentioned ; on 22d street, from the center of State street
to the south branch of the chicago river. * * *
SEC. 2. The various tracks herein named shall be
built within two years after the passage of this ordinance;
provided, that should the construction be delayed by in-
junction the time so lost shall be added as herein specified ;
and provided that should a portion of any of the said line
be not completed within the time specified that the right
herein granted shall be forfeited only on the unbuilt por-
tion thereof.
SEC. 3. The cars of the said railway shall be oper-
ated only by animal power, except that it shall be lawful
for the said company, at any time within the term of this
ordinance, to adopt its so-called cable system on any or all
the lines herein named, the same to be constructed and
operated subject to the conditions of the ordinance of Jan-
uary 17, 1881, authorizing the Chicago City Railway
Company to operate its cars by other than animal power.
SEC. 4. The said company shall fill, grade, pave and
keep in repair sixteen feet in the center of said streets so
occupied in the manner provided by section 2 of the ordi-
nance, of July 30, 1883, relating to street railways. The
right to use granite blocks in the paving of its line on the
streets herein named is hereby expressly granted to said
company. 3,
SEC. 5. The rate of fare shall not exceed five cents for
any distance between Madison street and the terminus of
said line, and passengers on 22d, 26th and 35th street, con-
necting lines, shall be transferred either way, to or from any
of the north or south lines of said company which they may
cross without additional fare. ty
SEC. 6. As to licenses, the said company shall conform
to section 1 of the ordinance of July 30, 1883, relating to
street railways.
30
24
26
28
29
SEC. 7. The grant herein given shall extend for the
term of twenty years, provided the same shall be accepted
by said company within thirty days after its passage.
SEC. 8. The privileges hereby granted are subject to
all the general ordinances of the City of Chicago now in
force or hereafter to be passed, referring to horse railways,
and to all ordinanes affecting the limes of railway of which
the line hereby authorized is an eaſtension.
Summons.
Notice of motion for a preliminary injunction.
ANSWER OF THE CHICAGO CITY RAILWAY COMPANY.
The defendant, the said company, says that it admits
that the complainants are corporations organized under
the laws of Illinois, as in said bill alleged ; that the ordi-
nance of February 8, 1892, Exhibit D of the bill, and of
April 5, 1893, Exhibit E of the bill, were duly passed and
are as set forth in said bill ; admits that the General Com-
pany, on April 3, 1894, acquired by lease from said Towns
Company, all of said railways of said Towns Company :
that it entered into possession and operation of the same,
as alleged in said bill, and ever since has been and still is,
engaged in the operation thereof; and that since about
July 22, 1894, the lines of said railways in said 22d street
west of said bridge, and certain branches thereof have been
operated by the General Company.
Defendant admits its own incorporation and the passage
of said ordinance, Exhibit F to the bill, and that it runs
a double-track street railway in 22d street, from the cen-
ter of State street to the bridge, as alleged in the bill.
Denies that it has not fully and adequately performed
31
30
31
its duty in operating said railroad and affording transpor-
tation between said points. Denies that it has only occu-
pied the street and operated the railroad thereon so far as
necessary in holding possession.
Avers that it has always maintained a full and adequate
service upon said line as the proper accommodation of
passengers in the use of the same justified or required.
Denies that it was ever understood or agreed between
the defendant and the complainants that the tracks of the
complainants should be connected with the tracks of this
defendant at any point near Grove street, where the east
approach to the bridge connected with the bridge, or at
any point whatsoever.
Denies that it was ever understood or agreed between
the parties that the expense of reconstructing the tracks
on the east approach should be borne by this defendant, as
alleged.
Denies that the complainants have (in accordance with
any understanding or agreement with this defendant) pro-
ceeded or caused the necessary materials to be furnished
and work done to reconstruct the east approach to said
bridge for the relaying of tracks and making the connec-
tion.
Denies that it ever had any understanding or agreement
with complainants or either of them for the connection of
the tracks of either of them, with the tracks of defendant.
Denies that it ever had any understanding or agreement
with complainants in relation to any reconstruction of any
kind whatsoever.
Denies that any work was ever done in 22d street by
the complainants, or either of them, in pursuance of any
agreement between the complainants, or either of them,
and the defendant.
32
32
Denies that it had any notice or knowledge of the affairs
or purposes of complainants in respect to the improve-
ments of the tracks in 22d street, east of the bridge, until
the filing of the bill.
Denies that it ever co-operated with the complainants,
or either of them, in respsct to said plans or purposes.
Denies that there was ever any agreement, expressed or
implied, that the complainants should have the right to
operate their cars along the tracks on any part of 22d
street east of the bridge.
Denies that it ever consented or participated in the re-
construction and repair of the tracks or abutments or
superstructure east of the bridge by complainants.
Denies that it is estopped in the manner alleged in the
bill.
Denies that the effect of the extension and operation of
complainants’ line beyond the bridge to Grove street would
be the increase in number of passengers seeking passage
on defendant’s lines to such an extent as would afford com-
pensation to defendant for the use by complainants of its
tracks on the approach, even if complainants had the right
to any use thereof, which defendant denies.
º . . g
Denies that complainants have any rights under the
constitution, as alleged in the bill. ---
Denies that complainants are authorized by the ordi-
nances to connect said tracks without the consent in writ-
ing of defendant.
Denies that it has given any consent.
This defendant admits that it has refused to permit
complainants to run any cars over the tracks in 22d street
east of the bridge and that it has by force prevented such
use of its tracks by the complainants:
33
33
34
35
And alleges that it has the lawful right to keep posses-
sion of the tracks and prevent the use thereof by com-
plainants by the use of such force as may be necessary
to accomplish that end.
Avers that since the making of the lease by the Towns
Company, April 3, 1894, it has not been engaged in the
operation of any railway or run any cars and is not in pos-
session of or entitled to possession of any tracks and has
no occasion or interest for using any tracks, nor any joint
ground for uniting the tracks owned by it with the tracks
of the defendant.
Denies that any rights or privileges granted to the
Towns Company by section 13 of the ordinance of Febru-
ary 8, 1892, “Exhibit D, '' has been transferred to the
other complainant, the General Company.
Denies the validity of the lease, for the reason that any
right or rights attempted to be conferred by said ordin-
ance were not capable of transfer.
And denies that the complainant, the General Company,
has acquired any rights whatever under section 13 of
‘ Exhibit D.'”
A vers that the contract and agreement between the com-
plainants and the defendant averred in the bill, touching
the said tracks in 22d street is within the bar of the Stat-
ute of Frauds and that the defendant has never made the
promise in writing or given any memorandum thereof.
Denies that the complainants are entitled to any relief.
Signature and verification, May 9, 1895, by George H.
Wheeler, president of the Chicago City Railway Com-
pany. *
General replication of complainants, filed May 14,
1 S95.
34
40
43
44
45
Notice of motion to read the affidavit of John P. Hart
at the hearing of the motion for injunction herein.
Notice of motion for temporary injunction with affidavit
of Pierre Beach to the effect that he served Julius S.
Grinnell with said notice by leaving a copy with him, to-
gether with copies of said motion, affidavits and replica-
tion mentioned in said notice.
Copy of replication.
Copy of affidavit of Henry J. Alberg who states that
he is engaged in business with the Pennsylvania Coal
Company, and has been engaged in said business for three
years last past.
That he knows the facts concerning the traffic in wagons
over said bridge on 22d street over the south branch of
the Chicago river, and that about a year ago a bridge was
opened to traffic over said branch of the Chicago river at
Canal and 18th streets, and that early last summer the
bridge on Halsted street over said river, and few blocks
south and west of the bridge on 22d street was opened to
traffic.
That since the 1st day of November last the wagon
traffic over said bridge on 22d street has not been so great
as it was previously thereto and before the opening of the
bridge at Canal and 18th streets and the Halsted street
bridge aforesaid.
Subscribed and sworn to May 27, 1895.
Copy of affidavit of John P. Hart.
States that he is a resident of Chicago; is a bridge
foreman and inspector of bridges; that he is now in the
employ of the City of Chicago in said capacity, and has
been for over four years last past. That during the period
35
46
47
4)
of four years prior to October, 1894, whenever the east
approach to the 22d street bridge over the south branch
of the Chicago river was out of repair, he sent notices to
J. E. Roehm held, engineer in charge of bridges for the
City of Chicago, and also to George H. Wheeler, presi-
dent of the Chicago City Railway Company; that during
that period the Chicago City Railway Company at one
time, and at one time only, made repairs of said east
approach to the 22d street bridge after such notification ;
that at all other times said repairs were made under the
supervision of this affiant and according to his direction.
States that when the east approach to said 22d street
bridge was reconstructed, October and November, 1894,
notice was not sent to the Chicago City Railway Com-
pany by him that said reconstruction was to be done.
Subscribed and sworn to May 25, 1895.
Copy of motion for a temporary injunction, in accord-
ance with the prayer contained in the bill of complaint in
said cause.
Motion for temporary injunction according to the
prayer therefor contained in the bill of complaint in this
Głl Ul S6).
Stipulation between the parties herein that this case be
set for final hearing July 18, 1895; that the affidavits filed
herein stand as depositions, with leave to either party to
recall any witness for examination or cross-examination,
or to take the testimony of any additional witnesses
within the time herein specified ; complainants to close
proof by June 8, 1895, defendant by June 12, 1895:
complainants in rebuttal by June 14, 1895.
Order of court entered May 28, 1895, in accordance
with the terms and provisions of said stipulation.
36
534
56
61
62
Further ordered that said stipulation be spread of
record.
Order of court dismissing said bill of complaint for
want of equity at the cost of complainants; appeal prayed
and allowed to the Appellate Court of Illinois for the
First District; bond fixed in the penal sum of $500 with
surety to be approved by the court on or before the
5th day of October, A. D., 1895. Time granted
complainants until the 5th day of October, 1895,
inclusive, in which to submit and file a certificate of
evidence.
Stipulation that the original certificate of evidence filed
in this cause may be incorporated in the transcript of
record to be filed in the Appellate Court.
STATE OF ILLINOIs,
County OF COOK.
IN THE CIRCUIT COURT OF COOK COUNTY.
June Term, A. D. 1895.
The Chicago General Railway
Company and the West and
South Towns Street Railway
Company |
(). }-
Chicago City Railway Com-
pany.
BILL OF ExCEPTIONS.
Stipulation between the parties herein that this case be
set down for final hearing June 18, 1895; that affidavits
stand as depositions; that case stand for hearing on the
37
64
present record with leave to either party to recall any
witness for examination or cross-examination, or to take
the testimony of any additional witnesses within the times
herein specified.
That afterwards on the hearing of the above entitled
cause commencing on the 18th day of June, 1895, before
the Hon. Murray F. Tuley, one of the judges of the Cir-
cuit Court of Cook County, the complainants, to maintain
the issues upon their part produced the following evi-
dence :
ABSTRACT OF AFFIDAVITS IN SUPPORT OF BILL.
AFFIDAVIT OF CHARLEs L. BONNEY:
The affiant is the vice president of the General Com-
pany, a corporation organized as averred in the bill; that
it acquired the right to operate the lines of the Towns
Company and exercise its privileges under the lease of
April 3d, 1894; and it thereupon entered into possession
and has been in the operation of the same ever since ; that
at that time the Towns Company lines extended in 22nd
street eastward from Lawndale avenue to the west side of
Jefferson street and the City Company’s tracks in 22nd
street extended from State street westward to the east end
of the bridge, and that the west side of the south branch
of the river is about 300 feet east of Jefferson street ; that
22nd street extends across the river by means of the bridge:
that the approaches on either side are about 300 feet
in length, the west approach beginning about at Jef-
ferson street and the east approach extends eastward
to Grove street; that the traveled way of 22nd street is
caused to approach and meet the said bridge by artificial
3S
66
constructions of timbers and planking, making an ap-
proach of equal width with the width of the street; that
the approaches are constructed of piling and timbers and
planking so as to carry the driveway up from the surface of
the street at Jefferson street up an incline to the level of
the bridge, about twelve feet above; and the eastern ap-
proach is similarly constructed, so as to carry the drive-
way downward from the bridge to the level of the surface
of the ground at Grove street; that the tracks in 22d
street east of the bridge extend from Grove street upon
the approach up to the east end of the bridge; that those
fracks on the east approach to the bridge were, during the
summer of 1894, totally unused by the defendant or any
other company for the transportation of passengers for
hire; that in and along where Grove street intersects said
22d street, was then and for many years before had been
situated the two tracks of the Chicago and Alton Railroad
Company operated by locomotives, and carrying passen-
gers and freight between Chicago and Kansas City, and
constituting an obstruction across 22d street against the
passage of street cars from points to the east of Grove over
said intersecting Alton tracks and up said approach ; and
that for several years prior to July, 1894, the only use of
said tracks in said 22d street east of the bridge and west
of State street had been that defendant caused a single car
to be drawn to and fro from State street to Grove street,
one trip each half hour, but not using the tracks on the
approach.
That the approaches, consisting of piling, timbers and
planking on each side of the river, were constructed up-
wards of seven years prior to April, 1894. That in the
summer of 1894, said approaches and the rails laid on the
eastern approach were not in a condition of good repair,
39
7
or safe and adequate for ordinary travel and use thereof,
as a part of 22d street, and were not adequate to support
the additional surface necessary for the operation of rail-
way cars of the General Company over the same, as it was
then proposing fo do, and reconstruction was necessary
for that purpose.
About July 31, 1894, affiant, who was vice president of
the General Company and president of the Towns Com-
pany, opened negotiations with the City Company, and
addressed a letter to the City Company, a copy of which
is attached as an exhibit, and marked “Exhibit “A.”
That a short distance east of Grove street, and east of
Canal street, 22d street and the tracks therein, are inter-
sected by six tracks which are part of the system of the
Atchison, Topeka and Santa Fe Railway Company, which
are referred to in the letter “Exhibit A.” Shortly after
writing the letter affiant met Hon. Julius S. Grinnell, at-
torney for the City Company, who invited affiant to call
on him, and discuss the proposition suggested in the let-
ter. Affiant thereupon repeatedly called on Grinnell and
held several consultations with him, during the months of
August and September, 1894, and in the first of the con-
versations, and at Grinnell's request, affiant called Judge
Grinnell’s attention to section 13 of the ordinance of Feb-
ruary 8th, “Exhibit D,” to bill, reading as follows:
“Sec 13. Said company shall have the right to con-
“nect its tracks with those of the Chicago City Railway
“Company on 22d street, at or near Grove street, but
“shall have no right to construct any tracks east of the
“Chicago river on said street without the consent in
“writing of said Chicago City Railway Company. Said
“ company shall also have the right to operate its cars
‘‘ over tracks not owned by it on such terms and condi
40
“tions, by lease or contract (as may be agreed upon
“between the companies owning such respective tracks),
“ or otherwise not in conflict with any of the conditions
“of this ordinance or the general ordinances of the city;
“and provided further that the rate of fare to be charged
“upon the lines herein authorized, or over which said
“company may so operate, shall not exceed five cents for
‘‘ one continuous ride for any distance within the present
“ or future city limits.”
And affiant requested Grinnell to consider and fix the
point of connection of the tracks of the Towns Company
with the tracks east of the river, and at an ensuing con-
versation between Grinnell and affiant, Grinnell stated
that upon consideration the City Company preferred to
have the point of connection at the bridge, and that if
affiant's company would see to the reconstruction of the
approach, the City Company would lay their tracks
thereon.
Affiant states that in all of said conversation which en-
sued upon the writing of the letter of July 31, 1894, it
was clearly understood and agreed with affiant, repre-
senting the complainant companies, and Judge Grinnell
representing the City Company, that the tracks of the
complainant companies should be connected with the
tracks of the City Company at a point near Grove street,
viz: a point where the east approach of the bridge con-
nects with the bridge.
That the questions mainly discussed therein were the
questions of fixing the point of connection, and affiant in-
sisted in said conversations that it was the clear right of
the Towns Company and General Company to connect
their tracks with those of the City Company on 22d street,
and that the General Company did not desire to bui/d tracks
41
7()
east of the river, as to which the ordinance required the
consent of the City Company, and that the purpose for
which the complainant companies desired to make the
connection of said tracks was for the purpose of operating
their cars over the tracks not owned by it, either upon
terms fixed by contract or otherwise, not in conflict with
the ordinances of the city.
That thereupon the City of Chicago, by Samuel G.
Artingstall, its chief engineer, ordered said reconstruction
to be done, and caused an estimate of the cost of re-con-
structing the bridge and approaches to be made, and esti-
mated that the same would cost about $2,500 ; that the
portion thereof chargeable to the General Company by
reason of the benefits it would receive in the use of the
approaches on both sides of the bridge would be about
$2,000, and that the city’s portion would be $500, all of
which is more fully set forth in communications between
Artingstall and the General Company, copies being
attached as Exhibits “B” and “C.”
Said request by the City of Chicago to complainants to
deposit with the city $2,000 for use in the reconstruction
of said bridge was complied with by complainants, and
affiant caused $2,000 to be deposited with the City of
Chicago for the purpose of reconstructing said approaches,
and thereupon the sub-structure of said bridge and both
approaches thereto were repaired and reconstructed by the
employes of the city at the expense of the Towns Com-
pany, and the iron rails for the railway tracks for the use
of said company were laid on the west approach, and upon
and across the bridge, by the Towns Company, and com-
pleted and put in order to the satisfaction of the city au-
thorities; and in accordance with the arrangement made
by affiant on behalf of said complainants and Judge Grin-
42
71 mell, on behalf of the City Company, the City Company
proceeded to lay down the iron rails for the street car
tracks from said Grove street to the east end of the bridge,
in order to connect the lines of the defendant with the
lines of the complainants, and the City Company laid the
same upon timbers which had been placed in the said
street by the City of Chicago at the expense of the com-
plainant companies, with the knowledge and consent of
the City Company. s
That on July 31, 1894, the City Company already had
tracks constructed on the eastern approach to the bridge;
that when the tracks of the Chicago General Company
were laid upon the bridge they were so laid that the east-
ern ends of said tracks did not meet, connect, and co-
incide with the western ends of said rails, formerly laid,
and then being upon the eastern approach, but were de-
flected therefrom by jog or deflection of about sia, inches
sideways from the ends of the rails upon the eastern ap-
proach ; that when the sub-structure and eastern approach
were constructed by the city, the City Company caused
its rails upon said eastern approach to be relaid, and to be
so relaid that the western extremities thereof did meet,
match, connect with and coincide with the eastern ends of
the rails upon the bridge, and the junction and meeting of
the tracks of the City Railway Company with those of the
Towns Companies and General Company was made by the
72 City Railway Company.
Sworn to May 6, 1895.
43
73
ExHIBIT A.
“CHICAGO GENERAL RAILWAY COMPANY.
ge CHICAGO, July 31st, 1894.
Hon. J. S. Grinnell, Wo. 2020 Stafe street, City.
DEAR SIR: We are expecting plans from the bridge
department of the city daily and believe the work of
tracking the bridge should be completed in something like
thirty days. Will you please order a cross-over con-
structed just west of the Santa Fe tracks, and have the
rails from the bridge to the Santa Fe re-laid and bonded.
We will then have the necessary wire put up and operate
to Canal street. We will then be within one block of
your Archer a venue cars via Canal street.
I recently called on your Mr. Bowen and requested him
to place a sign on your 22d street car, stating that it con-
nected with our electric cars. I also requested him to add
another car so that connections could be made every ten
minutes with our cars, commencing at 5:55 A. M. and
running until 11:45 P. M.
For the purpose of a temporary operation to Canal
street, and until the R. I. Ry. elevation can be perfected,
we suggest that you write out such a form of contract as
you desire us to sign and make the rental a nominal sum :
We would like to have this arranged as soon as possible
so that upon the completion of the bridge work we may
operate to Canal street, and we would thank you to ar-
range the matter as soon as possible.
If this temporary contract is made for a short time or
for an unlimited time with a proviso that it may be termi-
nated on short notice, we think that you should pay all
44
expenses of reconstructing the track and cross-over, or if
you will make a contract for a long time we would be
willing to reconstruct the road and cross-over.
Very respectfully,
(Signed) C. L. Bonn Ey, V. Pres.”
ExHIBIT P.
74 ‘‘ DEPARTMENT OF PUBLIC WORKS.
Samuel G. Artingstall, City Engineer.
CHICAGO, Oct. 2nd, 1894.
L. C. Bonney, AEsq., Chicago Gen’/ /ēy. Co., 1032 Lawn-
dale Ave., City.
Copy.
DEAR SIR : Enclosed find copy of report showing
what is necessary to be done to change and strengthen the
22nd street bridge and approaches thereto so as to make
it safe for the passage of your cars. We estimate that
your share of the work will amount to about $2,000. If
you will kindly mail us a check for this amount, we will
proceed with the work without further delay.
Yours truly,
(Signed) SAML. G. ARTINGSTALL,
City Engineer.”
75 Report by J. E. Roemheld, engineer of bridge depart-
ment, to S. G. Artingstall, city engineer:
“DEAR SIR. In regard to alteration and re-enforce-
ment of 22d street bridge and approaches to carry the
electric cars of the General Company, I would report as
follows:
(Here follows a description of the bridge, and of the
76 approaches, and diagrams of the same. The report then
45
77
states: “Although the trusses are in good condition the
floor system is bad, and not of the proper efficiency to
carry these cars, 25,000 pounds, and I would suggest the
substitution of 4" × 14" pine beams in place of the
present deteriorated 4" × 12" beams. This would neces-
sitate the tearing up of the entire roadway floor, which
would cost about $500. The west approach consists of
12' 0" centers, and 12" × 12" caps, upon which are
3" × 12" stringers and a course of 3" oak planking.
With the exception of the oak floor the general condi-
tion of the structure (the west approach) is fair. I would
suggest the placing of 8" x 12" stringers under each rail,
in place of the present 3" × 12" stringers. This would
necessitate the tearing up of the floor for a width of 16
feet for the entire length of the approach and the renova-
tion of oak planking, which would cost $750.
The east approach is constructed same as the west ap-
proach but its condition is much worse. Most of the caps
and a great many of the posts are rotten, and will have to
be replaced. Owing to the lumber piles, debris, etc., it was
impossble to ascertain the condition of the foundations,
and we will only be able to estimate this when torn up,
but it is safe to say that in addition to alterations similar
to west approach, one-half of the twenty bents will have
to be rebuilt, as will also the north sidewalk—cost $1,250.
Summary :
Bridge . . . . . . . . . . . . . . . . . . . . . . . . . $ 500
West approach . . . . . . . . . . . . . . . . . . 750
East approach. . . . . . . . . . . . . . . . . . 1,250
East sidewalk . . . . . . . . . . . . . . . . . . . 150
Total . . . . . . . . . . . . . . . . . . . . . . . . $2,650
46
$2,000 is the railroad company's proportion, which in-
cludes the cost of laying 16 feet of 3" oak planking
throughout, and the placing of beams to carry their cars.
Respectfully submitted. -
J. E. ROEMHELD,
Eng”. of Bridge Dept.
ExHIBIT C.
78 DEPARTMENT OF PUBLIC WORKS.
SAMUEL G. ARTINGSTALL, City Engineer.
CHICAGO, Oct. 9th, 1894.
L. C. Bonney, AEsq., C. G. Ry. Co., City: Copy.
DEAR SIR.—I beg to call your attention to my letter
addressed to you Oct. 2nd, wherein I estimated your share
of the work of changing the 22nd street bridge and ap-
proaches to strengthen them for the passage of your cars
at $2,000.00, and requested you to mail a check for the
amount.
Will you kindly give this matter your attention and for-
ward this check so that we can complete the work and
have the structure safe for the passage of your cars.
Yours truly,
(Signed) SAML. G. ARTINGSTALL,
Cºty Engineer.
AFFIDAVIT OF JAMES BOYD.
80 Affiant states that he is a resident of Chicago; that on
April 4, 1895, he was present in 22d street, and upon
car No. 306 of the General Railway Company. The car
was drawn by two horses. There were about ten persons
on the car, including W. Brennan, superintendent; L. C.
47
81
Ponney, secretary, and L. E. McGann, president of the
company, besides J. W. Farwell and others. That said
car came east upon the tracks in 22d street, up the west
approach of 22d street to the bridge across the south
branch, and along the tracks on the bridge to the east end
thereof, where it was met by N. K. Bowen, superintendent
of the City Railway Company, who addressed Brennan,
and commanded that the car be stopped. Brennan asked
why, to which Bowen replied, “Because these tracks
don’t belong to you; they belong to the City Railway
Company, and I, as superintendent of the company, warn
you not to trespass.” Whereupon Brennan asked :
“Have you an injunction, or any order of court or writ-
ten authority to keep us off?” “I have not,’’ replied
Bowen. “Drive on,” said Brennan to the driver, and
the car was thereupon started, when Bowen immediately
signaled to a large number of City Company employes,
between four hundred and five hundred men, who imme-
diately came from all directions in response to Bowen’s
signal, with three large wrecking wagons of the City
Company, which were rapidly driven to the spot, and
were filled with men, while another wagon, which stood
at the corner of Grove street and 22d, heavily loaded with
iron motor castings, was suddenly driven out of Grove
street, across the tracks in 22d street just east of the east
line of Grove street, where the right front wheel suddenly
came off, and the wagon was stationed across the tracks,
so as to effectually bar any passage thereof by the ap-
proaching car.
Thereupon Bowen commanded the men to hook on to
the car, which they immediately did, by inserting into its
gearing a large iron hook attached to a heavy cable upon
the wrecking wagon, when Bowen ordered the men to pull
48
82
83
the car off the track, which they immediately did, by driv-
ing the wrecking wagon in a direction opposite to that
in which the car was headed, and sideways, while other
City Railway employes flocked about the car and pushed
against it and overturned it, and yet others detached the
team which was drawing it. Bowen shouted to his men :
“That’s right, pull her over,” which they did ; and
Bowen again shouted : “Now take your axes; break
it all to hell,” whereupon as many of the 500 men as could
obtain access to the car immediately began breaking it up
with sledge-hammers, axes, crowbars and other weapons,
and in less than fifteen minutes after reaching the end of
the bridge the car was a total wreck. The City Railway
Company’s employes continued to beat and attack the car
until they had broken up the wheels and running gear,
broken out the windows and broken off the roof, and de-
molished the seats and lamps, and totally ruined the car.
Large numbers of citizens who witnessed the occurrence
were offering to interfere on behalf of the General Com-
pany, to protect the car from demolition and repel the
force used by the City Company, with force in return, but
President McGann dissuaded them, and dissuaded the
employes of the General Company from making forcible
resistance, and used strenuous efforts to preserve the peace,
but for which bloodshed would have ensued in the street.
At about the time when the work of destruction was com-
plete, a police patrol wagon, in response to a request
from Mr. McGann, arrived with officers, who commanded
the crowd to get back from the car, and undertook to
arrest several City Company employes, when Bowen en-
gaged in an altercation with a by-stander, and struck
at him, but was separated from him and the blow warded
off by an officer in citizen’s clothes, at the sight of whom
* 49
85
Bowen refrained from further violence. The police then
commanded Bowen to remove the obstruction from the
streets, which Bowen pretended he was unable to do, be-
cause his forces were under arrest, whereupon the com-
mandant of the wagon released the men from their arrest,
and Bowen and the City Railway Company’s employes,
under his direction, proceeded to remove the car to the side
of the street, out of the way.
Sworn to May 13, 1895.
AFFIDAVIT OF JAMES B. CRAVATH.
Affiant states that he is a resident of Chicago, and is
and has, for upwards of two years past, been an editorial
writer on the Street Railway Review. That on the fore-
noon of April 4, 1895, he was present on the east approach
to the 22d street bridge, and saw car No. 306 of the
General Railway Company come up the western approach
and cross the bridge to the east end, on board of which
were W. F. Brennan and several other persons. At the
east end of the bridge the car was stopped by Superin-
tendent Bowen of the City Railway Company, shortly after
which Bowen, assisted by a large number of employes
of the City Railway Company, attached wrecking wagons
to the said car of the General Company, pulled it from
the tracks, overthrew it, and broke it up, using for that
purpose, cables, hooks, axes, sledge hammers and other
instruments.
That affiant had with him a photographic camera ad-
apted for taking instantaneous views, and, upon the order
to stop being given, began to take views of the occur-
rence, and prior thereto had taken certain other views of
the wrecking wagons standing about ; that these views
50
87
have been printed, and affiant attaches a reproduction of
these views, marked “Exhibit A,” which he states were
COrrect. *
Sworn to May 13, 1895.
“Exhibit A,” a reproduction of views referred to
above.
Exhibit "A" to Affidavit of James B. Cravath,
Editorial Writer STREET RAILWAY REVIEW.
Being Reproduction of Photographs, showing Destruction of Car No. 306, of Chicago General Railway Company, by Employes
of Chicago City Railway Company, on the East Approach to Twenty-Second Street Bridge, April 4, 1895.
1. EAGER FOR THE FRAY. 5. “ DRIVE O N.” S. SHATTE RING FRUNN IN G C E A R.
2. ONLY VV AITING. 6. “ HOOK ON TO HER '' 9. SLEDGE HAMMER VVO R K.
3. LOST A VV HEEL. 7. EACP. SHE GOES. 1 O. HOME AT LAST.
4. STOP 1 ''

51
AFFIDAVIT OF LEROY W. FullLER.
Affiant states that he is a resident of Chicago, and sec-
'etary of Palmer, Fuller & Co., a corporation dealing in
umber, and wholesalers of sash and doors, and other
ouilding materials, and who have been in business on
22d street for the last twenty years, and control 363 feet
»f frontage thereon.
That on April 4, 1895, he was present in 22d street,
ind saw car No. 306 of the General Railway Company ap-
Yroach the bridge and cross the same, being drawn by a
eam of horses, to the eastern end of the bridge, where
lffiant saw a large crowd of men gathered on the eastern
upproach and across the tracks at the foot of the eastern
approach. Affiant saw a large wagon loaded with heavy
ron, which was standing directly across the track near the
»ast side of the intersection of Grove street with West 22d
street; and a little further off there were three wrecking
wagons of the City Railway Company, each loaded with a
arge number of men.
That as this car, No. 306, reached the eastern approach
»f the bridge, a man took the horse attached to the car by
he bit and ordered the driver to stop, when it was stopped
for a moment, and some conversation took place between
she large man at the horse's head and those on the plat-
form of the car; whereupon the car again started forward,
and the large man, who seemed to be in command of the
force, waved his arm, and the wagons dashed up and into
She sidewalk where affiant was standing, utterly regardless
»f pedestrians on the walk, and with such recklessness that
uffiant was forced to flee to the other side of the street to
save himself from bodily injury ; that as soon as the first
52
92
wagon reached the spot where the car was standing, they
grappled the car with a large grappling hook, connected
with the wagon by a heavy cable, and thereby drew it
backward and sideways off the track, and turned it almost
crosswise of the street, and immediately a large force of
men under the direction of the same large man, rushed at
the car and detached the horses and overturned the car,
and fell upon it with axes, crowbars, sledge hammers and
other implements and destroyed it utterly, shivering its
timbers, destroying the sides of the car, the roof and the
floors and the running gear of the car.
Affiant states that for the last thirteen years it has been
his daily custom to travel backward and forward on 22d
street between Wabash avenue and Throop street many
times daily ; that from the time the City Railway Com-
pany first laid its tracks in 22d street down to April 4,
1895, they operated but one car over the tracks, and that
car was operated in such a desultory and haphazard man-
ner as to be utterly useless to affiant in his daily trips to
and from Wabash avenue.
Affiant states that a single car was only operated by the
City Company to save to itself its franchise or lease in 22d
street; that since April 4, 1895 (the date of the said riot-
ous attack upon the car), the City Railway Company has
doubled the service on 22d street, and that now cars are
running more frequently, but at very irregular intervals.
Affiant states that there are employed in the lumber dis-
trict along 22d street many hundreds of clerks, stenog-
raphers and others, who must, of necessity, pass along
22d street between Wabash avenue and the river many
times daily; and that affiant and others, so traveling along
22d street, have often, by petition and otherwise, endeav-
ored to secure from the Chicago City Railway Company,
53
95
suitable service on its said line in 22d street, but have
never succeeded in accomplishing any result.
Affiant states that since April 4, 1895, the City Com-
pany has been operating two cars on said Twenty-second
street tracks, but that the service now afforded is altogeth-
er insufficient to meet the necessities of those who travel
daily backward and forward over said streets.
Sworn to May 15, 1895.
AFFIDAVIT OF JOHN P. HART.
Affiant states that he is by occupation a bridge foreman,
and inspector of bridges, in the employ of the City of
Chicago, and has so been for four years last past. That
in October, 1894, in his duty as city bridge inspector, he
was directed by John O’Brien, his superior officer, the
Chicago superintendent of bridges, to call upon the officers
of the General and Towns Companies and request them to
make payment to the City of Chicago of a sum of $2,000,
which had heretofore been decided to be the proportion of
the costs of reconstructing the 22d street bridge and its
approaches, which was duly chargeable to the railways
owned and operated by the said companies.
That affiant did so, and was given a letter addressed to
L. C. Bonney, one of said officers, a copy of which is Ex-
hibit B, to affidavit of Charles L. Bonney herein ; that
thereupon about October 9, 1894, affiant, as the represen-
tative of the City of Chicago, delivered to said L. E. Me-
Gann, said letter, requesting the payment of $2,000, which
McGann immediately agreed to deliver and delivered on
the succeeding day, to Samuel G. Artingstall, engineer of
the City of Chicago.
54
96
That thereupon during the months of October and No-
vember, 1894, said bridge and its approaches were recon-
structed by the City of Chicago, under the immediate di-
rection of George H. Valentine, prior to which recon-
struction the bridge and its approaches were in a condition
that they would not adequately support ordinary travel
and the additional service which would be required by the
operation of street cars thereon ; and it was therefore
necessary to reconstruct and repair them, which was done
for the purpose of rendering the bridge and approaches
adequate to bear the increased use from the operation of
the cars of the General Railway Company over the same ;
and that said payment by the General Railway Company
was applied to the cost of reconstruction.
Prior to such reconstruction, there were tracks upon
the east approach which had been laid by the city com-
pany, extending up to the point where said approach met
the bridge, but said tracks were not provided with bridge
shoes. -
The bridge shoes are rails broadened at the end, and
used upon the street approaches to bridge next adjacent
to the bridge, for the purpose of compelling cars which
come from the bridge and run on to the approach thereto,
to run upon the tracks of the approach, and avoid derail-
ing in passing from the bridge to the approach ; that
after said bridge was reconstructed said tracks upon the
east approach were changed in location, and fitted to meet
the tracks upon the bridge, and were fitted with bridge 8/oes
so as to compel cars coming from said bridge to 770m upon
the tracks of said east approach, and prevent them escaping
or avoiding said tracks upon said east approach.
That on or about the 4th of April, 1895, and for sev-
eral years prior thereto, said City Railway Company oper-
55
97
ated only one car on 22d street from State street west to
a point between Canal and Grove streets; and operated
the said car therein only at infrequent and irregular in-
tervals, and did not operate any car upon said east ap-
proach to said bridge; that the same was totally unused for
the operation of cars.
That about 10 o’clock on the morning of April 4, 1895,
affiant was working in the neighborhood of said 22d
street bridge, and was attracted thereto by a great noise
and riot in the streets ; that he immediately hastened to
the east end of said bridge, and there saw a car of the
General Railway Company, lying upon its side, with
ropes and grappling hooks attached thereto, which were
also attached to a wrecking wagon of the City Railway
Company ; and affiant saw an immense crowd of men sur-
rounding said car armed with sledge hammers, axes, crow-
bars, pick-axes, and other instruments of destruction, and
engaged in Smashiug up and destroying the car, which
they continued until it was completely destroyed ; that
they were under the command of a large man and acting
under his orders in the work of destroying the car, and
worked with great energy and rapidity, so that the entire
destruction of the car was accomplished in less than ten
minutes after the affiant reached the spot.
Affiant saw L. E. McGann, president of the General
Company standing by and surrounded by a large num-
ber of citizens, who expressed great indignation at the
acts of violence and destruction, and offered to interfere
on behalf of the General Company, and drive the force of
men who were destroying its car away, and throw them
into the river and teach them not to take the law into
their own hands; but said McGann most strenuously ex-
ercised himself to repress the citizens who witnessed the
56
99
100
said acts of destruction from interfering to stop the same ;
he used the most strenuous efforts to keep the peace, and
but for his efforts to keep the peace the destructive acts of
the men who were destroying the car mnst have resulted
in bloodshed.
Sworn to May 16, 1895.
AFFIDAVIT OF HARVEY S. HAYDEN.
Affiant states that he has for the last tenyears been engaged
in the lumber business in West 22d street, and is the sole
surviving member of the firm of Hayden Brothers, dealers
in hardwood lumber, having their place of business in
West 22d street, on the corner of Jefferson street; and
that said firm controls 365 feet of frontage on 22d street.
That on April 5, 1895, he saw car No. 306 drawn by
horses over the eastern approach of the bridge and to the
east end of the bridge, where it was met by N. K. Bowen,
superintendent of the City Railway Company, who
ordered the driver of the car to stop, which was done for a
moment during which some conversation occurred between
Bowen and the people on the car, when Bowen waved his
arms and called to a large crowd of men on the east
approach and a large wagon heavily loaded with great
iron, drove out of Grove street, across the track of the
City Railway Company, and one of the front wheels was
taken off, so that the wagon became an effectual barrier
to the passage of car No. 306, which was then approach-
ing Grove street; and other men under Bowen’s command
drove rapidly to the spot in three large wrecking wagons
of the City Company, hitched their grappling hooks into
the car and pulled the car off the track, and others, under
Bowen's orders, overturned the car, and detached the
y
101
57
horses therefrom and removed it from the rails, while
the City Railway Company’s employes, at Bowen's com-
mand, attacked the car with crowbars, sledge hammers and
axes, and utterly demolished the car and reduced it to
fragments.
Martin Nolan, a police officer, stationed at the bridge,
attempted to restrain Bowen and the City Company’s em-
ployes from their acts of violence, but they utterly ignored
him and persisted in their work of demolition. Many peo-
ple residing on 22d street, and others doing business in
the vicinity, were highly indignant and offered to said Mc-
Gann to interfere on behalf of the General Railway Com-
pany, and but for McGann's refusal to meet force with
1()2
force, bloodshed would have resulted.
Affiant states that for the last ten years it has been his
daily custom to travel on 22d street, between Wabash ave-
nue and Jefferson street, and that from the time the
City Company first laid its rails therein down to April 4,
1895, the City Railroad Company did not furnish the resi-
dents of West 22d street, and persons having occasion to go
thereon, sufficient means of transportation to be of any use ;
that but one car was run upon the line, and that only at un-
known and infrequent intervals. That while said one car
was running in this manner, affiant, although he made two
to five trips daily over that part of 22d street, was unable
to use the same, owing to the desultory manner in which
it was run, and it was more economy of time for affiant to
walk the said distance than to wait the convenience of the
operator of said single street car.
That since April 4, 1895, the City Railroad Company
has doubled the service on said tracks in said 22d street,
between Wabash avenue and Grove street, and is now run-
ning two cars at somewhat irregular intervals; that a large
5S
103
1().5
number of clerks, office helpers, typewriters and others,
come from Wabash avenue, on 22d street, into the lumber
district where their employment is, and at lunch time and
in the evening, they of necessity go back and forth over
this part of 22d street; and a great number of laborers
go from their homes in the residence portion or district
west of the lumber district eastward on 22d street to
their factories and other places of employment on the south
side; that now all this great number of people are com-
pelled to walk backward and forward on 22d street, from
the river to Wabash avenue, because of the insufficient
service offered by the City Railroad Company, and that
now, with two cars in operation on said tracks, the service
is altogether insufficient to meet the necessities of those
having occasion to travel backward and forward on that
portion of West 22d street.
Affiant is well acquainted with the lines of the General
Railway Company in operation on West 22d street, and the
service offered the public thereon ; that said service is alm-
ple and sufficient for the travel on the street, and is a great
and immeasurable benefit to the laborers and employers
on 22d street; and that this benefit would be vastly in-
creased if the service so offered by the General Railway
Company were extended so as to connect with the means
of transportation north and south on State street Wabash
avenue, and the Elevated railroad on the south side.
Sworn to May 15, 1895.
AFFIDAVIT OF MARTIN NOLAN.
Affiant states that he is a police officer for the City of
Chicago, and has been on the police force for over ten
years; and for the last six years has been assigned for
59
duty on the 22d street bridge; that on April 4,
1895, while on duty there, he saw car No. 306, of the
General Railway Company approach the bridge from the
west, and that it was drawn upon and over the bridge to
the east end thereof by horses; and that at the foot of the
east approach there was gathered a large force of men
who were employes of the City Railway Company, and
three wrecking wagons of the City Railway Company, all
under the direction of M. K. Bowen, and a large man
whose name was unknown to this affiant, and had been
stationed there for some time, apparently waiting for
something.
As the car reached the eastern approach, Bowen and his
associate in command stopped the car; as the driver urged
his team forward, and the car started, Bowen and his
associate in command signaled a waiting force, when a
wagon filled with heavy iron castings, which was standing
on Grove street, was driven upon the tracks on 22d
street, and a wheel taken off, so that the wagon effectually
blocked the passage of the car from going further than
the intersection of Grove and West 22d street, where
said wagon was located; that at Bowen's signal the wreck-
ing wagons were driven with great speed to the car, and
affiant commanded the wrecking wagons to stop, and they
did stop, when three employes of the City Railway Com-
pany, claiming to be officers, opposed affiant, saying :
“There are other officers here as well as you ;” but the
supposed officers showed no star, nor would they give their
names; the men on the wrecking wagon attached a large
hook and cable to the car No. 306, and pulled the car of
the tracks and turned it across same, and thereupon aſliant
again ordered the driver of the wrecking wagon to stop,
*and ordered Bowen and those under his command to cease
60
1 ()7
109
110
the attack and to keep the peace, but they utterly disre-
garded affiant's order and overturned the car and attacked
it with crowbars, sledge hammers and other weapons, and
began destroying it, when Bowen commanded them to
“knock hell out of it; make kindling wood of it.”
That affiant stood ready to repel the attack of Bowen
and his men, but McGann seized affiant and refused to
allow him to use force in repelling the attack of Bowen
and his employes; thereupon affiant went to a telephone
at the corner of Grove and 22d streets and telephoned
to the police station, asking for all the men that could be
sent, and as soon as possible a patrol wagon arrived from
the station, bringing in seven or eight officers; that by
the time the patrol wagon arrived the work of destruction
of the car had been completed by Bowen and no further
acts of violence were done ; and at the command of affiant
Bowen and his men removed the debris of said car from
said tracks to one side of the street, where the debris laid
for several days.
Sworn to May 15, 1895.
AFFIDAVIT OF CHARLEs E. THOMAs.
Affiant states that he is a resident of Chicago and civil
engineer employed by the General Railway Company :
that in the course of his duty he supervised, on behalf of
said company, and its lessor, the Towns Company, the re-
construction of the 22d street bridge and its approaches,
and laying of said rails upon said bridge and west ap-
proach ; that he has drawn a plan and profile of the bridge
and approaches, marked Exhibit A.
That the plan and profile correctly represent the bridge
* 61
1 11
and approaches and railway tracks, that the approaches
are sustained on rows of piles, twelve feet apart, between
centers, and covered with driveways of planking ; that the
piles are capped with 12” x 12" caps, upon which are laid
8" x 10" stringers, for the support of each rail; all of
which on each approach were constructed by the City of
Chicago, at the expense of the Towns and General compa-
nies; that street car rails were laid upon the bridge and
approaches by the Towns and General Companies. That
prior to the reconstruction there were tracks laid upon the
east approach, extending up to the bridge by the City
Railway Company, and also east of the said approach, in
22d street; that the tracks laid on the bridge by the
Towns and General Companies did not connect with the
tracks previously laid on the east approcch by the City
Railway Company ; that the east end of said rails on the
bridge and the west end of the rails previously laid by the
City Railroad Company on the east approach, came to one
and the same straight line, turning from north to south,
and constituted a line of meeting of the bridge and ap-
proach ; but that the rails did not meet and form a contin-
uous railway track by reason of the fact that there was a
jog or deflection between the rails laid by the General and
Towns Companies on the bridge, and the rails previously
laid on the east approach by the City Railway Company,
which jog or deflection rendered it impossible for a car
upon the bridge to pass on to the rails upon the east ap-
proach, or for a car on the east approach to pass on to the
rails laid upon the bridge; that a car attempting to make
said connection over the rails laid by the General and
Towns Companies on to the rails previously laid by the
City Railway Company would be derailed and run off the
track in the attempt.
62
112
That said jog amounted to a distance of about five
Žnches from rail to rail; that after said eastern approach
had been reconstructed stringers were laid thereon at the
expense of the General and Towns Companies by the
employes of the City of Chicago; that the position of
the said stringers upon the east approach were determined
by direction of the City Railway Company; and its en-
gineer furnished a plat to employes of the city, directing
them where to lay the stringers, which was done accord-
ingly.
That said City Railway Company caused the stringers
to be laid in a different position from that in which the
stringers previously there had been laid ; and deflected
the course of the new stringers from the course of the old
ones so as to make the new stringers meet with and con-
duct the rail to be laid thereon up to and connect with the
tracks laid by the General and Towns Companies, thereby
changing the location of the tracks upon the east approach
from the place where they were formerly laid and chang-
ing them to conform and adapt the same to the tracks laid
by the Chicago General and Towns Companies.
That said jog or deflection in the course of the original
track upon the east approach away from the line of the
location of the track upon said bridge, has existed from
the time when said track upon said east approach was
originally laid ; that the distance between the tracks upon
the bridge (i. e., between the south rail of the north track
and the north rail of the south track) was 3' 9", while the
distance between the tracks on the east approach as origi-
nally laid was 4' 2"; that in the reconstruction of said
stringers, said City Railway Company and its officers and
agents, caused the distance between the tracks to be re-
adjusted upon the east approach to conform to the ar-
63
113
rangement of the tracks of the General and Towns Com-
panies upon the bridge.
Upon Exhibit A affiant has colored the tracks laid by
the General Company, pink, and marked the west ex-
tremity “A,” and the east extremity “B” ; the Alton
and Santa Fe tracks referred to in C. L. Bonney’s affi-
davit are shown in the plat ; that the tracks laid by the
City Railway Company are there colored brown black,
}, ’’ and the eastern ex-
tremity “D’’; that the tracks upon the east approach of
marking the west extremity “
the bridge, which were constructed in part by the Towns
and General Companies, and in part by the City Railway
Company, he has colored blue, lying between said points
: B '' and C. "?
The grade of the Alton tracks in Grove street is 9.6
feet below the level of the bridge grade, and the location
of the tracks of the City Railway Company, to the east
line of Grove street, is at a grade of 8.1 feet below the
grade of said bridge.
After the stringers had been laid the City Company
proceeded to lay rails thereon and so construct them as
to meet and connect with the rails of the General and
Towns Companies upon the bridge, and in order the more
effectually to do the same and make it impossible for the
cars of the General Company to be derailed in going over
the bridge upon the eastern approach, said City Company
caused rails to be laid at the west end of said eastern ap-
proach of the kind known as bridge shoes, which were
rails at the eastern end conforming in width and shape to
ordinary rails, but broadened out to the width of more
than twice the ordinary width of bearing surface at the
western end where they met the tracks of the General and
Towns Companies. That the bearing surface of said
64 º
114
115
bridge shoes was constructed in a flaring manner, so as to
catch and receive a car coming from the bridge over a
width of eight inches, and to guide and direct it and com-
pel it to go upon the rails to which said bridge shoes led
at the east. That affiant has made a diagram of said bridge
shoes, correctly exhibiting the same, which is marked
Exhibit B, which shows a jog or deflection between the
tracks upon the bridge and upon the eastern approach as
they existed before the City Company changed the loca-
tion of the railway upon the eastern approach, and also
the junction and connection of said tracks as the same was
made and constructed by the City Company, marking the
jog thereon “Before relocating,” and the bridge shoes in
connection “After re-locating ;”—the relocation therein
specified being the re-location of the said road of the City
Company made by it in order to effect a junction with the
tracks of the Towns and General Companies.
That the tracks on the eastern approach consist of the
bed and stringers which were put down at the expense
and charge of the General and Town Companies, and of
rails laid thereon by and at the expense of the City Com-
pany. The reasonable value of the rails and labor of lay-
ing the same and consequent expense born by the city is
about $600; not exceeding $625. That the cost and rea-
sonable expense of the reconstruction of the bed and
stringers, which was done at the expense and charge of the
Towns and General Companies as aforesaid, is (exclusive
of the part borne by the City of Chicago) about $1,041,
making the total cost of reconstruction of said rails and
eastern approach $1,641, and not exceeding $1,666, which
charge was distributed between said companies respectively
in the amounts above stated.
Sworn to May 14, 1895.
-
ExHIBIT : " A.
º
- sº sº
| Gººdºº/* Bºº. º
º -
º: -
º - m -- º
Dºck!T
| Water Level of
r
Lov
So.Br. Chicago Riv.
PROFILE AND plan of 22ND St. BRIDGE ovº, R. So, BRANCH of CHICAGO RIVER AND APPROACHES THERETo As
RE-CONSTRUCTED BY WEST AND SOUTH TOWNS STREET RY. ('O. SCALE 1' 20"
*Drue/fally, to Co.um Stri.
*ś
22nd St. E. of River
- Cul
trº-
- W
sº
S’s
§ Sº
S \, º
N **.
sº §. § -
º, S. º tº wº º
- - º:
sº sº sº º: §
- º
- * * W wº § sº º: º
vº º's º w º * -
Sº º ** S’ Gº º:
~ _^_^****** :
; : *
3 # 3.


















Exhibit 13.
DIAGRAM of EASTERN END OF RAILS LAID BY W. AND S. T.'s AND C. G. R.Y. Co.'s, AND WESTERN END OF
RAILS LAID BY C. C. R.Y. Co. BEFor E AND AFTER RE-Loc ATION OF its RAILs by C. C. Ry. Co.
§
3.
ºs |
3||& >
3||.. * →
º
3.
º º
º
-
- -**
Bridge Shoe. º
- --
sº sº. * -
is ſº * --
S||3
|
- º
> S, , , *
-- - Bridge Shoe -
--L-
-
-->
º,
º:
- º
- ->| | -
> s||3 N
*-r - > >
3||3 > ! º
& |3 * -
-- - -
sº lº-
º
-
-
-
--- º -----
*H* |
-
*-
* - ... s. *-
- 23.5° 3.
-- is is . * ,
- 3. S- * -r
- *-
*...*- -
x- - -
-
-
- -
--
- --
º 3. > s
*-r s' s -
º: -
3||s - --
5||s º
5||3 -
º
-->
-
- -
--
-
IBEFORE, RE Locating. Scale | | ims.-1 ft.
Note. —Fink indicates running rail of C. G. Ry. Co.
Black - “. ‘‘ ‘‘ C. C. Ry. Co. Bl
Tº pring sº
T
>| |<
3||3
's 's
s is
G||5
5 s
-
§§
-
º
---
Note.-Pink indicate running rail of C. G. Ry. Co.
º Bridge. Sº -
A FTER RE-LoCATING.
U16 . .
* - . .
* : ('. C. Ry. Co.
º
-














65
16 “Exhibit A,” profile and plan of 22d street bridge
over south branch of Chicago river and approaches thereto
as reconstructed by West and South Towns Street Railway
Company, scale 1" 20’.
16a “Exhibit B.” Diagram of eastern end of rails laid by
West and South Towns and Chicago General Railway
Companies, and western end of rails laid by Chicago City
Railway Company, before and after its location of its
rails by Chicago City Railway Company.
66
I 1 7
11
S
AFFIDAVIT OF GEORGE H. VALENTINE.
States that he is the foreman of bridge carpenters for
the City of Chicago, and has been in the city employ as
such for upwards of three years last passed; that he was in
direct charge of the reconstruction of the 22d street
bridge and approaches, which was done in October and No-
vember, 1894, during which reconstruction rails were laid
on the bridge and west approach by the General and
Towns Companies. That the eastern approach to said
bridge was reconstructed last of all. That rails had pre-
viously been laid on the east approach by the City Com-
pany that when the tracks on the bridge were completed
and before the reconstruction of the east approach,
the tracks on the bridge did not meet with and connect
with the tracks upon the east approach ; that there was (t
jog in the line of the rails upon the bridge away and from
and not connecting with the lines of rails upon the east
approach thereto. That there were two tracks upon the
bridge and upon the east approach, all extending east and
west; that the center line of each of the tracks upon the
bridge failed to meet the center line of each of the tracks
upon each approach respectively, by a distance of about
five or slo, inches.
That a year or more before the reconstruction a steam
barge navigating the South branch and going south thereon,
ran into the north side of the eastern approach, and forci-
bly pushed and ranged the same upwards of a foot to the
south of its normal position.
That affiant in the course of his duty had theretofore, in
the year 1893, caused the eastern approach to be restored,
as far as practicable, to its normal condition, and had
67
119
strengthened the same and rendered it firm and solid in the
position in which it was then and there left, but in the po-
sition of the eastern approach as thus re-established, the
line of the railway tracks thereon was permanently estab-
lished a distance from five to six inches further south than
they had been as originally located, but the same were ren-
dered firm and secure in a new position, resulting from said
collision and readjustment and strengthening done by affiant
and under his direction.
After the bridge and west approach had been recon-
structed in October, 1894, affiant proceeded with a force
of men to reconstruct the east approach, the work being
done by the City of Chicago and paid for by the West and
South Towns and the General Companies. That when the
reconstruction of the east approach was completed, the City
Company relaid rails upon the east approach and extended
the same up to the west edge of said approach where it
meets the bridge.
In so doing the City Company caused new rails to be
laid at the west end of the east approach of a kind known
as bridge shoes. That ordinary street car rails which had
been in use upon said eastern approach before the recon-
struction had a width upon the face or bearing portion
thereof of about two inches, with a flange of about three
inches.
That the bridge shoes have a bearing face six inches
wide, with a flange having an additional width of four
inches, giving a total width of shoe as ten inches.
That said bridge shoe constitutes a widening of the re-
ceiving or bearing surface of the rail on the east approach,
which gradually narrows down from ten inches in width
to the width of the ordinary rail, with the six inches of
68
120
121
1 22
123
receiving surface at the western extremity, narrowed down
to a point between three and four feet east of the bridge
to the width of the ordinary rail surface. That said
bridge shoes were put down on the western extremity of
said east approach by said City Company. That the jog
or deflection between the rails laid down by the towns
and general companies upon the bridge and the rails pre-
viously laid by the City Company was overcome and re-
moved by means of said bridge shoes, and the connection
of the tracks upon the bridge with the tracks upon the
east approach was made by the laying of said bridge shoes
upon said east approach by said Cºty Company.
The stringers or wooden beams upon which said rails
and bridge shoes on the east approach were laid, were put
down by affiant and the force under him, at the expense
of the General Company and the Towns Company. That
the same were laid under the direction of the engineer of
the City Company, and in accordance with a plat furnished
for that purpose to the affiant by the City Company. That
the stringers or bearing timbers for said rails were laid
throughout the whole length of said eastern approach by
affiant at the expense of the General and Towns Compa-
nies as aforesaid. - &
Sworn to May 13, 1895.
Whereupon complainants rested their case.
Thereupon the defendant, to maintain the issues on its
part, produced the following evidence:
AFFIDAVIT OF JULIUS S. GRINNELL.
Affiant states that he is the same Grinnell referred to
in the affidavit of Charles L. Bonney, and is general coun-
69
124
sel of the Chicago City Railway Company, and has been
for over four years past, and is informed and believes
that Charles L. Bonney is the vice-president of the Gen-
eral Company and president of the Towns Company, and
has been such vice-president and president for several
years past.
That Charles L. Bonney called on affiant in 1892, rep-
resenting the Towns Company, and desiring to make some
running arrangement with the City Company ; that affiant
informed him he was only general counsel for the City
Company and had no authority to negotiate running ar-
rangements, and referred him to the president and di-
rectors.
He believes that Charles L. Bonney did communicate
with the directors in 1892, without response. That on
further consultation with Charles L. Bonney in 1892, he
again told him he was not authorized to negotiate with
him. That at different times from 1892 until July 31st,
1894, and until November 16, 1894, affiant had
several interviews with Charles L. Bonney, in all
of which, when reference was made to running
al-rangements, affiant informed him that he had no
authority to make contracts for the use of tracks, and
further this affiant says that in several of said conversa-
tions this affiant informed said Charles L. Bonney that if
it was left for this affiant to advise as to what the said City
Company should do or would do in reference to leasing
or contracting with said Bonney’s companies for the use
of track, he should feel it his duty to advise against the
same, wit/out ºf st having in possession of some syndicate
o,' comb/nation of individuals especial/y friend/y to f/e in-
terests of the ('Wły Company the confro/ of the Paſſ/roads
that Bonney represented.
70
t
Affiant informed said Charles L. Bonney, and then be-
lieved such to be the fact, that Mr. Yerkes was interested
in said Bonney’s roads or lines, and that it appeared as if
Mr. Yerkes was endeavoring, through the instrumentality
of said companies, to obtain entrance upon the tracks and
property of the City Company.
It is true that Charles L. Bonney in some of the conv-
wersations desired to lease or enter into some contract for
the leasing or use of some part or portion of the tracks
of the City Company, and that affiant always informed
Charles L. Bonney that affiant had no authority in the
premises.
And affiant says that he told the said Charles L. Bonney
in various conversations that if said Charles L. Bonney
and this affiant could form a syndicate of capitalists not
embracing or involving the City Company, this affiant
would be very g/ad to assist in that direction and endeavo!'
to induce such syndicate to purchase the said railways in
which said Bonney had an interest, and of which he was
an officer, and this affiant requested Charles L. Bonney to
furnish him with the facts and figures pertaining to his said
railways, the complainants herein, which would show what,
if any, value could be attached to the same, and requested
and desired said Charles L. Bonney to state a prºce or
value of the property so to be purchased by said syndi-
cate, thereby laying a foundation or inducement to the
parties forming such proposed syndicate to invest in the
proposed sale.
That Charles L. Bonney, in pursuance of said sugges-
tion and arrangement, did from time to time during the
last two or three years give affiant some figures as to oper-
ating expenses and receipts, but failed to state or give (!
126 price for which the sale could be made, always giving some
71
excuse as to not having the matter completely made up,
or that the figures could not be given, etc.
Whatever invitations affiant gave said Bonney to call on
him were each and all for the purpose of obtaining a
basis whereby a syndicate might be formed as suggested
above.
Affiant says that he never stated to Charles L. Bonney
that the City Company preferred to have the point of con-
nection at the bridge, or that if said Bonney’s company
would see to the reconstruction of the approach, that the
City Company would lay the tracks thereon.
Affiant did not know that complainants were obliged to
or about to repair the bridge or approaches, but affiant did
say to Charles L. Bonney, at about the time he (Bonney)
mentions, that as good connection for the transfer of pas-
sengers between complainant companies and the City Com-
pang was at the bridge as elsewhere; that the passengers
from their road could leave the car as well at the bridge
as at any distance east thereof, but told Bonney that affiant
had no authority in the matter, and that all affiant's con-
versations with him were on the basis of and in regard to
the said proposed syndicate.
It was not understood or agreed between Charles L.
Bonney and affiant on July 31, 1894, or at any time, that
the tracks of complainants should be connected with the
City Company’s tracks at a point near Grove street,
where the east approach connects with the bridge, or at
any other point.
Aſliant says the questions mainly discussed were the
formation of a syndicate for a possible purchase as afore-
said ; that said Charles L. Bonney agreed with affiant that
complainant companies had no right to run on the City
72
128
129
Company’s tracks without the consent of the City Com-
pany in writing.
As to what Charles L. Bonney means by the words “or
2 3
otherwise ’’ affiant has no knowledge.
Affiant is informed and believes that complainants never
made any proposition to the directors of the City Company
for the use of its tracks.
That affiant has no knowledge as to the various matters
in Charles L. Bonney’s affidavit relating to the reconstruc-
tion of the bridge and the approaches thereto.
Affiant believes that the employes of the City of Chicago
repaired the east approach.
Affiant denies that the repairing of the bridge and west
approach and laying of rails thereon was in accordance
with any arrangement made by said Charles L. Bonney
with affiant.
Affiant is informed and believes that the City Company
relaid its own track upon the east approach pursuant to
the demands and direction of the employes of the City of
Chicago. That it is not true that the said rails of the
City Company on the east approach were laid in order to
connect the lines of the defendant with those of the com-
plainants. That to the best of his knowledge and belief,
the City Company and its officers and agents did not know
that the complainants paid the expense of such construc-
tion and repairing.
Affiant has no knowledge except such as is derived from
the employes of the City Company, as to the rails on the
bridge and east approach, nor whether there was a jog
or deflection, nor whether the rails were or were not in
allignment.
73
130
Believes the rails were laid on the east approach between
the 23d and 31st days of October, 1894.
That on November 15, 1894, Charles L. Bonney called
at affiant's office with information that he had secured
fifty-one per cent. Of the stock of complainant companies,
but did not give him the figure or price for the fifty-one
yer cent. and Charles L. Bonney was informed by affiant
that as Bonney kept postponing the giving of any figure
in regard to the purchase price of a controlling interest in
the complainant companies, that further negotiations were
use/ess.
That Charles L. Bonney then first stated to affiant that
*f the Cºffy Company would enter into a lease or permit
the use of its tracks by said company, and stated the rental,
Bonney would then give affiant a price, which affiant said
was outside his jurisdiction ; that all affiant could or would
do was to place with a syndicate a controlling interest in
complainant companies, and that as no price was named for
such interest, further negotations were useless, since which
last mentioned (late affiant has had no further conversation
with said Bonney.
He says the General Company’s business is operating
electric cars, and not horse cars, and have not operated
horse cars on 22d street for a number of months; that
the attempt to operate horse cars and electric cars on 22d
street is impracticable. That the rails of the east approach
are not bonded for electricity ; that complainants’ purpose
is only that of annoyance and vexation.
Complainants asked affiant if defendant would bond its
rails, and affiant answered in the negative, that it would
be soon enough to bond the rails when complainants had
a right to use them.
74
131
132
That Bonney knew the relaying of rails on the east ap-
proach was not for the benefit of complainants, but be-
cause of the repairing of the east approach by the City
of Chicago, without any reference to the right of com-
plainants to operate cars thereon.
That in the spring of 1895 Bonney publicly stated that
the complainant companies had not made any arrangement
with the City Company for the use of its tracks ; that at-
tempts to that end had failed ; that in Bonney’s annual re-
port in January, 1895, he stated as follows:
“Several times during the last three years this company
has offered to arrange with the City Company for the
operation of cars on East 22d street to Indiana avenue, and
on Clark street to Washington street, which attempted ar-
rangement each time failed. That the statement by the
City Company’s officials that it had a contract with the
West Side Company which would prevent it from making
any inter change of business except by the consent of the
A * & ..Y.
.M. * * * º
West Side Company, and that * * the Chicago
General Company placed its right of way agents in south side
territory to construct lines to the Illinºis Central Rail-
road on 22d street and by several routes to the Union Stock:
‘Yards, and also opened up consideration of an independ-
ent down town connection and /oop.”
That Bonney has declared since January 1, 1895, that
the complainant companies had not obtained any right
from the defendant to use its tracks upon 22d street, or
elsewhere. That complainant companies undertook in
February and March, 1895, to obtain consents of frontage
for additional tracks on 22d street east of the bridge.
That in February and March, 1895, the General Company
undertook to obtain permission from the city council to
lay tracks on 22d street east of the bridge.
75
Affiant was never authorized by the City Company or
133 its directors or officers to negotiate for a connection of the
tracks or for the use of its tracks by the complainants, or
to allow complainants to use its tracks.
And affiant never supposed until the filing of the bill
that the complainant companies claimed otherwise, or
claimed that there had been a connection of the tracks,
and affiant denies that there ever has been any connection
of the tracks.
Sworn to May 20, 1895.
135 AFFIDAVIT BY CHARLEs E. HALL.
Affiant states he has been in the employ of the City
Company for fourteen years and its track master for five
years last past. That about October 23, 1894, some city
employes informed affiant that the city was repairing the
east approach to the 22d street bridge and requested affiant
to look after its tracks, and affiant went to the approach
and found said employes at work, and that the track
thereon had been removed from the east approach ; that
the track theretofore on said east approach consisted of an
old strap rail, now abandoned.
136 That the city employe, or some person, in charge of the
work then going on for the City of Chicago, informed
affiant that the approach was in bad order and decayed and
needed repairing, which affiant verified by inspection.
That he directed Clement C. Smith to inspect the same
and fix the line for the street railway track of the City
Company east of the bridge, and to give to the city car-
penter a center line between the tracks upon said east ap-
proach and in reference to the center line of the east end
of the bridge.
76
[37
138
Affiant states he knew nothing about any conversation
with anybody connected with the complainants, and had
no conversation with any officer or agent or employe there-
of in reference to the relaying of the tracks, nor as to
their interests, nor as to what was paid therefor.
That the said railway tracks east of the bridge were re-
laid without any reference to the track upon the bridge,
and without any idea of the right to connect the same.
It was simply placing a new rail inside of the old one.
That the shoe placed in the two south rails of the east-
bound track was placed there without any reference to the
track on the bridge, and entirely for the protection of the
rails of the City Company placed upon said east approach
to said bridge at the edge thereof, and to facilitate the
passing and repassing of wagons and teams thereon.
That if no shoe had been placed there, loaded wagons
and teams would have injured the track of the City Com-
pany at Said point, and possibly such wagons and teams
would also be injured.
Affiant knew nothing of the intentions or desires of
complainants. &
For many months prior to October, 1894, city em-
ployes had notified this deponent that defendant company
should do some repairing upon said east approach ; that
repairs had been made by the defendant upon said east ap-
proach from time to time during the several months prior
thereto.
That the relaying of said rails was done between Octo-
ber 23 and 31, 1894.
Affiant directed James Sullivan to complete the removal
of the track from the east approach and relay a modern
girder rail.
77
The distance between the tracks on the bridge at one
end is three feet six and one-half inches; at the center
three feet six inches, and at the other end three feet six
and three-quarter inches. That the distance between the
tracks of the City Company at the edge of the east ap-
proach is three feet eight inches.
Affiant repeatedly inspected the work during its pro-
gress, and saw the old stringers, and saw the new string-
ers, and from such inspection believed then and still be-
lieves, that the new stringers occupy the same place as the
old ones. That the rails occupy substantially the same
place as the old rails. That the distance between the
rails in the present track and between the rails in the old
tracks gradually grow less until the edge of the approach
is reached, where they at present are three feet eight
inches apart.
139 That frequently during the last two or three years re-
pairs were required on said approach, and caused to be
made by affiant; that the old rails were often out of place
and would be respiked, sometimes by the City Company,
and sometimes by the employes of the City of Chicago.
That no attempt was ever made in the sixty or seventy
feet next to the bridge to keep the track in proper align-
ment, and that whether or not the old tracks removed by
the city employes were where they were originally laid,
affiant is unable to state.
Affiant knows of the collision of a vessel with the east
approach, and that from such collision the tracks within
about sixty feet of the bridge were not kept in the exact
place, and that it was impossible to keep them in good re-
pair, but the girder rail avoids that difficulty.
Affiant never had any instructions from the directors or
78
140
143
officers of the City Company to lay the rails on the east
approach with reference to those on the bridge, and the
relaying was done without any reference to the rails on
the bridge, and affiant never gave any orders to relay them
with reference to the rails on the bridge.
From affiant's long experience, he says that the proper
way to lay rails on a bridge and approach is with refer-
ence to the center line of the bridge.
Sworn to May 20, 1895.
AFFIDAVIT BY CLEMENT C. SMITH.
That he was an employe in the engineering department
of the City Company from August 1, 1894, to February,
1895; he is now engaged in track manufacturing in Mil-
waukee, and is a civil engineer. That in October, 1884,
he was directed by Hall to inspect the east approach to
the 22d street bridge, and the work of repair there going
on, and did so. That the tracks upon the east approach
had been removed for about 150 feet by the city employes,
and affiant proceeded to locate the center line. The part
of the old rail still remains. That he measured the dis-
tance between the tracks near the Alton track, and at a
point 150 feet east of the bridge and established the center
line between these points and followed that line to a point
thirty feet east of the bridge, at which point the center
line of the bridge met the said center line so laid. That
these points and lines were made and established and
shown to the city employes who were informed by de-
ponent that the tracks should be relaid on the lines, the
same being the old lines up to a point thirty feet east of
the bridge, from which point to the bridge the old lines
had been obliterated and wiped out.
79
144
146
That the rails were relaid with reference to the center
line, and from there on with reference to the center of the
bridge ; that they were not laid with reference to the rails
on the bridge, but with reference to the center line of the
bridge. That affiant ascertained at the completion that
there was not perfect alignment between the tracks on the
bridge and the east approach, and the City Company’s
tracks had nothing to do with the tracks on the bridge.
That he has had long experience in track laying, and
that the proper way is to lay them with reference to the
center line.
Sworn to May 17, 1895.
AFFIDAVIT OF GEORGE H. WHEELER.
States that he is and for four years last past has been
president and a director of the City Railway Company.
He knows of the acts of the board of directors, and Julius
S. Grinnell is its general counsel, but not a director.
That no person, Grinnell nor any other, was ever author-
ized, instructed or directed to act for the City Railway
Company in any matter pertaining to the complainant
companies, or to negotiate with them for a connection of
tracks, or for the use of the City Company’s tracks by the
complainants, or to allow such use by complainants, or
to allow any connection thereof at any place whatever.
Affiant says that no such negotiations, to the best of his
knowledo.e, information and belief, were carried on b
85 - 5 3. t
Grinnell or any other person, and upon like knowledge
3. s — »
information and belief, that neither Grinnell nor any other
person ever undertook to act or speak for the City Com-
pany in any matter or thing whatever pertaining to or
80
~
having relation to said complainant companies, or either
147 of them, or ever allowed or permitted them to occupy or
148
150
151
use any part of the City Company’s tracks, or connect
therewith, or to enter into any agreement to permit the
use or occupancy of any part thereof, or to connect the
same at the bridge or elsewhere, or ever did permit or
allow any connection thereof. That neither he nor said
directors nor any officer of the City Company, ever au-
thorized any such connection, nor authorized, directed or
instructed any person to connect the tracks at the bridge
or at any other place. He never had any information or
knowledge as to any tracks of the complainant on the
bridge until the filing of the bill, or as to the east ap-
proach of the bridge being repaired at complainants' ex-
pense.
Sworn to May 20, 1895.
AFFIDAVIT BY JAMES SULLIVAN.
He is an employe of the City Railway Company, and
has been for twelve years last past. That in October,
1894, pursuant to directions from Hall, track master of
the City Company, deponent, went to the east end of the
bridge with a gang of men to remove the old rails from
the east approach and relay the same. That for about
sixty feet at the east end of the approach the ties and
planking were relaid, and affiant found city employes on
the east approach repairing the same, and that they had
removed about 150 feet of tracks. That the placing of
the tracks and relaying of the rails was done upon the
place occupied by the old rails, up to about f//rty fºeſ of
the bridge, and in reference to the center line of the tracks
east of the bridge, and in reference to the center line
S1
of the bridge. That the rails were not laid in reference
to the rails on the bridge, but only with reference to the
center line of the tracks east of the bridge.
Affiant knew nothing about the tracks on the approach
and had no instructions in reference thereto, and the tracks
laid by deponent were laid without reference thereto, and
except that he saw the tracks on the bridge, had no knowl-
edge or information thereon, and no instructions in ref-
erence thereto, but simply to relay them with reference to
the center line of the old tracks and the center line of the
bridge, which was done.
That affiant laid the rails originally laid on the eastern
approach, which were so laid with reference to the center
line of the bridge, and he does know of some injury
or difficulty with the east approach by collision with a
vessel, but that the recent repairing and relaying did, to
the best knowledge and belief of deponent, put the rails
in the same position in reference to the center line of the
bridge as the old track rails were formerly laid before the
collision.
That as to the deflection between the old rails and the
rails upon the bridge, affiant has no knowledge, because
they were removed by the city employes.
To the best of his remembrance, affiant says the dis-
tance between the old and the new tracks was three feet
eight inches, but of this he does not undertake to speak
pos/t/vely. *
From his long experience, affiant thinks that the tracks
ought not to be further apart than three feet eight inches.
That the distance between the old tracks at a point 250
feet east of the bridge was four feet and six inches, down
to a point about thirty feet east of the bridge, where it
82
1 53
154
I
5
5
[56
was about four feet one inch, the distance gradually be-
coming less until the edge of the bridge is reached, where
it is now three feet and eight inches. •.
And this deponent is positive that the new tracks are in
the same position as the old ones, and that the stringers
are in the same place as the old ones.
That from his long experience such rails can only be
laid properly with reference to the center line, which was
done by the City Company without reference to tracks on
the bridge.
Sworn to May 20, 1895.
Complainants, to maintain the issues on their part, pro-
duced the following evidence in rebuttal:
AFFIDAVIT OF JOHN P. HART :
States that he is bridge foreman and inspector of bridges
in the employ of the City of Chicago in said capacity, and
has been for a period of over four years last past; that
during the period of four years prior to October, 1894,
whenever the east approach to the 22d street bridge over
the south branch of the Chicago river was out of repair
he sent notices thereof to J. E. Roemheld, engineer in
charge of bridges for the City of Chicago, and also to
George H. Wheeler, president of the Chicago City Rail-
way Company; that during that period the City Company
at one time, and one time only, made repairs of the east
approach to said 22d street bridge after such notification;
that at all other times said repairs were made under the
supervision of this affiant and according to his direction.
Affiant further says that when the east approach to said
22d street bridge was reconstructed, in the months of
'83
Qctober and November, 1894, notice was not sent to the
Chicago City Railway Company by him that such recon-
struction was to be made.
Sworn to May 25, 1895.
158 * AFFIDAVIT OF CHARLEs E. THOMAS :
States that he is a civil engineer and in the employ of
the Chicago General Railway Company ; that in the course
of his duty he supervised, on behalf of the said Chicago
General Rajlway Company and its lessor the West and
South Towns Street Railway Company, the reconstruction
of the bridge across the south branch at 22d street ap-
proaches; that acting under the instructions of C. L.
Bonney, an officer of the Chicago General Railway Com-
pany, he called at the office of the Chicago City Railway
Company on State street, and told Mr. Charles E. Hall,
the road master of said Chicago City Railway Company,
that he was the engineer of the Chicago General Railway
Company, and that the said Chicago General Railway
Company was reconstructing the east approach of the
bridge over the south branch at 22d street; that the old
rails of the Chicago City Railway Company on said east
approach were in the way, and that they, the Chicago
General Railway Company, desired that the said Chicago
City Railway Company, should remove them.
That within five (5) hours after he had so advised the
said Charles E. Hall, the employes of the said Chicago
159 City Railway Company were on the ground at work, and
removed the rails.
Sworn to May 25, 1895.
84
162
163
164
AFFIDAVIT OF HENRY J. ALBERG.
States that he is engaged in business with the Pennsyl-
vania Coal Company for three years last past, having
charge of their office on West 22d street, just at the foot
of the western approach to the bridge on 22d street over
the south branch : that he knows the facts concerning the
traffic in wagons over said bridge on 22d street.
Affiant states that about a year ago a bridge was opened
to traffic over said branch of the Chicago river at Canal
and 18th streets, and that early last summer the bridge on
Halsted street over said river, a few blocks south and west
of the bridge on 22d street, was opened for traffic ; that
since the 1st of November last, the wagon traffic over
said bridge on 22d street has not been so great as it was
previously thereto, and before the opening of the bridge
at Canal and 18th streets and the Halsted street bridge
aforesaid.
Sworn to May 27th, 1895.
Complainants, to maintain the issues on their part, then
offered in evidence a certain map of the City of City of
Chicago, marked “Complainant’s Exhibit 1.”
Defendant, to maintain the issues on its part, then offer-
ed and read in evidence the depositions of Stewart de
Kraft, M. K. Bowen, James O'Shaughnessey, Jr.,
Charles E. Hall, Frank A. Green, L. C. Bonney and
Julius S. Grinnell, taken June 12, 1895, before James A.
Purcell, a notary public in and for the County of Cook,
State of Illinois, who testified on the part of the defend-
ant in the above entitled cause, as follows: *
S
à
1.65
166
168
169
DEPOSITION OF STEwART DE KRAFFT :
I am a newspaper reporter, and was on April 2d, 1895,
on the “Record.” I wrote the article of that date headed,
“To Decide a Weighty Point.” I interviewed Mr. C.
L. Bonney before writing it. I called on him to get news.
Abstract of article: “Congressman McGann will give
a street car party Thursday morning. * * * Oppo-
site the hotel, in 22d street, will stand the only horse car
owned by the Chicago General Railway Company. Vice-
President C. L. Bonney will hold the lines and handle
the brake and Mr. McGann will act as conductor. In this
primitive way the street car party will be transferred to
the south branch, where an electric motor car and trailers
enough for all will be in waiting. * * * A quick run
will be made over the sixteen miles of track, with a stop
at the power house at 30th street and Kedzie avenue to
allow an inspection of the plant. Back of all this there
is a point of law that the directors of the Chicago General
Company are anxious to test. They hold that the rails
are the property of the city when once placed in the earth.
It is to settle the question of ownership of the tracks that
Mr. McGann gives his street car party. If it is decided
in his favor, the Chicago General Company will begin to
run electric cars on the Wabash avenue tracks, using the
storage battery system. They claim the City Company has
no rights in Wabash avenue, as in 1863 it entered into an
agreement giving up its rights in Wabash avenue and
agreeing not to construct a line in the street between 22d
and Madison streets. Two years later this agreement was
incorporated into a charter. When the new constitution
went into effect it declared that no special charter should
be altered or amended. December 21, 1874, the City
Company induced the council to grant a franchise in Wa-
bash avenue and built a track over Sunday, avoiding an
injunction. The McGann people claim that the council
'annot do away with the action of the legislature.
86
170
171
172
173
174
175
176
Cross-Evanºvation.
I had been on the Record about a week. I went up to
Mr. Bonney to get news—Scouting on my own hook.
The conversation lasted a few minutes. I occasionally
used leading questions. The article only set out the sub-
stance of the questions and the answers as a whole. It is
decidedly condensed, using what I regarded the newsy and
important matter.
Q. The more novel and striking an article you could
get up in the way you handled the material, the more
successful your errand and article would be . A. Par-
tially, yes. That was present to a certain extent in the
way I compiled and condensed and wrote up the inter-
VIGW.
DEPOSITION OF M. K. BowFN :
I am superintendent of the defendant, and am over the
work of relaying the tracks on the east approach ; I had
nothing to do except to give orders to lay the rails to C.
E. Hall, track master; I told him girder rails.
Q. Did you have any knowledge or information that
anybody else than the city was connected with the repair-
ing of the east approach
(Objection; leading.)
A. I had no notification, no, at the time I gave the
order.
Q. When did you have any knowledge or information
that the complainants claimed connection with the repair-
ing? A. From the injunction bill.
Q. Did you receive any orders, directions or instruc-
87
177
178
179
180
181
tions from the officers of the City Company in regard to
re-laying of the tracks?
(Objection ; leading.)
A. No, sir.
Q. Were any directions received by you from any
officers of the company or given to you by any of your
subordinates in regard to the manner of re-laying the
tracks with regard to their place or location in the
street &
(Objection ; leading.)
A. I gave no order.
(Motion to strike out; not responsive.)
Q. The question also covers as to whether you received
any ? A. I received none.
Q. It is stated in some of the affidavits that the rails
on the west end of the east approach are what are called
“shoes; ” have you any knowledge as to how they came
to be placed there? A. I have no knowledge; I remem-
ber the car attempted to be run on the east approach by
the complainants; I saw the pieces in the newspapers—
Tribune and Record.
(Article set forth :) “To run on its rails.”
“Mr. McGann will test the ownership of street car
tracks. Who owns the street rails? This question has
been raised by the General Street Railway Company,
which says the rails belong to the city, and which will
begin running its cars on the tracks of the Chicago City
Railway Company as soon as a few preliminaries have
been arranged. The incentive is the desire of the Gen-
eral Company, otherwise known as ‘Larry McGann's
Railway Company, which runs its electric cars on West
22d street, to run over that street to the lake. McGann’s
company has developed the idea of regarding all street car
lines as public property, and running cars wherever the
88
tracks are convenient, and if the company operating these
tracks objects it can go to court for redress. * * *
‘When we get through with the matter,’ said Mr. Bon-
ney, ‘I think we will demonstrate that street car rails be-
long to the city just as much as paving blocks upon which
other vehicles run. Then it will follow that any licensed
street car may run on any track in the city, subject, of
course, to regulations so as not to interfere with traffic.”
(Article is repeated in O'Shaughnessy’s testimony,
infra, and abstracted there.)
184–5 Article of April 2d, above referred to, marked “For
186
187
188
189
identification, Defendant’s Exhibit C., J. M. Purcell.”
I know of no other notification except a telephone mes-
sage I received from one of my employes, that McGann
was going to run a car over our 22d street tracks, and
was starting out.
Q. That was on the morning when the car ran
A. Yes.
Cross-/ºeſtºn Žnation.
It was about 10 o’clock; the employe was telephoning
from the west side.
DEPOSITION OF JAMES O'SHAUGHN ESSY, JR.
I was a newspaper reporter on the Tribune in March
last. I procured the information for the article, “To Run
on its Rails,” and submitted the article to the city editor.
How much of the article I wrote as printed, I have no
knowledge now. Some of the expressions there I did re-
ceive in gathering news from C. L. Bonney. I procured
the material at different times. I wrote many articles.
One or two of the articles in this connection I did not
89
190
191
write. I do not wish to make a statement which I cannot
swear to positively. (To counsel for defense): I looked
the articles over this morning in your presence, as you re-
member, but not carefully.
Q. Will you state what portion of that part in quota-
tion marks you have at present a recollection of receiving
from Mr. C. L. Bonney : A. Well, only some of his
Sentences.
Q. State which ones? A. Here is an idea, not in
his language; I don’t think this was his language, because
I think I stated it more briefly : “It will follow that any
licensed street car may run on any track in the city, sub-
ject, of course, to regulations.” There was a good deal
of explanation he gave me with that. For instance, he
said that the tracks of all the inter-state roads, like the
trunk lines, could be used for the rolling-stock of other
roads when certain conditions were complied with—some
court proceedings or something else, I have forgotten what.
I think the tracks had to be condemned and they had to
pay a rental fixed by some jury, I believe, or some other
power ; and the idea he wanted to convey to me was that
street car companies should have no rights greater in their
rights of way than the steam roads; that other street car
companies might have the right to go in and lease rights
on the tracks, or something to that effect. Here he says,
“In the absence of a lease or contract, we have the alter-
native expressed in the voluminous word ‘otherwise,’’’
explaining a preceding sentence, which says, “We shall
have the right to operate cars over tracks not owned by
our company, upon such terms and conditions, by lease or
contract, as may be agreed upon between the companies
owning such respective tracks, or otherwise. In the ab-
sence of a lease or contract, we have the alternative ex-
pressed in the voluminous word otherwise.” He explained
to me that this word in their franchise, “otherwise,” gave
them considerable latitude. I don’t remember as to the
“voluminous,” whether the adjectives were his or mine.
Nearly all of the verbiage, even in this quotation stuff,
usually is not oftentimes the man’s who speaks, but the
9 ()
193
194
person's who writes it, because the space in newspapers is
limited, and it must be condensed. (Reading :) “We
have the state constitution to fall back on, which declares
that railways are public highways.”
Q. Do you remember of his stating that? (Objec-
tion; leading.) A. My recollection is not clear. I have
no positive recollection.
(Reading:) “We propose to use these tracks and others
if we see fit, and if we owe anything for the use of them,
we will pay for them : " I remember he did say: “If
we owe anything for the use of the tracks, we
will pay for them ; ” whether he proposed to get them
by going on to them or by going into court and get
awards there, I don’t remember. (Reading :) “If they
think they have any right to enjoin us, let them try it
and find out.” He conveyed that idea. * * * I am
not swearing to the language, except where I say so spe-
cifically. “First, Mr. Wheeler told us to wait until we
got our franchise; then he told us we were premature in
making overtures for a lease before we got the right to
cross the bridge. We got it and built our tracks as far
as Ashland avenue, where we were stopped by an injunc-
tion ; then Mr. Wheeler said wait, as the injunction might
be successful.” I have no recollection of his naming
Wheeler—he named somebody. * * * “When the
injunction was removed and the road completed to the
river, McGann and I called on Wheeler. He said the
bridge was too weak,’’ Yes, he said that all right—
meant too weak to run the cars over ; that the bridge was
not strong enough to hold up the cars or motors, or what-
ever else there was. “We deposited the $2,000 with the
city to make the required improvements in the bridge.’’
What I wanted to convey was, that Mr. Bonney said to
me that his company had this bridge, or its approaches, or
both, or something else that it had reference to, or the
substructure, strengthened or repaired, or made new—
or something like that, and I think he said it cost him
about $2,000, and his company paid for this improvement,
and I think that the city did the work and they remuner-
ated the city for it. -
9 |
195
196
The WITNESS (reading): “We opened negotiations for
a lease of the tracks from 22d street bridge to
Clark and Washington. * * * * I don’t remember
as to that. * * * He also gave me the idea it was
finally the intention to get down town ; that is, east to
Clark and down Clark to Washington. (Reading): “For
several months he entertained us delightfully without
getting any nearer to what we wanted.” I think that is
all right. (Reading): “We insisted on an answer, and
about December last he told us the contract of the City
Company with Yerkes was such that it prohibited any
such contract or lease as we desired.” ” * * This, I
suppose, very nearly conveys the idea, but I don’t re-
member the exact language. The idea meant that the re-
lations between the City Company and the Yerkes Com-
panies were such that they did not care to or had not a
right to. * * * (Reading): “This left the inference
that we were to be frozen out and there was, of course,
nothing for us to do but to look out for ourselves.” Yes;
I got that idea, I guess, about as I got it from him.
(Reading): “In doing this we may be the means of re-
turning to the public some of its rights which have been
preempted by the street car companies.” I don’t know
that he said that, but be meant to convey to me that in
establishing this right, secure the privilege of running
over the tracks of other companies, by lease or court
order, or something else, it would be a public benefit, be-
cause it would result in destroying street car monopoly.
He said there was enough profit in the business to satisfy
him without having a monopoly on it, and there would be
a great public benefit if he established these rights, etc.
Q. Did you ever see him after this article was pub-
lished 4 A. Yes; because I wrote the account of the
smashing of the McGann car for the Tribune.
Q. Did he ever object to the accuracy of the interview
as published 8 (Objection ; leading.) A. I don't re-
member of his ever speaking of it. (Article offered in
evidence ; no cross-examination ; notion to strike out. )
92
199
200
201
202
DEPOSITION OF CHARLEs E. HALL:
I made an affidavit in this case ; I know Charles E.
Thomas; I saw him on 22d street the last of May ; I
never saw him, nor had any talk with him before that.
Q. Did you see Mr. Thomas at the City Railway office
in October, 1894% (Objection; leading; to this and suc-
ceeding questions.) A. No, sir.
Q. Did he, at the said company’s office, or elsewhere,
before the bill filed herein, tell you he was the General
Company’s engineer? A. No, sir.
Q. And that it was reconstructing the east approach
A. No, sir.
Q. Or that said company’s old rails were in the way
and that the General Company desired the City Company
to remove them 4 A. No, sir; I know about the repairs
to the east approach; I was there three or four times;
generally, notice about repairs to the east approach came
from the policeman on the bridge.
Cross-Jºram 'nation.
I know a gentleman who told me his name was Thomas :
I first saw him about June 1st or May 31st.
Q. You never saw him before that ? A. I don’t re-
member of ever see/ng hºn.
Q. Never saw him since then . A. I don’t know as
I have.
Q. Are you sure you have not? A. Well, I have
seen thousands of people in that time, but not to know
him since then.
Q. You saw thousands of people before, also? A.
Yes.
93
203
204
Q. You could not be sure, from your recollection, how,
that he was not among the thousands of people whom you
saw before ? A. I would not be sure that I saw him, be-
fore, no.
Q. When did you see him—you went for the purpose
of seeing him? A. Yes.
Q. And that prepared you to place him and recall
him $ A. Yes.
Q. Would you be just as sure of any casual interview
as you would of an interview that you had with a man
that you went to meet for the specific purpose of meeting?
A. I think so ; yes.
Q. Would you be just as sure of what occurred at the
casual interview as at the interview that you went for the
purpose of holding 7 A. Yes, if my attention—
Q. Never mind about that ; answer the question yes
or no ; then you may make all the explanation that coun-
sel may see fit to call out, but the question you may an-
swer yes or no.
Mr. WILSON : Answer it in your own way ; do not fol-
low his instructions about how you answer his questions.
A. Yes, sir.
Mr. STARR: You will take your directions not from
counsel, but from the commissioner under the direction
of the court.
Mr. WILSON : And you will not take them from the
counsel on the other side. When the counsel tells you
you shall answer so and so, you need not take your direc-
tions from him.
Mr. STARR : I guess sufficient has been said of that
character.
94
205
206
Judge GRINNELL : You might also suggest that Starr
acts like a boy. (Remark of counsel specially excepted to.)
WITNESS: I was present on the east approach when it
was being reconstructed ; I was not on the bridge when it
was being reconstructed.
Q. Never went on the bridge? A. I think the work
was done ; I think at the time that I went over there to
see what was wanted there at the east approach, I think
the bridge was completed. I went across it later on, after
the repairing of the east approach ; I have been across it
many times ; I did not go across it in the fall of 1894 till
after the east approach had been repaired ; the last time I
was across there was no rails there and no work there ;
when I went there I went up to the end of the east ap-
proach and talked to the foreman of the bridge gang.
They were repairing that approach ; I went right up to
the end and stood there ; the last time I was there before
that was three weeks before, and there was nothing oc-
208
209
curring. I talked with the foreman.
Q. Did you talk about the east approach being re-
constructed? A. Well, putting it in that way, I don’t
expect I talked it in that way, but I had business there,
and I did my business.
Q. But you did not talk about the subject of the east
approach being repaired or reconstructed ? A. Yes, sir;
I did. -
Q. With this city foreman? A. Yes.
Q. Anything said about when they would get through
A. No, sir.
Q. Or how long they had been at work 4 A. No,
SII’.
Q. Or about the state of the work : A. Yes, he told
95
2 || 0
me they were putting in shores under there, that is up-
rights, and new timbers where the old ones were rotted
out, and making repairs on the east approach.
Q. Anything about the cost of it? A. No, sir; I
asked him what—
Q. Never mind that?
Judge GRINNELL : What is that?
Mr. STARR : The witness belongs to me for the
present.
Judge GRINNELL : Let him complete that answer on
my suggestion.
Mr. STARR: No ; he need not complete it on your
suggestion.
Mr. WILSON : You cannot help yourself.
(Special objection to the remarks of counsel and re-
quest that the commissioner check counsel therein.)
Mr. WILSON : This happens to be a notary ; he is to
take down what is said.
Judge GRINNELL : Now, Mr. Hall, please complete
your suggestion.
Mr. STARR: He need not ; Mr. Wilson will have his
opportunity at the proper time and place.
Judge GRINNELL : Now, Mr. Hall, complete your
sentence, and I wish you would start it.
(Special objection to counsel prompting the witness
and request to the commissioner to adjourn the
hearing until the point can be passed upon.)
WITNESS : I asked the gentleman what he wanted of
me, and he asked me—
Mr. STARR : Never mind.
96
Judge GRINNELL : Go ahead.
(Special objection to interference with the cross-
examination.)
Judge GRINNELL : I want that sentence completed.
WITNESS: He said he wanted me to give him centers.
Mr. STARR: Counsel for defendant are losing sight of
their duty both as lawyers and as gentlemen—interfering
with the cross-examination of the witness, and making
211 contemptuous comments upon counsel for complainant.
(The colloquy between Judge Grinnell and Mr. Hall
is objected to, and a motion to strike out entered.)
WITNEss: I first learned of the work on the east ap-
proach from an employe in our office; I can't tell who ;
I never had any information from anybody else except
212 this unknown employe and the man on the bridge, on the
subject.
Re-direct Fºam invaſion.
It was one of our employes; he did not tell me how he
got it; he told me the city was repairing the bridge, and
I was to come over there.
Judge GRINNELL : Repairing what? A. The east
approach.
(Objection; suggestive.)
2 15 DEPOSITION OF FRANK R. GREEN:
I am secretary of the City Company, and have charge
of its books.
Q. Do you know whether the company received no-
tice from the complainant that they were about to run a
car over the City Company’s track'
97
216
217
218
220
221
(Objection; leading.)
A. I received no notice.
Q. Was your attention called to the newspaper articles?
(Objection ; leading.)
A. Yes ; I saw the articles in the Tribune.
Q. Do you know of any other notice? A. That is
the only notice I had.
DEPOSITION OF LAwTON C. BONNEY:
Called as a witness on behalf of the defense and sworn,
and then the examination of him was abandonded.
DEPOSITION OF JULIUS S. GRINNELL :
I am general counsel of the City Company. I had no
motice of the intention of the complainants except from
the Tribune and Record articles in evidence. Was the
only notice I ever saw or heard of, except that I have had
indefinitely in mind that I read something about it at that
time in some other paper. I know of no other notice than
this.
Certificate of notary.
Recital of proceedings in this cause, decree of the court,
exception by counsel for complainants, signature of Hon.
M. F. Tuley, judge, to certificate of evidence.
Map of the City of Chicago marked “Complainant’s
Exhibit 1.”
Appeal bond.
Certificate of Frank J. Gaulter, clerk of the Circuit
Court.
Assignment of errors, which are as follows:
98
ASSIGNMENT OF ERRORs.
1. The court erred in rendering a decree in favor of
defendant in the court below.
2. The court erred in not rendering a decree in favor
of complainants in said court.
3. The court below erred in dismissing said bill for
want of equity at the cost of complainants.
Other manifold errors appearing on the face of said
record and in the proceedings thereunder. *
PECK, MILLER & STARR,
Solicitors for Appellants.

Cal. No. 146. 2, Gen. No. 5868.
IN THE
APPELLATE COURTOFILLINOIS,
FIRST DISTRICT.
CHICAGO GENERAL RAILWAY
COMPANY.,
$ppe!anſ, ( &ppeal from
Superior, Coo?.
U.S.
JOHN SPRY LUMBER COMPANY, }
3/ppellee.
Brief and Argument.
FREDERICK S. McCLORY,
Attorney for Appellant.
CHICAGO,
PRINTED BY THE CHICAGO LEGAL NEWS COMPANY, 87 CLARK STREET
1895,
------ - - - - ------------------ - - - - - - - - - - ---
IN THE
BAppellate Court of Illinois,
FIRST DISTRICT.
CHICAGO GENERAL RAILWAY
COMPANY.,
US &ppellant, ( 34ppeal from
g gº Superior, Cook.
JOHN SPRY LUMBER COMPANY.,
31ppellee.
BRIEF AND ARGUIMIENT.
STATEMENT.
This was an action of assumpsit. The declaration set
up a private property interest in certain railway tracks
constructed within Twenty-second street, Chicago, and
seeks to recover “just compensation " for the use, occupa-
tion and obstruction of such tracks by appellee in trans-
porting over such tracks four thousand (4,000) loads of
lumber and other materials to the damage of appellant in
the sum of $1,000. A demurrer to the declaration was sus-
tained and the case dismissed by the Superior Court Judge.
ARGUMENT.
We adopt the language, below quoted, of the Circuit
Judge in deciding the case of the Chicago General Rail-
©
2
way Company v. Chicago City Railway Company, Legal
News, August 10, 1895, as our argument in this case. In
that case, which is also on hearing in this court at its
present term, the prayer of the bill was for an injunction
to restrain the defendant company from wrecking the cars
of complainant while in operation between Grove street
and the Chicago river, on a piece of track less than 300
feet in length, the substructure of which was paid for by
complainant. g
In that case the record did not present the question as to
whether the owner of the superstructure had received ade-
quate compensation, but the Question was as to whether the
owner of such superstructure could be enjoined from intimi-
dation of the traveling public by systematic riot and
wreckage where the alleged trespasser had not first pro-
ceeded by “condemnation" to ascertain the “just compen-
sation '' to be paid for the use of such superstructure. The
court there held that compensation by condemnation was a
prerequisite to use, such superstructure being private prop-
erty, which under the constitution could not be taken or
damaged without compensation paid before use. The
injunction was therefore denied.
In this case, however, appellant having neglected to
strike terror by wrecking the trespassing wagons of appellee,
adopted the less exciting method of commencing an ordi-
nary action at law for the recovery of the compensation
claimed to be due.
The easement of a railway company in the street is un-
doubtedly entitled to lawful protection, which need not
rest on a legal title to the rails, to the extent that “it is well
“settled that city ordinances must be reasonable and not
“oppressive.” (City v. Latham, 142 Ill. 476.) In the car
smashing case the complainant company (this appellant)
3
not only conceded the right of compensation but insisted
that adequate compensation by the disbursement of money
for construction of substructure had been made, or if not
adequate, the amount should be ascertained in a legal or
equitable proceeding brought for that purpose. The defend-
ant there insisted, and the court held, that compensation by
condemnation was a prerequisite to use, as such rails were
}
“private property " within the meaning of the constitution .
In this case appellant adopts the “private property" prop-
osition, which it disputed in the car smashing case,
otherwise these two cases will be found to be in complete
harmony.
In the car smashing case the circuit judge held: Legal
News, August 10, 1895, p. 425: “The railway company
“has obtained, not only a binding contract with the city
“under the decisions of our Supreme Court, but an ease-
“ment in the street, and has property right in the rails so
“laid and the user thereof, of which it can not be deprived
“except upon just compensation as ascertained (and paid), as
“provided by law. To hold otherwise would be to hold that
“the vast interests of horse railroads in this city, amount-
“ing to many millions of dollars, are held subject to the
“whim, caprice or “mercy’ of the city council.’’
“To protect the rights of ‘private property is the duty
“of all courts. In truth it may be said, that the continued
“existence of our civilization depends upon the protection
“ of ‘private property.’”
Page 424, 3d column: “It follows from these authorities,
“that the railway company has a property right and in-
“terest in the rails laid in the street, and in the use thereof,
“ of which it can not be deprived without just compensation
“first ascertained and paid.”
4
“It is unnecessary to exactly define the extent of this
“property right, as if it exists at all, it is entitled to pro-
“tection as private property, which can not be taken for
“public use without compensation.’’ g
“The property of a corporation can no more be taken
“and given to another corporation for public use, than can
“the property of a private individual be taken and given to
“a corporation for public use.” $
“Corporations stand before the law on the same footing
“as natural persons, and are entitled to the same protection
“of their property in every respect, no less, and no more.
“Property belonging to a corporation is as much ‘private
“property as if the same belonged to a natural person.”
On page 424, 1st column: “If just compensation has not
“been made and is a prerequisite to the exercise of the right
“given by the ordinance, and there is no consent or con-
“tract or estoppel upon the defendant, then the complan-
“ant, in its attempt to run its cars on defendant's tracks,
“was a mere trespasser.”
On page 423, 2d column: “This court is not called upon
“to express an opinion as to the conduct of the defendant
“company in destroying the complainant's car, as this is
“not the forum in which (for that act) complainant's must
“seek redress. This court can only consider that act of
“defendant company as a circumstance tending to show the
“intention of the defendant to make all the resistance it can
“to any attempt of complainants to exercise the right
“claimed by them to operate their cars over defendant’s
“tracks.” *
On page 424, 4th column: The authorities cited which
tend to sustain the contention, “that a railroad occupying
“ under a license to lay its tracks in a public street, thereby
“acquires no ownership or property rights in the streets,
5
“ and that such tracks, when laid cease to be private prop-
“erty; that a city can authorize one railroad to use the
“tracks of another railroad laid in the public streets, and
“that when compensation is to be paid, it may be ascer-
“tained in the mode directed by ordinance or by court of
“chancery, but the cases most directly bearing upon the
“ points directly in issue in this case, are from foreign States,
“ and do not commend themselves to the judgment of the
“Court.”
On page 424, 1st column: “It is provided in the bill of
“rights which may be said to be the soul of the constitution
“that private property shall not be taken or damaged for
“public use without just compensation; compensation when
“not made by the State shall be ascertained by a jury in the
“manner provided by law.”
Sec. 1517 of the City Code says: “The cars shall have
“the right to the tracks as against any person, carriage, ve-
“hicle or incumbrance put, driven or being thereon with a
“view to delay or embarass the progress of the cars; and,
“no person shall obstruct the said tracks, or obstruct or pre-
“vent the cars from running or progressing thereon by
“placing, driving or stopping or causing to be driven at a
“slow pace or stopped, any vehicle or any obstacle in, upon,
“across, along or near said tracks in the way of any car, if
“there shall be an opportunity to turn off after being noti-
“fied by the ringing of the car bell, under a penalty of $5.”
The finding of the circuit judge in the car smashing
case, that the owner of a track is entitled to compensa-
tion as a prerequisite to its use, considered in connection
with the dismissal of this Spry case by the Superior Court
judge who held that the owner of a track is not entitled
to compensation at all suggests that as the Spry wagons
6
on appellant's tracks were “mere trespassers” appel-
lant's proper recourse was to wreck such wagons
with crow bars and sledge hammers and not seek a remedy
in the laws by an action for compensation; any fine
which possibly might have been inflicted upon the em-
ployes of a railway company for wrecking such trespass-
ing wagons would be merely nominal and willingly paid
by the company for the immese satisfaction of inflicting
its own punishment through its own agencies. In obstruct-
ing appellant's tracks appellee was guilty of a crime under
the penal provisions of the city code above stated, and any
punishment which appellant might have decreed its em-
ployes to execute would be considered, as said in the car
smashing case, only “a circumstance tending to show the
“intention of the railway company to make all the resistance
“it can to any attempt of appellee to exercise the right
“claimed to operate on its tracks.”
The Supreme Court said in Belleville v. Horse Ry, 152 Ill.
186, “that if the grant is for an adequate consideration
“and is accepted by the grantee, then the Ordinance ceases
“to be a mere license and becomes a valid and binding con-
“tract, and that the same result is reached where, prior to
“revocation, the license is acted upon in some substantial
“manner, so that to revoke it would be inequitable and un-
“just.” + “ ” “There is nothing in the case that would
“justify us in overturning the settled law of this State as
“announced in a long list of decisions. The ordinance
“was a contract, and one under which appellee has vested
“rights.” º -- -
We are aware that the Supreme Court of Illinois in this
Believille case (page 185,0iting a long list of Illinois decisions)
held that “the grant by the city is a mere license and not
7.
a “franchise,” but the nice distinction involves nothing
more than the origin of the grant and not its scope or valid-
ity. It is immaterial whether the rights of this appellee are
labeled “franchise,” or “license;’’ it nevertheless remains
undisputed from the Dartmouth College case, decided in
1819 to the Belleville case, decided in 1894, that such rights
are “contract ’’ rights with vested interests which can not be
taken, except with compensation by condemnation. To use
an expression of the chancellor in the car sumashing case,
“It is doubtful whether the constitution (of 1870) added
“anything to the law.”
The taking of private property, however, is limited to a
taking for public use. The Spry Company is not engaged
in a public business. It would have no standing in a condem-
nation proceeding, not having any power of eminent do-
main. *
If it had no legal right to use appellant's tracks without
first making just compensation, in entering upon the
same it was in the position of a burglar and might have
been treated as such. If it had a legal right, expressed or
implied, it was subject to appellant's remedy at law for use
and occupation. This case is the first of many like cases
which will be commenced, and the ultimate ruling of the
court is therefore of controlling importance to “the vast in-
terests of horse railroads of Chicago amounting to many
millions of dollars.” The right to use tracks without con-
demnation does not rest on the style of the vehicle seeking
such use. It is immaterial as to how many spokes may be
contained in the wheels, or whether such wheels may have
a flange or not. These are mechanical questions and not
questions of law—questions of method, not questions of
principle.
The extent to which persons may trespass upon the
tracks of appellant will also become an element in accident
cases, and will shift the burden of proof, thus reversing
the rule which has heretofore prevailed.

º .9%, (ſôuax awaco, ºva, c/ºn 2006, eſ, the** –0/Rſ.
(or fixo~... that Attoo... ake
/www.oved. aſ tº */w "tº 21 tº ºra“,
ſia,04 tº ſºve ove, 6.4% Aºtºt at ti, kaſz y
(macſ, {xtº, wrºtt…. tº a...cºntº, 2. tſet Vvv

Award ^\}~ (ow- ! ) , §10. tº q (..
8
This case is submitted with great confidence that this
court will approve the policy of appellant in orderly pursu-
ing its action at law for compensation; that the court will
reverse this case so that appellant may have its claim heard
in a court of justice; that the law on the questions involved
may be so expounded that appellant will not find its remedy
at court denied, and not be remanded to riot and destruc-
tion to adjust the difference which exists between it and its
unreasonable adversary.
FREDERICK S. McCLORY,
Attorney for Appellant.

*
* 2. t •
• * -- - : * , - * r ~ x .** k
* * * § r ---
- r”
t *- _ - x * - - -
àle "N0 • * *
A. tº yuze º - - * - , *,
º - } - ..s
§ * %. & * - - * -. -
-- A. i.
* - t
* • * *- : *
y *
--- -> * # - -
s
. . . . . . Gen. No. 5868.'
| APPELLATE COURTOFILLINOIS,
October TERM, 1895.
CHICAGO GENERAL RY. CO.,
U. 31pp ellant, 31ppeal from -
JOHN SPRY LUMBER CO, Cook Superior.
3/ppellee.
Abstract of Record.
FREDERICK S. McCLORY,
Att'y for Appelland.
CHICAGO,
PRINTED BY THE CHICAGO LEGAL NEWS COMPANY, 87 CLARK STREET
- !895,
IN THE
BAppellate Court of Illinois,
FIRST DISTRICT.
OCTOBER TERM, A. D. 1895.
CHICAGO GENERAL RY. CO.,
U 31ppellant, | 21ppea? from
JOHN SPRY LUMBER CO., Cook Superior.
21ppellee.
ABSTRACT OF RECORD,
#.
1 PLACITA.
2 Declaration of Chicago General Railway Co., filed
in Superior Court, Cook County, September 7, 1895:
3 That appellant is operating a railroad in, upon
and along Twenty-second street, under an ordinance
of the city, which was duly accepted, whereby a valid and
irrevocable contract was made between said city and appel-
lant, the terms of which could not be altered except upon
consent of appellant.
That appellant held an easement and vested right in said
street and a private property right in the rails, railway
materials and railway tracks, with the right to use same, of
2
which it could not be deprived except upon just compensa-
tion, ascertained and paid as provided by law.
That neither appellee or any other person had nor could
acquire, without ascertainment and payment of compensa-
tion, any right to use said rails or tracks either to the ex-
clusion of or in common with appellant.
4 Notwithstanding, since November 1, 1892, without
having obtained, by condemnation or otherwise, any
right to use said rails appellee entered upon, used and oc-
cupied said rails and tracks in transporting 4,000 loads of
materials to the wear, tear and damage of said rails, tracks
and supports thereof. That said tracks, rails, contract,
easement and property rights are of the value of one mil-
lion dollars.
That by said use of said tracks appellee obstructed the
same and prevented the cars of appellant from running
thereon, contrary to the ordinances.
5 That a reasonable compensation for said use, occu-
pation and obstruction would amount to $1,000.
7 General demurrer, September 18, 1895.
9 Order September 28, 1895, sustaining demurrer,
dismissing suit, allowing appeal, bond $250, 20 days.
11 Appeal bond, filed September 28, 1895.
14 Certificate of clerk of Superior Court.
15 AsSIGNMENT OF ERRORs.
1. Superior Court erred in sustaining demurrer.
2. In not overruling said demurrer.
3. In dismissing declaration.
4. In rendering judgment for costs.
5. Otherwise irregular and contrary to law.
FREDERICK S. McCLORY,
Attorney for Appellant.
“Debsism is Debsism, and anarchy is anarchy, no
matter in what guise they may masquerade. The
rioters should have been arrested for riot, and should
be punished for riot to the utmost limit of the law."
Editorial, Z0s .4/lſ/e/es 777ſles.
~"
*>.
STATE OF *}.
Coun'ſ Y of CoOK.
CIRCUIT COURT FOR COOK COUNTY.
CHICAGO GENERAL RAILWAY COMPANY )
vs. . < Trespass.
THE CHICAGO CITY RAILWAY COMPANY.
Declaration.
PECK, MILLER & STARR,
C. C. & C. L. BONNEY and
LYMAN M. PAINE,
Attorneys /or Plaintiff.
CHICAGO :
Printed by the Chicago Legal News Company.
1895.
STATE OF *}.
County of Cook.
CIRCUIT COURT FOR COOK COUNTY.
-A-T I-1-A-TVNZ"-
To THE MAY TERM, A. D. 1895.
CHICAGO GENERAL RAILWAY
COMPANY
U.S. . } Trespass.
THE CHICAGO CITY RAILWAY
COMPANY.
DECLARATION.
The Chicago General Railway Company, which is a corpo-
ration duly organized under the laws of the State of Illinois;
the plaintiff in this cause, by the undersigned, its attorneys
complains of the Chicago City Railway Company, which is
also a corporation duly organized under the laws of said State,
defendant in this suit, of a plea of trespass with force and
arms, etc.
For that said plaintiff, before and at the time of the com-
mitting of the trespasses hereinafter specified, was a common
carrier of passengers for hire, in the city of Chicago in the
County of Cook and State of Illinois, as is hereinafter more
2
fully specified; and the West & South Towns Street Railway
Company, which was also a corporation duly organized under
the laws of said State then and there was the original grantee,
licensee and beneficiary, under certain ordinances theretofore
duly passed by the city council of the said city of Chicago,
wherein and whereby said last named company was authorized
to lay down, construct, operate and maintain a single or double
track street railway along certain streets and public highways
in said city of Chicago, including that portion of Twenty-
second street which is situated between the east line of Grove
street and the west line of Johnson street in said city and is
one of the public highways and lawful places of free common
travel and passage in said city; and said West & South Town’s
Street Railway Company had laid down and constructed, and
caused and procured to be laid down and constructed, a double
track railway along said Twenty-second street, between the
other streets aforesaid, and over the bridge across the south
branch of the Chicago river, by which said bridge that por-
tion of said Twenty-second street known as East Twenty-second
street is connected with that portion of said Twenty-second
known as West Twenty-second street; and had theretofore, to
wit, prior to the 4th day of April, A. D. 1895, caused its cars
to be operated by said plaintiff over said tracks in Twenty-
second street east of said bridge and to said Grove street and
westerly therefrom; and said Chicago General Railway Com-
pany had acquired by lease, as it lawfully might, the right to
use, operate and maintain said railway so built by said West and
South Towns Street Railway Company; and had in like man-
ner acquired the right to possession, control and use, in and
about the business of transporting passengers for hire
along said railway, of the rolling stock and equip-
ment of the said West & South Towns Street
Railway Company, including particularly the car hereinafter
specified as destroyed, and the said Chicago General Railway
Company was then and there engaged in operating said lines
of street railway and carrying passengers for hire; and the
portion of said lines lying, to wit, between Grove street and
said bridge including the terminal embraced within the east-
erly one hundred (100) feet thereof, all in said Twenty-second
3
street, were an important part of said lines, and the use there-
of and the transportation of passengers thereon was essential
to the full, complete and successful operation of said lines of
street railway; and said Chicago General Railway Company,
on or about the 4th day of April, A. D. 1895, to wit, at the
county aforesaid, having made all due preparation therefor,
took one of the cars so as aforesaid acquired and obtained
from the said West & South Towns Street Railway Company,
to wit, car described as No. 306, and with a team of horses
attached thereto, undertook to run said car from said Jefferson
street along said free public highway and place of common
and public travel and passage known as Twenty-second street,
across said bridge to said Grove street, and over said import-
ant and essential portion, as it lawfully might under its said
lease and the laws of this State and the ordinances aforesaid.
And said defendant, which was also then and there a
common carrier for hire of passengers along said Twenty-
second street, east of said Grove street, and along a great
many miles of other streets and public highways in said city
of Chicago, then and there, well knowing the rights of
said plaintiff in the premises, and that it had full and lawful
authority to run said car and other cars along said Twenty-
second street to said Grove street; nevertheless, without any
notice or information to said plaintiff, but secretly contriving
and intending to work great wrong, injury and destruction to
said plaintiff, had theretofore privately organized a feudal army
of about three hundred (300) men for the purpose of prevent-
ing said plaintiff from carrying out its lawful and laudable
endeavor to extend its transportation of passengers along said
Twenty-second street, as authorized by said city council; and
thereupon, when said car, so as aforesaid drawn by said team,
and being as aforesaid the property of the said plaintiff under
said lease, and then and there being in its use, occupancy and
control, was in said public highway and place of free, common
and public travel and passage, upon the right hand track of
said railway tracks therein, and at a point about, to wit, one
hundred (100) feet west of said Grove street and east of said
bridge; and while said car was in charge of the proper conductor
and driver of said Chicago General Railway Company; and
4
while said car was actually engaged in the transportation of
passengers along said Twenty-second street, the said Chicago
City Railway Company, by its said feudal army, under the
direction and leadership of the superintendent of said com-
pany, with force and arms, and with great hatred, malice and
ill-will, and for the wrongful, unlawful and malicious purpose
of destroying said car and depriving the said plaintiff of the use
thereof, and to prevent the running of other cars of said
plaintiff along said street, with great and excessive violence,
levied war against said plaintiff, and with divers wrecking
wagons, crowbars, hoisting-jacks, sledge-hammers, and other .
instruments of obstruction and destruction attacked said car,
and the team of horses by which the same was drawn, and
the persons in charge thereof, and detached said horses, and
kicked, beat, bruised and injured said horses, which were then
and there the property of the plaintiff, and thereupon seized
and impounded the same, and kept the same for the space of,
to wit, one hour, and drove away said persons; and thereupon,
with the instruments aforesaid, and with excessive force and
without right or lawful authority, wholly and utterly broke in
pieces and destroyed said car, and broke the wheels thereof
with sledge-hammers, and totally destroyed the said car, and
the furniture, machinery and equipment thereof, which were
of great value, to wit, two thousand dollars ($2,000). And
divers other wrongs the defendant then and there did against
the plaintiff, and against the peace and dignity of the people
of the State of Illinois, to the damage of the plaintiff, to wit,
at the county aforesaid. - - -
And plaintiff avers that said defendant then and there pre-
vented the plaintiff from running said car and conveying and
transporting its occupants and passengers aforesaid along said
Twenty-second street from the said point, about, to wit, one
hundred (100) feet west of said Grove street, on to the said
Grove street, and from the use and enjoyment of said portion
of said Twenty-second street; and thereby deprived the plaint-
iff of the proper use and Occupation of said highway and
greatly damaged the plaintiff and deprived it of great gains
and profits which would have otherwise accrued to it in that
behalf.
5
And the plaintiff further avers that while the defendant was
committing said wrongful acts and destroying said car as afore-
said, the said defendant, by its said superintendent and other
members of said army, openly and repeatedly threatened that
they would in like manner attack and destroy all and any other
of the cars of said plaintiff which it might attempt to run or
cause to be operated along said Twenty-second street, between
said bridge and said Grove street, and by said destruction of
said car and the threats aforesaid, the said defendant sought
to terrify the employes of said plaintiff, and to deter and pre-
vent them from carrying on said business of transporting
passengers for hire along said part of said Twenty-second
street; and thereby to cripple, injure and damage the plaintiff
in its said business; and said defendant, in violation of law, and
the rights and interests of the public, and against the peace
and good order of society, also then and there set up, alleged
and claimed for itself the exclusive right and privilege of keep-
ing and using said part of said Twenty-second street for its
own special purpose of so transporting passengers as aforesaid,
and to exclude all other persons therefrom; and said defend-
ant committed the aforesaid wrongs against the plaintiff, in
the assertion and attempted exercise of said alleged exclusive
right; and said defendant has since that time often repeated
and reiterated said threats.
And said plaintiffs further aver that the said railway tracks
upon which said car was moving when assaulted by defendant as
aforesaid, then and there were, and still are located upon and
supported by timbers and planking which were furnished and
put in place by said city of Chicago, at the expense of said
plaintiffs.
And the plaintiff further avers that the use, enjoyment and
operation of the said portion of their said right of way in said
Twenty-second street, between said Grove street and one
hundred (100) feet west thereof, is of great value to the
plaintiff, and essential to the complete and successful opera-
tion of the rest of their system of railways; and that said por-
tion constituted the eastern terminus of the plaintiffs’ right of
way; and that by the use, enjoyment and occupation of
said eastern terminus, and the operation of their business
6
therein, the plaintiffs would be enabled to carry for hire,
a large number of passengers, to wit, several thousand
passengers per day more than will seek such transportation
without the use of said terminus; and that the transportation
over the said plaintiffs' lines of railway, and over the said
bridge connecting the west and south sides at Twenty-second
street; and over the eastern terminus of the plaintiffs’ system
of railways is greatly desired by a large number of people
living along the line of the said right of way of the plaintiffs'
line of railway and the territory directly tributary thereto for
transportation purposes; and that the defendant, by depriving
the plaintiffs of the use of its said terminus, thereby deprived
the plaintiff of a large sum of money which it would have re-
ceived in car fares which would have been paid by passengers
who would have used said system with the said terminus.
And the said plaintiff further avers that the organization of
said force by said defendant, and the unlawful and riotous at-
tack upon and destruction of said plaintiff’s said property as
aforesaid, and the interruption and injury to said business as
aforesaid, by the said defendant, with force of arms as afore-
said, instead of appealing to the courts of justice for a remedy
for any supposed wrongs or injuries which it might pretend it
had suffered or which it might pretend were impending, con-
stitute a most pernicious and dangerous example of lawless and
anarchistic conduct, highly calculated to inflame the public
mind and lead other persons to resort to force and violence for
the redress of any real or fancied wrongs, instead of seeking a
remedy therefore according to the law of the land; and said
conduct of said defendant also tends to bring the plaintiff into
disrepute, and to injure its credit and business standing.
And the plaintiff further avers that the defendant, a cor-
poration as aforesaid, is possessed of the great wealth, to wit,
about seventeen millions of dollars ($17,000,000); and that
said defendant is in the continual receipt of great gains,
profits, revenues and income from its business of carrying
passengers for hire, and that said gains, profits, revenue and
income amount annually to a great sum, to wit, the sum of
about five millions of dollars ($5,000,000) or upwards,
And said plaintiffs further aver that they are entitled, ac-
7
Cording to law, to recover of and from the said defendant, the
sum of, to wit, fifty thousand dollars ($50,000) for injury and
damage to their property and business; and are also entitled
to recover of and from said defendant the further and addi-
tional sum of two hundred and fifty thousand ($250,000) dol-
lars, as exemplary damages for the hatred, malice and ill will
so as aforesaid shown by said defendant; and for the gross
and excessive violence, lawlessness and anarchy used by said
defendant in and about the destruction of the property of said
plaintiffs as aforesaid; and for the disorder and riot caused by
said assault and destruction; and also as a proper means of ad-
monishing the said defendant against any repetition of the un-
lawful and riotous conduct aforesaid; and also as a proper means
of deterring other persons who might otherwise feel permit-
ted, excused or justified by the lawless example set by said de-
fendant as aforesaid, in resorting to the like lawlessness,
anarchy, force and violence for a redress of any wrongs or in-
juries or what may be supposed to be such, instead of seeking
a remedy therefor in the courts of justice; and that in fixing
said additional sum the aforesaid great wealth and income of
the defendant should be considered, as well as its wrongful,
riotous, lawless and anarchistic acts aforesaid, and the enor-
mity of its wrongful purpose to injure the plaintiff, and antici-
pate and prevent any competition in said business.
SECOND Count.
And also for that heretofore, to wit, on or about April 4th,
A. D. 1895, to wit, in the city of Chicago and in the county and
State aforesaid, the said plaintiff was in the lawful and peace-
ful occupancy and use of the public street, highway and
thoroughfare, known as East Twenty-second street, in the city
aforesaid; that is to say of a part of said street which is situated
between the south branch of the Chicago river and a certain
other public street, highway and thoroughfare in said city
called Grove street, to wit, about one hundred feet west of
said Grove street; and that such occupancy and use then and
8
there consisted in the hauling, moving and operation along
said part of said street by said plaintiff, by a team of horses of
said plaintiff of a certain street car of said plaintiff which was
then and there known by the name of car No. 306, and that
said car was then and there in charge of the proper driver
and conductor of said plaintiff and was actually engaged in the
peaceful and orderly transportation of passengers for hire,
along said Twenty-second street, and that said car was then
and there moving upon a certain railway track, theretofore
laid in said public street and highway, and which constituted
a part thereof, and that while said car was so moving along
said track, the said defendant with force and arms wrongfully
and unlawfully and with great and excessive malice and vio-
lence, assaulted the same and took away the said team of
horses, and drove away the conductor and driver who were
in charge of said car, and thereupon, with wrecking wagons,
sledge hammers and other implements of obstruction and
destruction, broke in pieces and utterly destroyed said railway
car, which was of great value, to wit, two thousand dollars
($2,000); and thereby greatly injured said plaintiff and inter-
rupted and damaged its business and transportation of passen-
gers aforesaid. And divers other wrongs the said defendant
then and there did against the said plaintiff, and against the
peace and dignity of the people of the State of Illinois, to
the great damage of the plaintiff.
THIRD COUNT.
And also for that heretofore, to wit, on or about April 4th,
A. D. 1895, to wit, in the city of Chicago, in the county and
State aforesaid, the said plaintiff was, by and with the knowl-
edge, concurrence, acquiesence and consent of said defendant,
in the lawful and peaceful occupancy and use of the public
street, highway and thoroughfare, known as East Twenty-
second street, in the city aforesaid; that is to say of a part of
said street, which is situated between the south branch of the
Chicago river and a certain other public street, highway and
9
thoroughfare in said city, called Grove street, to wit, about
one hundred feet west of said Grove street; and that such oc-
cupancy and use then and there consisted in the hauling, mov-
ing and operation along said part of said street, by said plaint-
iff, by a team of horses of said plaintiff, of a certain street car
of said plaintiff which was then and there known by the name
of car No. 306; and that said car was then and there in charge
of the proper driver and conductor of said plaintiff; and was
actually engaged in the peaceful and orderly transportation of
passengers for hire, along said Twenty-second street; and that
said car was then and there moving upon a certain railway
track, theretofore laid in said public street and highway, and
which constituted a part thereof; and that while said car was
so moving along said track, the said defendant, with force and
arms, wrongfully and unlawfully, and with great and excessive
malice and violence, assaulted the same, and took away the
said team of horses, and drove away the conductor and driver
who were in charge of said car; and thereupon with wrecking
wagons, sledge hammers, and other implements of obstruction
and destruction, broke in pieces and utterly destroyed said
railway car, which was of great value, to wit, two thousand dol-
lars ($2,000); and thereby greatly injured said plaintiff and in-
terrupted and damaged its business and transportation of pas-
sengers aforesaid. And divers other wrongs the said defend-
ant then and there did against the said plaintiff, and against
the peace and dignity of the people of the State of Illinois, to
the great damage of the plaintiff. -
And the said plaintiff avers that the said railway track, upon
which said car was moving when the same was so as aforesaid
assaulted and destroyed by the said defendant, had been a short
time before said assault and destruction, reconstructed and re-
paired by and through the joint action of said city of Chicago,
and said plaintiff and said defendant; and that said plaintiff
had paid a large part of the expense of such reconstruction
and repair, with the knowledge, concurrence, acquiesence and
consent of said defendant.
10
By means of all which said wrongs and trespasses the plaint-
iff says that it has been greatly injured by the said defendant,
and has sustained damages for which the said defendant is
liable, to a large amount, to-wit, the sum of three hundred
thousand dollars ($300,000), and therefore it brings suit, etc.
- PECR, MILLER & STARR,
C. C. & C. L. BonREY and,
LYMAN M. PAINE,
Attorneys for Plaintiff.

TERM No. 4589. (2 : GEN, No. 110378... .
sTATE o
IN THE
*
|CIRCUITCOURT OFCOOK COUNTY ||
JOHN VANDERPOEL AND OTHERs
U.S. Bill for Injunction, .
| THE WEST AND SOUTH Towns Filed December 16, 1892.
STREET RY, CO.
ANSWER OF DEFEND ANT.
FILED J.A.N.UARY 13, 1893.
Joseph P. MAHONEY,
LYMAN M. PAINE,
Solicito's for Defendant.
C. C. Bon NEY,
Of Counsel.
CHICAGO:
print ED BY THE CHICAGO LEGAL NEWS COMPANY., 87 CLARK STREET
1893 :
r ** - - *: - ...!
- - ... * - -- , - t- - * . - ---
. . - - - * - -
- . : - - Y- - -
- . . * , $. º -- - ~ J - - ſ
* • - * -- - - • * -- ** *
t * . 4 * 2. - - * - .
. . - - , - |f - '-
- d - - - - - - g
- } * L - . . . .”
- - s * - - º:
- ‘t *. - w f - - - [.
- - • - J
STATE OF º -
> SS.
COUNTY OF Cook.
IN THE
CIRCUIT COURT OF COOK COUNTY.
Trn Charlcery--
BILL FOR INJUNCTION.
JOHN VANDERPOEL, JOHN VAN-
DERPOEL, J.R., AND STEPHEN º)
B|RUND AGE | Filed December 16, 1892.
U.S. y No. 110,378.
- i Term No. 4,539.
TI I E WEST AND SOUTH TOWNS \ Angujer Filed January 13, 1898.
STREET RAILWAY COMPANY.
—,
ANSWER OF DEFEND ANT.
The answer of the said defendant to the bill of complaint
filed in this cause:
This respondent, answering by its president and under
its corporate seal, and protesting that the said complainants
have not in and by their said bill of complaint made or
stated such a case as doth or Ought to entitle them to any
such relief as is therein sought and prayed for, and saving
all exceptions that may be had or taken to the manifold
errors and insufficiencies in said bill of complaint con-
tained, and particularly the exceptions below specified, to
wit:
2
First exception. That injunction is not a proper and
lawful remedy for any such supposed wrongs and grie-
vances as are set forth in said bill of complaint; but that
the remedy therefor, if any such wrongs and grievances in
fact exist, is by the proper action at the common law.
Second exception. That the said bill of complaint shows
upon its face that if all the matters and things which are
therein alleged were true in matter of fact, but the truth
whereof is denied by this respondent, the said complain-
ants might have an adequate remedy for all damages
thereby suffered by the proper action at the common law.
Third exception. For that the substance of said bill of
complaint is that this respondent has usurped and intruded
into, and unlawfully holds and executes a certain franchise
therein described; and is exercising certain powers not
conferred by law, and that by the laws of this State, if the
claim aforesaid were true, which is not admitted, but is de-
nied by this respondent, the proper remedy should be
sought by an information in the nature of a quo warranto,
and not by bill in equity.
Fourth exception. That the pretended right to file said
bill of complaint rests according to the frame of said bill,
largely upon certain supposed special damages suffered by
said complainants; whereas, under the laws of this State, if
the claim made by Said complainants were true, the remedy
would not be by bill in equity, but it must be sought either
by the proper action at the common law, or by petition
filed under the statute of eminent domain.
Fifth exception. For that the chief matters on which
said complainants seek the judgment of this court are of a
political nature, and wholly within the jurisdiction of the
political authorities of the city of Chicago, and this court
has no jurisdiction to reverse or set aside the action of the
said city authorities.
Sixth exception. For that said complainants, on the
face of their said bill, have no interest in the construction
or non-construction of the line of Said railway, except as the
same relates to the premises which they claim to own, and
3
the right of said complainants to object to the construction
of said railway is limited by law to the particular mile of
said railway in which said premises are located.
Seventh exception. For that said bill of complaint is
otherwise manifestly insufficient, uncertain and contrary to
law and equity. -
Nevertheless, not waiving said exceptions, nor any or
either of them, but insisting upon the same, and claiming
the benefit thereof as fully as though it had demurred to
said bill of complaint, this respondent, in support of said
exceptions, and among other things, to rebut and avoid any
presumption that might arise from the constructive admis-
sion of the truth of all or any of the matters in said bill of
complaint contained, for answer thereto, or so much thereof
as may require any answer from this respondent, answer-
ing, says: - - -
That whether said complainants, John Vanderpoel and
John Vanderpoel, Jr., are jointly the owners of the said
lots described in said bill of complaint, this respondent
doth not know, and can not admit, but this respondent
denies the same, and puts the said complainants to strict
proof thereof, and also to strict proof respecting the pre-
tended improvements existing upon said premises, or any
part thereof. - -
And this respondent, further answering, says that it is
true that this respondent is acting as, and claims to be, and
in fact is, a corporation, duly organized under the laws of
the State of Illinois, for the purpose of constructing and
Operating the street railway, intended to be described in
said bill of complaint, and that the substantial and chief
facts relating to the construction of said railway, so far as
this respondent is advised, it is material that the same
should be set out in this answer, are as follows, that is to
Say:
a. That the final certificate of the legal organization of
this respondent as a corporation under the laws of this State
was issued from the office of the secretary of state of this State
on or about August 22, A. D. 1891, and filed for record in the
4
office of the recorder of Cook county, in said State, on or
about September 11, 1891, at 1 o'clock P. M., and recorded
in book 42 of corporation records, page 620.
b. And that the object for which this respondent was
incorporated, was, and is the construction and operation of
a horse, electric, cable or dummy railroad on any or all
such streets or alleys within the present or the future limits
of the city of Chicago, as may be granted to it by the said
council of said city. --
c. And that on the day and year last aforesaid, as required
by the statute in such case made and provided, this respond-
ent caused a notice to be published, that on Monday, Sep-
tember 21, A. D. 1891, at 7:30 P. M., or as soon thereafter
as a hearing might be had, this respondent would present
its petition to the corporate authorities of the city of Chi-
cago, at the council chamber in the City Hall of said city,
for consent to locate, construct and operate a certain
railroad on Twenty-second street, beginning at Portland ave-
nue, and extending to Crawford avenue, also on Lawndale
avenue, beginning at Twenty-second street, and extending
to Thirty-fifth street; which said notice was duly published
in two newspapers of general circulation, published weekly in
said county and State, both of which were and are in gen-
eral circulation in the particular neighborhood in and
through which it was ſproposed to construct and operate
said railway. -
d. And that accordingly, at the time and place men-
tioned in said notice, this respondent presented to the said
city council of the city of Chicago its petition for an ordi-
nance substantially as proposed in Said notice; which said
petition was received by said council and referred to its
committee on streets and alleys for the west division of said
city. And this respondent also says that in and by said
petition it was shown in substance that the owners of more
than a majority of the frontage of each mile and fraction
thereof in said proposed line of railway had consented to
the construction of the same. -
e. And that on or about October 19, A. D. 1891, a pe
º
d
tition of the owners of property fronting on the line of said
proposed railway was presented to said city council of the
city of Chicago by one of the members of said council, to-
gether with a draft of an ordinance granting the authority
prayed for in and by said petition, and that thereupon said
petition of property owners was duly referred to the depart-
ment of public works for verification, with a direction after
such verification to send the same to the committee on
streets and alleys for the West division of said city; and said
draft of ordinance was also thereupon duly referred to said
committee for their report thereon. r - -
f. And that afterward, to wit, on or about December 7,
1891, the commissioner of public works made his report
to said committee, showing that from the east line of
Grove street the owners of the land, representing more
than one-half of the frontage of each mile and of each
fractional mile of So much of the street as was sought to be
used for railway purposes, had petitioned that respondent
be granted the right to use such portions of said street as
were mentioned in said report; wherefore, this respondent
was entitled to an ordinance for the construction of such
railway as was subsequently authorized by the ordinance
hereinafter described.
g. And that afterward, to wit, on or about December
21, A. D. 1891, a further petition of property owners for
the construction of the said proposed railway was pre-
sented to the city council of the city of Chicago, praying
the passage of the ordinance granting authority to the
West and South Towns Horse Railway Company to con-
struct the street railway proposed by them, which said last
named petition was thereupon duly referred to the com-
missioner of public works for verification, with a direction
after such verification to transmit the same to the commit-
tee on streets and alleys of the west division of said city.
h. And that on or about January 4, A. D. 1892, a second
draft of an ordinance of said council for the construction
of said proposed street railway was presented to said com-
6
\
mon council, and duly referred to the said committee on
streets and alleys for the west division of said city.
7. And that on the day and year last aforesaid, it was
duly ordered by said city council, then in session, that the
said committee on streets and alleys for the west division
of said city be instructed to report at the next regular
meeting of the council on the ordinance of the West and
South Towns Railroad Company, theretofore referred to
them.
j. That on or about January 18, A. D. 1892, the said
committee on streets and alleys for the west division of the
said city of Chicago held a formal and open public hearing
on the matter of Said proposed ordina nee, at which full
opportunity was given to all and any persons who might be
concerned therein, to attend and make any objections which
they might see fit to present; but that so far as this respond-
ent knows or believes, neither said complainants nor any
or either of them attended on said hearing, nor otherwise
made any objections to the proposed ordinance. Said
meeting was held in the Council chamber of the said city of
Chicago, and in the course thereof said committee decided
to place on file the proposed ordinance for the construction
thereof, and to adopt and recommend to the city council
for passage a substitute therefor, in conformity to the said
report of the commissioner of public works; that said com-
mittee thereupon adjourned, but on the evening of the
same day presented their said report, and submitted said
substitute so as aforesaid adopted by them to the said city
council for passage. -
k. And that thereupon said report and proposed ordi-
nance were ordered published, and action thereon deferred
pursuant to law, and said report and Ordinance were accord-
ingly published in full in the proceedings of said city
council of the date last aforesaid.
l, And that afterward, to wit, on or about February 1,
1892, a third petition of property owners for the construc-
tion of said railway was presented in a meeting of said
council of said city of Chicago, and duly referred to said
7
committee on streets and alleys for the west division of said
city. -
m. And that afterward, to wit, on or about February 8,
1892, the said report and ordinance so as aforesaid recom-
mended by said committee to said council, were brought be-
fore said council for its action thereon; and thereupon said
council, as under the laws of this State and the decisions of
the Supreme Court thereof it might lawfully do, on motion
concurred in said report, and by an unanimous vote passed
said ordinance, as more fully and at large appears in the
official report of the proceedings of said council on the date
last aforesaid, and which said ordinance, not having been
vetoed by the mayor of said city, became valid and effectual
by the lapse of time; without any objection thereto having
been made by or for the said complainants or any other
person, so far as this respondent knows or believes. -
m. And that afterward, to wit, on or about February
25, A. D. 1892, this respondent, having previously filed in
the office of the clerk of said city its formal acceptance of
the ordinance aforesaid, the same was thereupon, on the
day last aforesaid, duly presented by said clerk to said city
council, and upon such presentation was duly placed on
file.
o. And that afterward, to wit, on or about April 8, A.
D. 1892, this respondent duly filed the bond required by
said ordinance, the same having been duly approved by
the mayor of said city.
p. And that afterward, to wit, on or about April 28,
A. D. 1892, a permit for the construction of said railway
was duly issued by the commissioner of public works of
said city of Chicago, authorizing this respondent to con-
struct its said railway under said ordinance.
q. And that afterward, to wit, on or about September
3, 1892, this respondent, having spent much time and
means in preliminary preparations therefor, entered into a
contract for the construction of eight miles of the track of
its said railway, involving a large liability for the expense
thereof.
S
And this respondent further answering says that in pur-
suance of said contract it has proceeded with the construc-
tion of its said railway, and had, before the filing of said
bill of complaint, actually constructed more than five miles
of the track of its said railway. * ...
And this respondent further answering Says that having,
on or about November 15, A. D. 1892, completed the con-
struction of five miles and five hundred and forty four feet
of the track of its said railway, it thereupon caused the
track aforesaid to be duly surveyed and measured and a
proper certificate of such construction to be made; and
notice thereof duly filed in the office of the city clerk of
said city of Chicago; and that afterward, to wit, on or
about November 21, A. D. 1892, said city clerk presented
said notice to the city council of said city, then in session,
which was then on consideration thereof, ordered to be
placed on file, no objection having been made thereto.
And this respondent further answering says, that by the
acceptance, without objection, by Said city council of the
evidence and notice so as aforesaid presented by this
respondent of its compliance with the terms and conditions
of the ordinance by which the construction of Said railway
was authorized, and within the time required by the terms
hereof, the corporate authorities of Said city accepted of
and from this respondent the amount of railway track so
as aforesaid constructed by it, in full Satisfaction of the
requirement of said ordinance in respect to such construc-
tion; and that neither said complainants nor any other
person or persons have or can now have any right to
object thereto; nor has this or any other court any proper
jurisdiction or authority to inquire into the same; for that
if said complainants, or any other person or persons inter-
ested in the matter of Said railway, had on or prior to the
first day of December, A. D. 1892, made or presented any
such objection to Said city Council, measures might have
been taken by this respondent to meet and overcome, or
otherwise provide for the same before the expiration of time
limited in said ordinance.
9
And this respondent further answering says, that as it is
informed and believes, and so states and charges the truth
to be, the complainants and each and every of them, had
personal notice of the intended application of this respond-
ent to said city council for an ordinance authorizing the con
struction of its railway as aforesaid; and that all the pro-
ceedings aforesaid were open and notorious in the neighbor-
hood in which the business of said complainants is carried
on, and this respondent further charges that they had
actual notice and knowledge of all and singular the matters
aforesaid, which were matters of common talk and general
notoriety in said neighborhood during the time when the
same were respectively transpiring,
And this respondent further answering says, that during
all the proceedings aforesaid, no objection whatever was ever
made by said complainants or any or either of them, or any
person in their behalf; but that so far as this respondent
knows or believes, said complainants respectively acqui-
esced in all the proceedings aforesaid, and by their failure
to make any such objection, and by such acquiescence con-
curred therein and consented thereto, and now are and
ought to be wholly and effectually estopped to file any such
bill, or set up any such claims or pretenses as are set forth
in their said bill of complaint.
And this respondent further answering says, that about
one thousand feet of the five miles of track aforesaid, are
laid in the particular mile of said railway in which said com-
plainants claim to be interested, and that before said one
thousand feet of track was so laid as aforesaid, two of said
complainants, to wit, said John Vanderpoel and the said
Stephen V. Brundage, personally went to the office of the
said company and there had a conversation with one of the
officers thereof in regard to the time when and the circum-
stances under which it would be most convenient for them
to have the track of said railway laid along the premises
which they claim to own, and that during said conversation
no objection was made to the laying of said track, but on
the contrary said complainants practically and substantially
1()
consented thereto, and ask to have their convenience con-
Sulted merely as to the manner of laying said track, which
Said conversation took place about six months prior to the
time of the filing of their said bill of complaint. -
And this respondent further answering says, that all and
singular the proceedings aforesaid, so as aforesaid had
before the city council of the city of Chicago, are of a politi-
cal nature and belong exclusively to the political depart-
ment of the government of this State, and that this court
has no jurisdiction to supervise and adjudicate concerning
the same any further than to ascertain whether there was
in fact an endeavor without fraud to comply with the pro-
visions of the laws and ordinances in such case made and
provided. -
And this respondent further answering says, that the
question whether there was a sufficient petition of property
owners to warrant the passage of Said ordinance, was a
question political in its nature, addressed to a political body
and subject to its determination, and that the determination
of said council that there was a sufficient frontage can
not now be impeached in this proceeding except by show-
ing that there was not any attempt whatever to comply
with the requirements of the law in that respect; and that
the action of said city council having been taken upon a
report of the proper officers showing an apparent compli-
ance with the laws and ordinances in that behalf, became,
when completed, binding and conclusive upon all con-
cerned for all of the purposes of this suit.
And this respondent further answering says, that if any
such deficiency of consent as is alleged and pretended in
and by said bill of complaint, had been brought to the at-
tention of this respondent before said committee of said
common council at the hearing before the same, or had
been brought before the said city council when said ordi-
nance was pending before the same for passage, this re-
spondent could, as it believes, readily and easily have pro-
cured any further consent to the passage of said ordinance
which might have been required, and that, by a failure so
| 1
to appear and make such objection, the said complainants
and all other persons have abandoned and waived the same
and become conclusively bound by the action aforesaid of
the said city council.
And this respondent further answering says, that it would
be a gross and intolerable injustice now to allow said com-
plainants, having stood by until this respondent had en-
tered into the contracts aforesaid, and made the expendi-
tures aforesaid, to seek to prevent the completion of said
railroad and involve this respondent in the loss which
would thereby be imposed. - -
And the respondent further answering says, that there is
and for many years past has been on and along said twenty-
second street, in front of the premises claimed by Said com-
plainants in their said bill of complaint, a certain railway
track, to the location, construction and use whereof said
complainants have not, so far as this respondent is advised
and believes, ever made any objection whatsoever; and that
under the constitution and laws of this State, and the ordi-
nances of the city of Chicago, in such case made and provided,
this respondent has, as it is adyised and believes, a full and
perfect right to use said track for the transportation of its
railway cars, to be used in operating its said railway, with-
out any consent of said complainants or any or either of
them, or any other persons claiming to be the owners of
lands fronting on so much of said street as is so in use for
railway purposes.
And this respondent further answering says, that the ex-
istence of said railway track in said street, and the use
thereof for the transportation of railway cars for many
years, fully authorized the said city council of Chicago to
grant to this respondent the right to lay its own tracks
along said street without any formal or express consent of
the owners of property fronting thereon, in case this re-
spondent should elect so to do, instead of exercising its
right aforesaid to use the said existing track for the trans-
portation of its cars.
And this respondent further answering says, that it is
12
informed and believes, and so charges the truth to be, that
the complainants are not the real parties complainant in
this case, but that the said complainants were employed by
a certain hostile and rival organization to bring this suit
for the purpose of harassing and annoying this respondent,
and preventing if possible the operation of its said railway;
and that said hostile and rival organization has undertaken
to pay the expenses of the litigation begun by the filing of
the bill of complaint in this case, and that so it will appear
from the evidence to be taken in due course in this cause;
which said last mentioned actings and doings of said com.
plainants and said hostile and rival organization are mani-
festly contrary to the statute in such case made and pro-
vided, and against the rules and practice of equity.
And this respondent further answering says, that if the
injunction prayed for in said bill of complaint, and tem-
porarily allowed on the recommendation of one of the masters
in chancery of this court, should be allowed to stand, it will
result in great injury and damage to this respondent, includ-
ing divers losses on its existing contracts for the completion
of said railway; and in losses of the profits which it would
derive from the speedy completion and operation of its rail-
way as it purposed and now desires to do, in time to receive
the benefit of the extraordinary business anticipated in con-
nection with the World’s Columbian Exposition, to be held
during the present year. And this respondent estimates
that such losses and damage may amount to so large a sum
that said complainants ought without delay to be required
to file their bond in the penal sum of one hundred thousand
dollars, with good and sufficient Sureties, to answer for such
losses and damages in case they should be suffered in con-
sequence of the suing out of said injunction.
And this respondent further answering says that it verily
believes and so charges the fact to be, that said bill of com-
plaint is wholly destitute of any substantial merit; and that
if the particular instances which are specified in said bill
of complaint, in which, as it is claimed by said complain-
ants, certain consents of property owners are irregular or
13
defective, were true in point of fact, which is not admitted
by this respondent, it would nevertheless be true, as this re-
spondent verily believes that there would remain the valid
consent of the owners of more than a majority of the front-
age of property along the line of said railroad, but this
respondent does not consent to enter into any litigation in
this cause in respect to the extent or sufficiency of such
frontage, but insists as aforesaid, that said complainants and
this honorable court are wholly concluded by the action of
the city council which is above set forth. And this respond-
ent, by way of further showing the unlawful and un-
reasonable character of the objections urged by Said com-
plainants, also says that said complainants, for the purpose
of attempting to impeach the consent of frontage property
owners to the construction of said railway, appear to have
included in their computations, certain property owned by
the city of Chicago, whereas the city of Chicago has given
its consent to its ordinance by the mere passing of the
same. And for the same purpose this respondent also says
that said complainants for the purpose of attempting to
impeach the right of this respondent to construct its rail-
way, appear also to have included in their computation
certain railroad rights of way, which under the constitution
and laws of this State are public highways, and are there-
fore to be excluded in any computation of the frontage con-
sent necessary for the construction of any such railway as
that of this respondent.
And this respondent also says that it wholly denies the
right of said complainants to appear in this honorable
court as the champion of the various individuals specified
by them in their bill of complaint as not having consented
to the construction of said railway, but who have never
made any objection thereto on their own behalf, nor ever,
so far as this respondent is informed and believes, authorized
said complainants to appear and make any such objection
for them.
And now having fully answered, this respondent prays
that the preliminary injunction so as aforesaid temporarily
14
allowed may be dissolved by this honorable court, and that
this respondent may be hence dismissed with its reasonable
costs in this behalf most wrongfully sustained.
WEST AND SOUTH Towns STREET RY. Co.,
[CORPORATE By CHARLEs L. BONNEY,
SEAL.] President.
JOSEPH. P. MAHONEY,
LYMAN M. PAINE,
Solicitors for Respondent.
C. C. BONNEY,
Of Counsel.
STATE OF Hº! g
County of Cook. Charles iſ. Bonney, of said county
. and state, being first duly sworn,
upon his oath, says: That he is the president of the West
and South Towns Street Railway Company, by which the
foregoing answer purports to have been made, and which
is signed by him as such president; that he has read said
answer and knows the contents thereof, and that as to the
matters and things therein stated as of his own knowledge,
the same are true, and that as to matters and things therein
stated as on information and belief, he believes the same to
be true. And further this affiant saith not.
- CHARLEs L. BONNEY.
Subscribed and sworn to before me, this 13th day of Jan-
uary, 1893.
[NOTARIAL SEAL.] H. L. BURNETTE,
Notary Public.

Term No. 64. - Z. Gen, No. 5072.
IN THE
APPELLATE COURT OF ILLINois.
FIRST DISTRICT.
MARCH TERM, A. D. 1894.
H. B. Tibbetts
7.75. Appeal from
Circuit Court,
West and South Towns Street Rail= Cook County.
Way Company.
BRIEF AND ARGUMENT FOR APPELLEE,
Y PECK, MILLER & STARR,
SOLICITORS FOR APPELLEE.
E.A R N A R D & G U NT - O Riº, FR NTERS, CH, ICAGO,
IN THE
APPELLATE COURT OF ILLINois.
FIFST DISTRICT.
MARCH TERM, A. D. 1894.
H. B. Tibbetts
| Appeal from
795. DI) I
Circuit Court,
West and South Towns Street Rail= Cook County,
Way Company.
BRIEF AND ARGUMENT FOR APPELLEE,
sºmsºmºmºmas
I.
Appellant’s remedy at law, if any he is entitled to, is plain, ade-
quate and complete; and for this reason he cannot maintain this
bill.
Appellant filed his bill of complaint as the owner of property
abutting upon certain streets of the city of Chicago, to enjoin the
construction, maintenance and operation of a street railway, under
an ordinance of the city council of the city of Chicago, on the ground
that the ordinance was passed without the requisite petition of the
owners of the required amount of property fronting on the street, as
provided by clause 90, section I, article 5 of the City and Village Act.
(Rev. Stat., Chap. 24, Art. 5, Sec. 1; 3 Starr & Curtis Stat., 192,
Par. 63.) No property of appellant is taken; but if he sustains
any injury it is solely consequential damage, resulting from the
railway in a street the fee of which is in the city.
2
I. Clearly, if the property of appellant is not damaged, he has
no cause of action either at law or equity. *
Chi. & G. W. R. R. v. Wedel, I 44 Ill., 9.
Demorest, Elevated R. R. Law, 264.
The private citizen or property owner has no standing to enforce
public right, or redress public wrongs or nuisances, as such, nor, ex-
cept in case he suffers special damages or injury; and then his cause
of action is based thereon. He must aver and prove such special
damage; and this is the gist of his right of action. The public au-
thorties can alone enforce mere public rights, or redress mere pub-
lic wrongs or injuries.
Sparhawk v. Onion P. A. Co., 54 Pa. St., 401.
Patterson v. C., D. & V. Af. Af., 75 Ill., 588.
I Spelling, Extra Relief, Sec. 382.
The action of the municipal authorities of the city of Chicago in
finding that there was the petition of the requisite amount of front-
age, and in thereon passing the ordinance, must be taken as final,
and cannot be assailed, except for fraud.
1. Under the City and Village Act (Rev. Stat., Chap. 24),
Mr. Spelling says:
“An action will not lie by an individual or corporation to restrain,
by injunction, the commission of an act on the ground that it is a
public nuisance, or the usurpation of a franchise detrimental to all
the people of the state, such as the filling up of a highway or navi-
gable river, unless peculiar individual injury be shown. The
remedy must be applied for in the name of the people and by the
public officers appointed for the purpose.” (I Spelling Extr. Rel.,
Sec. 382.)
And he continues further:
“Where private individuals suffer an injury distinct from that
suffered in common with the general public in consequence of a
public nuisance, they are entitled to relief by injunction, which will
thus compel the wrong-doer to take active measures against allow-
ing the injury to continue. But to enable an individual to maintain
such action he must allege and prove special and substantial dam-
ages.” (Zd., Sec. 383.)
3
And that is the rule even where a railroad is constructed in the
street without any authority.
Patterson v. C., D. & V. R. R., 75 Ill., 588.
2. If the property owner does sustain such damage to his prop-
erty right, by reason of a violation of public right or of a public
nuisance or wrong, as to give any right of action at all, then it is
thoroughly well settled, in this state, that he can recover his dam-
ages at law.
Afgney v. Chicago, IO2 Ill., 64.
C. & AE. Z. Af. Af. v. Ayres, Iof id., 5 I 1.
C. & E. Z. At'. Aº. v. Zoeb, 118 id., 203.
Stetson v. C. dº F. A. AP, 75 id., 74.
Patterson v. C., D. & V. R. R., 75 id., 588.
A’eorga, déc., v. Schertz, 84 id., 135.
Penn., M., Z. Z. Co. v. Heiss, 141 id., 35.
The rights of appellant in or connected with a street or its use,
as the owner of the property abutting thereon, or as appurtenant
to such property, are simple private property rights. They are
easements. He does not, by reason of them, in any way represent
the public or public right. They are no more sacred than other
property rights; nor are they made any more sacred than his other
property rights by the frontage provisions of the statute above re-
ferred to. (3 Starr & Curtis, I92, Par. 63.) That statute makes
no new rules governing chancery jurisdiction, and gives no new or
enlarged jurisdiction to a court of chancery.
/Joane v. Chicago City Zºy. Co., (App. Court, First
Dist.) 7 Nat. Corp. Rep., 27.
He is given no more right to represent the public or enforce mere
public right by that statute than he had before.
In Doane v. Chicago City ſºy. Co., supra, the court, per WATER-
MAN, J., say:
“ In 1872, the state saw fit to refuse to give to city authorities
the right to permit horse railways to be constructed in the streets
of cities, except upon the petition of the owners of a majority of the
frontage before which such railway should be laid. In doing so,
4.
the state did not, by refusing to completely transfer its control in
this regard over public streets, impose upon the owners of abutting
property any public trust, or charge them with the discharge of
any public duty. * * * - -
“One property owner cannot hold or exercise a trust as to other
property owners, because no owner has any property right in the
restriction or devotion of the street to certain public uses. Each
owner is entitled to compensation if his property is damaged; and
the consent by one owner to the laying of railroad tracks does not
affect the claim of another for damages.”
If the appellant can find in a court of law a plain, adequate and
complete remedy for his supposed injuries, it is plain that clause 90
of the powers of the city council, above referred to, has not in any
way modified the time honored principle of equity jurisdiction that
he cannot seek his remedy in equity.
Plainly, the case of appellant is subject to the rule, that if he has
a plain, adequate and complete remedy at law, he cannot resort to
equity and to the extraordinary equitable remedy of injunction. Is
his remedy at law, then, plain, adequate and complete? Let us
See. -
His rights so far as the street is concerned, are the appurtenant
rights of access, light, air, etc. It can be nothing other than such
appurtenant rights in respect of which appellant can, by any possi-
bility sustain damage by this railroad. Could he find in his action
at law an ample remedy for such injuries? Is that remedy ade-
quate and complete? It has long been settled law in this state that
it is. -
Stetson v. C. dé A. Z. Aſ'. Ar., 75 Ill., 74.
Patterson v. C., D. & V. At’. A’., id. 588.
Peoria &c. R. R. v. Schertz, 84 Ill., 135.
C. & E. Z. Af. At'. v. Zoeb, I 18 Ill., 203.
C. & E. Z. Af. Af. v. Ayers, Iof Ill., 5 II.
Pittsb. & F. W. R. F. v. Zeich, Ioſ Ill., 157, 176.
C. & F. Z. F. A. v. McAuley, 12I Ill., 160.
Penn. M. Z. Z. Co. v. Aſeſss, I4I Ill., 35, 58, 59.
It has long been settled and conceded law in Illinois that if the
city should erect a viaduct, or approach to a viaduct, or otherwise
S
change the grade of the street in front of appellant’s property, so
that appellant suffered damages in such property right, for which
he would be entitled to recover under our constitution—his remedy
is at law, and not in equity. In other words, his damages in such
a case is not irreparable, and his remedy at law is adequate. But
his damages are much more irreparable than from a street railroad
in a street which does not change the grade or destroy or affect
his access or light, and the use of which is not inconsistent with any
ordinary travel or passage or use of the street by common vehicles.
People v. Kerr, 27 N. Y., 188,
Moses v. Pillsburg, déc. F. A., 21 Ill., 516, 523.
Or if a railroad were constructed in such street under competent
authority (the fee of which street was in appellant as abutting
owner) so as to damage appellant, his remedy would be at law and
not in equity.
Now, are the damages or injury of appellant in such a case any
different at all, in character or amount, are they any more irrepar-
able, whether the change of grade or the construction of the rail-
road was or was not done by competent authority? Are the dam-
ages of appellant any more or less irreparable (assuming in each
case that he sustains legal damage by a railroad in a street, for
which he might recover) whether the ordinance authorizing the
railroad was on the petition of fifty-one per cent, or forty-nine per
cent. of the frontage?
3. The bill in this case is a mere injunction bill to enjoin the
carrying out of a great public work. In the case of public works
of magnitude, and involving large expense, like railways, a Court
of equity is much more reluctant to interfere by injunction than in
other cases.
High, Inj., Sec. 598.
Torrey v. C. & A. ſºy., 3 C. E. Green, 293.
Greenhalgh v. M. & V. ſºy. Co., 3 Myl. & C., 784.
Aſackensack Com. v. AV. J. M. Aºy., 7 C. E. Green,
94.
Aooraem v. AV. H. C. Aºy., 40 N. J. Eq., 557.
6
. So that in cases like this, the rule that a court of equity will not n
interfere where there is an adequate remedy at law should be
strictly applied, - -
In Zoire v. AVor//, Ch. St. Æ, ź., 32 Fed. Rep., 270, the court
say:
“The court should not reach out its strong arm unless the facts
clearly call for such action. Even if the right to construct and
operate the railway is not clear, the complainant is not entitled to
the relief prayed for, unless he has been or will be disturbed in the
enjoyment of his property, for which he has no adequate remedy at
/azv. * * * lif the complainant can show that the construction
and maintenance of the tracks in front of his premises, will result in
special injury to him—not in an injury which he will sustain in com-
mon with the public at large—his remedy will be at law for the
special damage, and not by injunction. Osborne v. AE, AE. Co., 5
Blatch., 366; Currier v. AE, AP. Co., 6 Blatch., 487; A. R. Co. v.
Prudden, 20 N. J. Eq., 530; Zabriske v. AE, AE. Co., 13 N. J. Eq.,
314; Hinchman v. A. ſº. Co., 17 N. J. Eq., 75; Chicago Bldg.
Assn., IO2 Ill., 379.” s
Counsel for appellant, in his consideration of the authorities cited
by him in his brief on this point, has overlooked some controlling
characteristics in those cases which distinguish them from this case.
In Cobb v. Z//. & St. L. A. R. Co., 68 Ill., 233, he quotes an obiter
dictum. The bill was to restrain the railroad from entering upon
and appropria/?ng plaintiff’s land without compensation; and the
court held that the damage was a permanent injury and plainly irrep-
arable. In this case, no part of plaintiff’s land was entered upon or
touched, but the damage, if any, was merely consequential. This
distinction is plainly marked in this state by the cases above cited by
us. In one (the attempted taking and appropriating) injunction is
opportune; in the other (of consequential damage) the remedy is at
law. And decisions of courts of other states where the constitu-
tional rule is different (such as New York and Minnesota), where
consequential damage to property is a “taking ” within the consti-
tutional provision, and the railroad may therefore condemn there-
for—have no proper application here. In this state that has never
been the rule.
Afumsey v. Chicago, S7 Ill., 348.
Zºg ſley v. Chicago, I O2 Ill., 64.
7
This distinction in the rule in this state and in such other states, is
illustrated by Harring/on v. St. P., &c., R. Co., 17 Minn., 2 IS,
cited by appellant’s counsel. Counsel in quoting from that case
omits, with stars to indicate the omission, these most important
words: “And it is found by the court below that the defendant
“ has never made any compensation, nor has it ever taken steps to
“ have commissioners appointed to appraise plaintiffs’ damages, and
“ all of said acts have been done without plaintiffs' consent and
“ against their will.” And in that case (it is a code state) the
court gave judgment for past damages, and awarded an injunction:
but the Supreme court modified the order for injunction, in accord-
ance with the AVew 2%rk rule and practice, and ordered that if the
rai/road should ſor//, wiſh ins/i/ute proceedings to condemn the land,
the injunction do not issue. So in Fanning v. Osóorne, IO2 N. Y.,
44 I, cited by appellant, the case was based on the ground held by
the court that the act of the railroad company was a Zaking of pri-
vate property. In this state there is but one recovery of damages,
which is for future as well as past damage; and a railroad Company
cannot institute condemnation proceedings to ascertain and pay
merely consequential damages; but the property owner's suit for
damages takes their place, and is, as the law is settled in Illinois, an
adequate remedy.
In quoting the opinion in the case of Carter v. Chicago, 57 Ill.,
283, counsel (with stars to indicate the omission) leaves out these
controlling words, “ and from fraudulent and malicious motives.”
The court found to exist in that case “bad faith, wantonness, Op-
“ pressive abuse of power, breach of trust, and a fraudulent scheme
“ and design, on the part of the city and board of public works, to
“injure, annoy and oppress the plaintiff.” (Page 286.)
In the Pennsylvania case cited by counsel for appellant, (S/.77-
Zey v. Com/inch/a/ /P. R., 13 Phila, 128) the essential condition that
the plaintiff “show, first, special damage to himself” prevents ap-
pellant’s getting any benefit, for, as we shall show, he does not
here show special damage to himself within the rule; but, on the
contrary only general damage, without facts, and only such sup-
posed damage as every property owner on the street could claim.
II.
The bill of appellant does not sufficiently allege or show that he
will be so specially damaged as to entitle him to maintain this bill
for an injunction to restrain a work of a public character.
Appellant's bill merely alleges that his land will be specially,
greatly and irreparably damaged by the construction and operation
of said railway in front thereof, and on and along the streets respect-
ively, on which the same abut; that said real estate will be thereby
greatly depreciated in value and its access to and use of said streets
cut off or greatly damaged. Here are no facts alleged, but only
general conclusions. The bill shows that appellant's property is on
the route of the road; there is nothing alleged showing that it is in
any way differently affected from every other lot on the different
streets along the road. This is not enough. In order to maintain
a bill to enjoin the construction of a work of public character, he
must show some special injury to his property, which is peculiar
thereto. And he must set forth the facts showing or constituting
such injury. • -
Osóorne v. Brooklyn Av. AC., 5 Blatchf., 356.
Coast Z. At'. Af. v. Cohen, 50 Ga., 444–461.
Garnett v. jacksonville &c. AEy., 20 Fla., 889, 901,
902.
Wood, Nuisances, Sec. 75.
AJunning v. Aurora, 40 Ill., 481.
People v. AVor//; Chi. Ary., 88 Ill., 544,
Patterson v. C., D. & V. A. AE., 75 Ill., 588.
S/etson v. Chi. & A. AE. A., 75 Ill., 75.
Aeoria &c. AEy. v. Scher/2, 84 Ill., 135.
Zºruesdale v. Peoria &c. Co., IoI Ill., 561.
Mills v. Parlin, IO6 Ill., 60.
Chicago v. On. Aldg, Assn., IO2 Ill., 379.
In Coast Z. At'. Zº. v. Cohen, 50 Ga., 444, 462, the court say:
“In this case one of the complainants is, by the amendment, al-
leged to be a lot owner on one of the streets. We recognize the
9
distinction between the rights of the public and the private rights of
the lot owner on the street to a free passage to and from his prop-
erty on the street. This is a private right distinct from the right of
the public, and a suit will lie for the protection of this right even
where the nuisance is also a public one, but the bill sets forth no
damage or threatened damage to the lot. Arima facie a street rail-
road properly laid down is a benefit, instead of an injury to the
property holder, through the street, and it is not sufficient to justify
the interference of equity for the lot owner to charge that the rail-
road will injure his lot. Facts must be set forth. Specifications of
the injury must be made; so that an inſelligent mind may understand
how and to what extent there will be injury. The railroad company
may take issue with the charge, and is entitled to details so that it
may reply.”
In Garnell v. jacksonvil/e, dºc. Aºy., 20 Fla., 889, 901, the court
say:
“The bill must set forth such a stale of fac/s (the italics are the
court’s) as leaves no room for doubt upon the question of nuisance:
for if there is any doubt upon that point, the benefit will be given to
the defendant. Mere allegations of conclusions or opinions as to the
contemplated injuries are not sufficient. The precise manner in
which he is to be injured must be stated. We will not stop to dis-
cuss the question, but will simply say that it is the settled law here
and elsewhere, that an individual cannot recover damages at law
nor have relief in equity against even an admitted public nuisance,
unless he makes a case of special and particular injury to himself;
he must sustain an injury not common to the public.”
In Osborne v. Brook/yn /ø. At'. Co., supra, the court say:
“Assuming that the defendants have no legal authority whatever
for laying down their track in Green avenue, their position is that
of parties about to erect a public nuisance which affects the right of
every person entitled to use Green avenue as a street, that is to say,
of the whole community. They do not propose to enter upon any
land of the plaintiffs, and the damage occasioned by the road to the
plaintiff will not be different in kind or degree from that sustained
by every other lot owner upon the avenue. It is damage resulting
from the depreciation of the value of lots abutting on the street by
reason of the railroad running in front of, but not over the plaintiff’s
land. Now, it is well settled that damage sustained alike by all the
individuals of a large class furnishes no foundation for an action on
the part of a single individual of the class. Zansing v. Smith, 8
Cowan, 146; /)avās v. Mayor, 14 N. Y., 506.
It was incumbent, therefore, on the plaintiff to show some special
damage sustained or likely to be sustained by him, differing in kind
1 O
from that sustained by the neighborhood, to entitle him to ask the
interference of the court in his behalf. No such damage is pre-
tended to exist, and its absence is fatal to the plaintiff on this motion.”
See also Zorie v. Aorth Chicago Street Ry. Co., 32 Fed. Rep.,
270; Zockhart v. Craig Street Ry. Co., 139 Penn. St., 4:19: Fullon
v. Short Aroute Aºy., 85 Ky., 640. -
This bill is clearly insufficient in this respect,
III.
Under clause 90 of the powers of city councils, in the City and
Village Act, the city Council, in considering and passing the ordinance,
must pass on and determine, and do pass on and determine whether
the owners of a majority of the frontage have signed the petition.
And that determination, by the city council in this case in a collateral
attack upon the ordinance, as this is, must be taken as final and is
hot open to such attack, at least unless for fraud alleged. And
no fraud is alleged.
That clause provides that the city council “shall have no power
“to grant the use of or the right to lay down any railroad tracks
“ in any street of the city to any steam, dummy, electric, cable, horse
“ or other railroad company # * * except upon the petition of
“ the owners of the land representing,” etc., (3 Starr & C. Stat.,
p. 192; R. S. Ch. 24, Art. 5, Par. 63, Sec. I, clause 90).
Plainly this “petition * is to the city council. It goes to the
city council; and it is upon that petition that the city council acts. It
must, therefore, in such action, first ascertain whether there is such
a petition and whether it is signed by the requisite number of prop-
erty owners. That action is political or legislative, and the question
is a political or legislative one for that body to inquire into and
Bissell v. City of jeffersonville, 24 How., 287.
Matter of Dodd, 27 N. Y., 629, 631.
Commissioners Anox Co. v. AVºchols, I4. Ohio St., 260,
27O.
determine.
II
The ordinances passed by the city council, are laws, equally with
the acts passed by the General Assembly.
McCoy v. People, I 36 Ill., 344.
Same case, 33 App. Court, 576.
In Bissell v. City of jeffersonville, 24 How., 287, the common
Council of the city had authority to subscribe for stock in a railroad
company upon the petition of three-fourths of the legal voters of
the city; and the city was prohibited from borrowing money or in-
curring debts unless three-fourths of the legal voters should petition
the common council. The court holds that it was for the common
council to determine whether such petition was presented as the
statute required (p. 294) that this was a question of fact (p. 298)
and say :
“Jurisdiction of the subject-matter on the part of the common
council was made to depend upon the petition, as described in the
explanatory act, and, of necessity, there must be some tribunal to
determine whether the petitioners, whose names were appended,
constituted three-fourths of the legal voters of the city, else the
board could not act at all. None other than the common council,
to whom the petition was required to be addressed, is suggested,
either in the charter or the explanatory act, and it would be difficult
to point out any other, sustaining a similar relation to the city so fit
to be charged with the inquiry, or one so fully possessed of the
necessary means of information to discharge the duty. Adopting the
language of the court in Commissioners of Anox County v. Aspinwall
et al., 2 I How., 544, we are of opinion that ‘ this board was one,
from its organization and general duties, fit and competent to be the
depository of the trust confided to it.’” (24 How., 299.)
In the Ohio case, Æober/s v. Easton, 19 Ohio St., 78, the statute
did not provide, as here, that the council should act upon the peti-
Zion. It merely required “ consent " to exist.
The bill herein alleges that a petition purporting to be such a
petition of owners of land representing more than one-half of the
frontage, was presented to the city council; and the only attack
made upon it is that the signatures of certain land-owners appear to
be signed by agents, but without the authority therefor appearing
on said petition. It is not even alleged that they were signed with-
out authority in fact. It is to be assumed that the city council, to
Y}
I 2
whom this petition was addressed, and who acted upon this petition
ascertained such fact of authority properly to exist. And such
ascertainment could not be attacked collaterally as is here done,
except for fraud, and it is not in fact attacked by this bill.
The ordinances of the city council of cities incorporated under
the City and Village Act are presumed to have been duly passed,
and the compliance with all conditions precedent to the power of
the city council to pass the same is presumed.
7. //, dº Z. Af. Co. v. Voelker, 129 Ill., 540, 550.
I V .
The bill shows such standing by on the part of appellant without
making any objection, while appellee on the faith of this ordinance
of the city council, went on and expended a large amount of money
in the construction of this railroad—and such laches and acquies-
cence—as prevents them asking a court of equity for relief.
The bill shows that this ordinance was passed February 8, 1892
(nineteen months before this bill was filed), upon a petition of
property owners, purporting to be a petition of owners of land rep-
resenting more than one-half of the frontage. The ordinance,
which is set up in the bill, required the appellee to build a large
amount of road within a short time. The bill alleges that appellee
had, when the bill was filed, built and was operating more than six
miles of said road, including the track in front of appellant’s prem-
ises. Plainly appellee was permitted by appellant to go on, upon
the faith of an ordinance apparently good and presumptively good,
and expend a large amount of money in such work. Appellee
cannot now complain or seek aid in a court of conscience.
I Spelling, Extr. Rel, Sec. 279.
W. O. Z. Co. v. judkins, 70 Ala., 428.
Griffin v. Augusta &c., /ø. At’., 70 Ga., 164.
A asſon v. A. J. &c., A'. F., 24 N. J. Eq., 49.
Pickerſ v. Zºidgefield P. Zºy., 25 N. J. Eq., 316, 323.
Atty. G. v. ZDe/. &c., A'. Co., 27 N. J. Eq., 631.
Wºr
I 3
Meredith v. Sayre, 32 N. J. Eq., 557.
Sheldon v. Rockwell, 9 Wis., 180.
Pettibone v. Za Crosse &c., A'. Co., 14 Wis., 443.
Ben/z v. Z. Z. Af. Co., 13 Barb., 646, 655.
Goodwin v. C. & W. C. Co., 18 Ohio St., 169.
Bassett v. Salisbury M. Co., 47 N. H., 426.
Zogansport v. C///, 99 Ind., 53 ſ.
A’amsden v. Dyson, L. R. I., H. L., 129.
Greenhalgh v. Manchester &c., A'. Co., 3 M. & C., 784.
Osborne v. Mo. Pac. AE, AE., 35 F. R., 84.
I Redf. Railways, Ch. Io, Sec. 61.
2 id., Ch. 29, Sec. 22O.
The doctrine of “continuing trespasses" which may be applicable
where the fee is in the abutting owner or where the injury is a
“taking ” of private property, has no application in Illinois, where
the damages are consequential and where the injury when done is
done once for all and there can be but one recovery. So the case
of Aſarrington v St Paul déc., ſºy. Co., 17 Minn., 215, has no appli-
cation. And in that case the court held that the doctrine of laches
and estoppel could apply where 4/ic railroad company supposed it
was in the exercise of its right. And that was clearly the case
here.
This point can be taken on demurrer when the facts sustaining it
appear on the face of the bill.
Walker v. Atay, I I I Ill., 315.
We submit that the decree should be affirmed.
PECK, MILLER & STARR,
Aſor Apfellee.
—- sº *—
IN THE
Suprême (Olſt Of Illinois
NORTHERN GRAND DIVISION.
OCTOBER TERM, A. D. 1895.
ALEXANDER M. STEWART,
Appellant, ) ºppéal from
21ppellate Courſ,
First District.
U.S.
CHICAGO GENERAL ST. R.Y. CO.,
Appellee.
Brief for Appellee.
C. L. BONNEY,
Solicitor for Appellee.
PRINTED BY THE CHICAGO LEGAL NEWS COMPANY., 87 CLARK STREET.
1895,
—º-
—sº 4-
The Supreme Çourt of Illinois
NORTHERN GRAND DIVISION.
OCTOBER TERM, A. D. 1895.
*ALEXANDER M. STEWART,
31ppellanf, 1 3/ppeal from
31ppel/aſe Court,
First Districf.
U.S.
CHICAGO GENERAL ST. RY, CO.,
21ppellee.
BRIEF E'OR ATPPELLEE.
MAY IT PLEASE THE COURT:
The opinion of Judge Waterman upon the hearing of
this cause in the Appellate Court is so complete and ex-
haustive a review of the authorities in favor of the position
of appellee that we deem it unnecessary to weary the court
with further argument, and will only annex a copy of the
briefs filed by us in the Appellate Court. A copy of Judge
Waterman’s opinion has been filed by appellant under the
rules of this court as an appendix to his brief.
The cases of Kirchman and Shima against this appellee
have been appealed to this term of court. Many of the
points at issue are closely related, and for the convenience
of the court we also annex hereto a copy of the brief used
in those cases as was done in the Appellate Court.
We submit the case with confidence that the judgment of
the Aupellate Court will be affirmed by this court.
Respectfully submitted,
C. L. BONNEY,
Solicitor for Appellee.
[From the Chicago Legal News of September 28, 1895.]
SUPREME COURT OF NEW YORK, GENERAL TERM.
SECOND DEPARTMENT.
OPINION FILED JULY, 1895.
OLIVER W. INGERSOLI, plaintiff-appellant, v. NASSAU
fºrmic RAILWAY COMPANY, defendant-appel-
ant.
Present: Hons. CHARLEs F. B.Row N, P. J.; J Acksox
O. DYKMAN and CALVIN E. PRATT, J.J.
STREET RAILROADS – CONSTRUCTION – CON-
SENT OF PROPERTY OWNERS.
Section 18, Art: 3, of the Constitution of the State of
New York; providing that no street railroads shall lye
constructed without first obtaining the consent of the
owners of one-half in value of the property abutting
on the street, does not require the consent of the prop-
erty owners to the use by a street railroad company of
the tracks of another company already constructed and
in operation in the street.
(Pratt J., dissenting.)
Appeal from special term, King's county.
Action for injunction. From a judgment
in favor of defendant plaintiff appeals.
DYKMAN, J.--The plaintiff in this action
is the owner of real property on the south
side of Bergen street, between Rogers ave-
nue and Nostrand avenue. The suit is in-
stituted for the procurement of an injunc-
tion to restrain the defendant from con-
structing, operating or maintaining any
surface railroad or tracks through Bergem
street, between the avenues above men-
tioned. Bergen street, between those two
avenues, is included in the route of the de-
fendant's railroad; but there is in that
street already a double track railroad,
owned and operated by the Atlantic Ave-
nue Railroad Company, and the defendant
has obtained the permission of that com-
pany to run the cars of the defendant over
the tracks of the Atlantic company on that
block. At Rogers avenue and Nostrand
avenue curved tracks are to be laid to con-
nect the defendant's track with the track
of the Atlantic company, but the complaint
contains no claim of injury from the con-
struction of such connecting track. The
action is based upon the constitution and
the statute, and the constitutional provision
invoked is this:
‘' No law shall authorize the construc-
tion or operation of a street railroad ex-
cept upon the condition that the consent of
the owners of one-half in value of the prop-
erty bounded on, and the consent also of
the local authorities having control of that
portion of a street or highway upon which
it is proposed to construct or operate such
railroad, be first obtained.” Article 3,
section 18.
Section 91 of the act of 1893 (chapter
434) contains substantially the same inter-
diction.
The complaint alleges that the defend-
ant, in pursuance of the consent of the
Common council of the city of Brooklyn,
is constructing, and preparing to maintain
and operate, its tracks or roads on Bergen
street, between Rogers and Nostrand ave-
nues, and that such construction and oper-
ation would irretrievably injure the value
of the plaintiff's property, and infringe his
rights. The facts, however, fail to sustain
those charges of the complaint, because, as
we have seen, the defendant is not construct-
ing, and does not propose or intend to con-
struct or operate, its tracks or road on
Bergen street at all. The tracks of the At-
lantic Avenue Company are laid there, and
we must assume that the consent of the
property owners and of the local munici-
pal authorities has been obtuined for the
construction and operation of that road
through Bergen street. All the constitu-
tional and statutory requirements are there-
fore satisfied. The Atlantic Company may
operate its road in any legal manner con-
sonant with the purposes for which it was
organized. It may hire out its line, or it
can permit other railroad companies to run
their cars over its tracks, according to stat-
utory provision upon that subject. The
legal use of the franchises of the Atlantic
Company is untram meled.
The defendant does not intend to appro-
priate Bergen street to any new use. The
interests of the locality have been con-
sulted in relation to the construction and
operation of the railroad already there,
and the street is to be no further ob-
structed. The defendant does not intend
to lay down or operate its railroad tracks
in that street. It is quite conceivable that
the right to use the tracks of the Atlantic
company, and operate its road, may be
transferred to another company by a volun-
tary or forced sale; but it will not be con-
tended that any new consents from prop-
erty owners or local authorities would be
necessary, in such a case, to the continued
operation of the railroad by a new trans-
feree of the property and franchises of the
old company. The right to exercise the
franchises of the Atlantic company becaume
vested upon the procurement of the neces-
sary consents (In re Rochester Electric Ry.
Go., 123 N. Y. 351, 25 N. E. 381.) The
constitutional inhibition under considera-
tion is ieveled against the construction and
operation of a new railroad without the
proper consents, but there is neither a
constitutional nor a statutory prohibition
against the use of one railroad by the cars
of another without such assents. More-
over, the question seems to be set at rest
by the decision of the Court of Appeals in
the case of People v. Brooklyn F. & C. R.
Co., 89 N. Y. 75. It was there decided
that one railroad company could run its
cars over the road of another company
without obtaining the constitutional con-
sents. In any view, however, the defend-
ant intends to do nothing of which the
plaintiff can complain in this suit. To
sustain his action, he must show that the
defendant is doing, or intends to do, some-
thing in Bergen street that will be of
especial and peculiar injury to him or his
property.
This is not a taxpayer's suit to prevent
waste or injury, or a public wrong. It is
a private action to restrain the defendants
from doing an act in a public street in a
great city which is under the control of the
municipal authorities for the benefit of the
whole people, and in which the plaintiff
has no peculiar interest. He does not
stand for the community. He must show
an infringement of some private right or
in other words, he must show that the de-
fendant is doing, or is about to do, some
act in Bergen street from which he will
sustain some injury peculiar to him or his
property. Injuries sustained by the plaint-
iff in common with the whole people can
not be redressed in a private action by
him. It already appears that the defend-
ant has done nothing in Bergen street, and
only intends to run its cars in that street
over the railroad tracks now laid down and
in use. No change is contemplated, no ad-
ditional space is to be occupied, and it is im-
possible to see how the plaintiff can sustain
any peculiar injury from the use of the
tracks which the defendant proposes to
make. The judgment should be affirmed,
with costs. -
BROWN, P. J., concurs.
PRATT, J. (dissenting). —I have been
Unable to satisfy my mind that the act of
1890 and the amendments of 1893 and 1894
do not prohibit any street railway com-
pany, organized under the several laws of
1890, operating any railway in any street
except on condition that it shall first ob-
tain the requisite consent of property
owners on the street. The defendant was
organized under the general railroad law
of 1890. Its route runs through Bergen
street, in front of plaintiff's premises. " It
has obtained the consent of the local au-
thorities to construct and operate its road,
but it has obtained no consent of any prop-
erty owners on Bergen street. The con-
sent of the local authorities was conditioned
upon its compliance with all the provisions
of the railroad law, and acts anyendatory
thereof. The railroad law requires con-
sent of one-half in value of the property
Owners on the several streets on its route.
The contention of the defendant is that
such consents were unnecessary, under that
law, because it does not propose to con-
struct any railway on Bergen street, but
merely to use the tracks of the Atlantic
Avenue Railway Company already existing
in that street, under a contract with the
latter.
As 1 construe the statute, the prohibition
extends disjunctively to the building, ex-
tension or operation of street railways. It
forbids the operation of a street railway
quite as much as its construction or exten-
sion. Nor does it matter that the defend-
ant does not propose to construct in Bergen
street, or that the Atlantic Avenue Railway
was constructed before these special statu-
tory provisions, or even the constitutional
prohibition. The acts under which the
Atlantic Avenue Company was organized
rendered it subject to future legislation.
The constitutional prohibition was aimed
at the future. We find such future legis-
lation in the acts of 1890, 1893 and 1894
and in the railroad law, which, in effect,
prohibits any street railway company or-
ganized since those acts took effect from
operating a railway without such consent,
unless, perhaps, as the successor of the
owner of the pre-existing franchise of the
pre-existing road. True, the railroad law
authorizes a contract by one company for
the use of a part of its tracks by another,
but that is subject to the other provisions.
of the law. Such a contract may be law-
ful, but the monent the hirer of the track
attempts to use it, then quoad hoc, it be-
gins the operation of that railroad. For
all practical purposes, the portion thus used
becomes the road of the hirer, and the act
of running cars over it is the “operation
of the road.” º
Let us test this question by an easy illus-
tration of the design of these prohibitions
both in the constitution and in the statute.
Take the case of a railway constructed and
operated by consent of local authorities
and property owners. What did the prop-
erty owner consent to? Was it that his
street should be thrown open to any use
of the tracks to which the consentee might
agree? I think not. He consented to the
construction and operation of the railroad
proposed by the company which applied
for and obtained the consent—a railroad
having definite termini, a recorded route
and plans; something which the judgment
of the property owner could comprehend,
and upon which he might act intelligently;
something from which he could form some
estimate of the probable advantage of the
scheme to his property, and the probable
burden or servitude which it would imm-
pose. It is idle to say that any one con-
senting to the construction and operation
of, say, the Bergen Street Railway, with
its specific route, plan, termini, etc., could
have contemplated that the passenger
traffic of a new cross-town line, from some
grand central depot connection to the sea-
shore, should be poured over that track in
front of the consentor’s door. He might
well have consented to the one, thinking
that it would be an advantage to his prop-
erty, when the other, either alone or in
conjunction with the former, would be a
positive injury. *
Instead of the ordinary street railway
traffic, involving one car in five or ten
minutes, there might be as many Cars as
congregates about the city hall square;
for, if this sort of thing may be done for
one railway company, it may be done for
a dozen. Thus a totally uncontemplated
burden or servitude would be imposed on
the consentor's property. His consent
would be wholly misconstrued. This, to
my mind, illustrates the design of these
constitutional and statutory proVisions—
namely, to give the property owner some
sure guaranty against the encroachment of
street railway corporations upon private
property. Such a ruling in the case which
I present would be simply to whittle away
into nothing that which was intended to
be a safe and reliable guaranty—namely,
the voice of a majority in value of the
property in any street. As I look upon
this case, the defendant and this Atlantic
Avenue Company, at the commencement
of this suit, stood in precisely the legal
relation to property owners which I
put by the foregoing illustration. The de-
fendant proposes to operate a part of its
line of railroad, and that which quoad hoc,
is to become its railroad and railroad track.
in direct violation of the spirit if not of
the very letter of these statutory and con-
stitutional prohibitions, and without com-
plying even with the conditions on which
the consent of the local authorities was
given. These views lead to a reversal of
the present judgment and to a new trial,
with costs to abide the evest of the action.
WooD & HILL, for appellant.
JAMES C. CIIURCII, for respondent.
IN THE
APPELLATE COURTOFILLINOIS
FIRST DISTRICT,
MARCH TERM, A. D. 1895.
ALEXANDER M. STEWART,
21ye/lant, ) 31ppeal from
j
U.S. \ © e
Circuit Court,
CHICAGO GENERAL ST. R.Y. CO., - Cook County.
3/ppellee,
BRIEF AND ARGUMENT FOR APPELLEE.
STATEMENT OF THE CASE.
This is a bill filed by appellant, November 26, 1894, as the
owner of fifty feet, fronting on Lawndale avenue. The West
& South Towns Street Ry. Co., February 8, 1892, obtained
from the city council an ordinance permitting the construc-
tion and operation of a railway on Lawndale avenue in front
of the premises owned by appellant. The Chicago General
Street Ry. Co., appellee, obtained the use of the tracks of the
Towns Co. by lease. Appellant denies the right of appellee
to use the street in question and prays an injunction to pro-
hibit such use. A special demurrer was filed, in which the
jurisdiction of the equity court was denied. The demurrer
was sustained.
ARGUMENT.
The case of Kirchman et al. v. The West & South Towns
Street Ry. Co., Chicago General Street Ry. Co., City of Chi-
cago and J. V. McAdam, and the case of Shima v. The
West & South Towns Street Ry. Co., Chicago General Street
Ry. Co. and the City of Chicago, both now on hearing at
this term of court, contain questions incidentally involved
in this case, and we therefore attach hereto a copy of the
brief for appellee in those cases as a part of our argument
in this case. In this brief we will confine ourselves to the
single question of the jurisdiction of the equity court.
The act in relation to quo warranto provides “that in case
“any person shall “ ” * unlawfully hold or execute
“any license which has been improperly, or without war-
“rant of law, issued or granted by any ” “ ” person
“authorized or empowered by law to grant or issue such
“license * * * the attorney-general or State's attorney
“of the proper county, either of his own accord, or at the
“instance of any individual relator, may present a petition
“to any court of record of competent jurisdiction, or any
“judge thereof, in vacation, for leave to file an information
“in the nature of a quo warranto.” This statute gives to the
appellant in this case a complete and adequate remedy at
law; in which case the equity court will not assume juris-
diction.
The record shows that the West & South Towns Ry. Co.,
from which the Chicago General Street Ry. Co. acquired the
right in question, was possessed of the de facto use of the
street in question, under an ordinance of the city, which is
not impeached. Appellant seeks to try the title of such
right of appellee to such de facto use, by injunction.
The State constitution has divided the powers of the
government into three distinct departments and has provided
that no person, being of one department, shall exercise any
power properly belonging to either of the others, except as
expressly directed. If an injunction be improperly issued
3
by the judicial department, the same must nevertheless be
respected until it is dissolved. The citizen is protected in
the law by the right of appeal. So in the legislative depart-
ment, if an enactment be improperly passed, or license
issued, it is still prima facie valid and the law has
provided the citizen a remedy by appeal to the attorney-
general, whose function it is to present such matters to the
courts if public interests require such acts to be legally re-
viewed. For the chancellor to prohibit the exercise of a
right under a prima facie enactment, before the title to the
right be questioned in a proceeding at law for that purpose,
is an assumption by the chancellor of a veto power which
would soon inaugurate a government by injunction, under
which every legislative act would soon become the mere in-
cident of a chancery proceeding.
We recognize that in some States there has been a ten-
dency to test street car licenses in a chancery proceeding,
but we insist that this is not the law of Illinois. If the right
to try the title of a street car license by bill for injunction
exists, the same principle must necessarily include omni-
busses, hacks, express wagons, saloon licenses and in fact
every other license which is issued by the legal authorities,
and with this distinction—that although the State itself can
not try the title of such license by quo warranto without first
giving notice and obtaining leave of the court, the com-
plainant in a chancery proceeding can procure the inhibi-
tive writ without notice and upon filing a nominal bond.
The unusual severity of the use of the extraordinary writ
of injunction is well illustrated by the observation that the
licensee, who has property which is impounded by an ev
parte injunction is in a more unfortunate position than the
criminal under arrest. (1) The criminal may obtain lib-
erty upon giving bail; (2) he is guaranteed a speedy trial;
(3) he may demand meeting the witnesses face to face; (4) he
has the presumption of innocence,and (5) the burden of proof
rests on the prosecutor. But the licensee, with his impounded
property (1) has no relief analogous to bail; (2) the hear-
ing of the motion to dissolve is dilatory; (3) the witnesses
4
testify by affidavit, on information and belief; (4) the li-
cense is presumed to be invalid, and (5) the burden of re-
leasing the impounded property is on its owner.
Where the fee of the street is in the city as trustee for the
individual citizens the abutting land owner can not invoke
the aid of the chancery court in a personal suit, but will be
remanded to the remedies provided in the law for the hear-
ing of such questions as may be lawfully raised.
The case of Tibbets v. The West dº South Towns St. Ry. Co.,
was a bill to enjoin the construction of the same line of
road described in this suit and in which the opinion of this
court was filed May 28, 1894. The following is the opinion
in full:
“The question here presented is not as to the necessity
“for such a petition as is prescribed by the statute, but the
“council having acted upon what purported to be such a
“ petition, and appellee having proceeded under the ordi-
“nances thus obtained, to construct its railway, will a court of
“equity enjoin the operation of the railway, at the instance
“of a property holder whose property will be damaged by
“such operation?
“It is manifest that to the city council itself, is presented
“the determination of whether a petition authorizing it to
“grant the use of a street has been presented. The decision
“ of such question may require the making of Surveys, the
“learing of evidence, and the examination of titles.
“The favored property owners, it would seem, should, if
“they desire, be heard in order that the council may come
“to a correct decision as to this matter; and when it has in
“good faith determined this matter, there is reason for
“holding its conclusion to be quasi judicial. Black on
“Judgments, Sec. 532; Bissell v. City of Jeffersonville, 24
“HOW. 287.
“Appellant in his bill does not show that any fraud was
“practiced in obtaining the judgment of the council that
“the requisite petition had been presented. His allegation
“is that the signatures of certain owners were by agents; he
5
“does not allege that such signatures were unauthorized.
“The allegation in effect is that a petition containing the
“requisite signatures was presented but that the petition
“itself did not upon its face show, that each signature was
“authorized. - 4
“The streets of a city are controlled by the municipal au-
“thorities for the benefit of the public. The municipal au-
“thorities may, subject to certain restrictions imposed by
“ the statute, prescribe the manner in which the streets may
“ be used by the public—may close and vacate them. Cairo
“dº Vincennes I?. ſº. Co. v. The People, 92 Ill. 170; Chicago
“v. Union Bldg. Ass’n., 102 Ill., 379; Mayer v. Village of
“Teutopolis, 131 Ill. 522; Carney v. Marseilles, 136 Ill. 407.
“An owner has not even a right to the perpetual main-
“tenance of a street upon which his property abuts; although
“he may be entitled to recover damages because of the va-
“cation of the street by the municipal authorities. Mayer
“v. Village of Teutopolis, supra; Dillon on Municipal Cor-
“porations, Sec. 666. { - -
“While an abutting property owner is by the statute
“made one of a favored class upon whose petition alone
“can the council permit the laying of railroad tracks in a
“street, it does not follow that to such owner is given a
“right to insist that the courts shall interfere and protect
“ the right of the public in respect to the streets.
“The abutting property owner's right to use the street is
“no greater than that of each and all of the public. He is
“but one of the millions composing the public, and unless
“he sustain from the use to which the street is put by the
“municipal authorities, a damage special and peculiar to
“himself, he can not maintain a suit to compel the aban-
“donment of such use. He can not assume to represent the
“ public, and by his individual suit conclude its rights.”
Davis v. Mayer, 2 Duer. 663; Winterbottom. v. Lord Derby,
Law R. 2, 4, 316; Hartshorn v. South Reading, 3 Allen, 501;
McDonald v. English, 85 Ill. 232; High on Injunctions, Sec.
762; Pomeroy's Eq. Juris, Sec. 1379; City of East St. Louis
6
v. O'Flinn, 119 Ill. 200; City of Chicago v. Union Bldg. Ass'n,
102 Ill. 379; Patterson v. C. D. dé . V. Ry. Co., 75 Ill. 588;
Vanderpoel et al. v. The West dº South Towns Ry. Co., Chicago
JLegal News, March 24th, 1894. t . . .
“For damage, special and peculiar to himself, an abutting
“ property owner has, under the constitution and laws of
“this State, a remedy at law. The fact that by permission
“ to use the street for a particular purpose an abutting
“ property owner will be specially damaged, affords no
“ground for restraining such use so long as the property
“holder is able to recover and collect all the damage he
“suffers. Vanderpoel v. The West dº South Towns /ēy. Co.,
“supra; Loire v. North Chicago St. Ry. Co., 32 Fed. Rep.
“270; People v. Kerr, 27 N. Y. 188; Moses v. Pittsburg ſº.
“ R., 21 Ill. 516, 523; Stetson v. C. & E. I. Mº. R., 75 Ill. 74;
“ Patterson v. C. D. dº V. R. /ē., id. 588; Peoria, etc., R. R.
“ v. Schertz, 84 Ill. 135; C. & E. I. R. R. v. Loeb, 118 Ill.
“203; C. & E. I. R. R. v. Ayers, 106 Ill. 511, Pittsburg &
“ Ft. Wayne R. R. v. Reich, 104 Ill. 157, 176; C. & E. I. 18.
“ ſº. v. McAuley, 121 Ill. 161; Penn. M. L. I. Co. v. Heiss,
“ 141 Ill. 35, 58, 59.
“In the present case it appears that nineteen months
“elapsed between the presentation to the council of the pe-
“tition for permission to construct this railway and the
“filing of the bill in this case ; during this period the ap-
“pellee did a great deal of work and expended large sums
“of money, the benefit of which appellant now seeks to de-
“prive it of. .
“One who would avail himself of the remedy afforded by
“an injunction should be diligent in the assertion of his
“rights, and not allow the defendant to go on expending
“large sums of money in that which an injunction will de-
“prive him of the benefit of High on Injunctions, Secs.
“785–786; Johnson v. Wyatt, 11 W. R., 852; Redfield on
“Railways, Vol. 2, Chap. 29, Sec. xvi.
“So far as appears from the bill filed in this case not
“only has appellant a remedy at law for the damage, im-
“ perfectly stated, he alleges he will sustain, but he has been
7
“guilty of such laches as precludes his right to an injunc-
“tion.
“The decree of the Circuit Court dismissing the bill is
“ therefore affirmed.”
This Tibbetts case was affirmed by the Supreme Court, 38
N. E. Rep. 664. e
Respectfully submitted,
C. l. BONNEY,
Solicitor for Appellees.
IN THE
SUPREME COURT OF ILLINOIs.
- NorthERN GRAND Division
OCTOBER TERM, A. D. 1895.
ALEXANDER M, STEWART,
Aſpel/ant, Appeal from
2/S. Appellate Court,
First District.
CHICAGO GENERAL STREETRAILWAY 00,
} A%pellee.
BRIEF FOR APPELLANT.
JOHN J. COBURN,
SOLICITOR FOR APPELLANT.
Gro. HoRNstern & Co., PRINTERs, CHICAGo.
- - /TA - * - e. O
Supreme Court of lllinois.
NORTHERN GRAND DIVISION.
OCTOBER TERM, A. D. 1895.
ALEXANDER. M, STEWART,
A//e//av/,
Appeal from
7/S. Appellate Court,
First District.
CHICAGO GENERAL STREET RAILWAY CO.,
A//e//ee.
BRIEF FOR APPELLANT.
May it //case the Court :
The fact that a case most strikingly analogous to this
One, to wit, the suit of A £7:c///a/. cf aſ. v. 7%a PVes/
and Sout/ Towns Streeſ Rai/way Company, joined with
the appellee in this case, is on hearing at the present
term of court before your Honors, tends to lend a
brevity to this brief, and therefore adds to its wit. In-
somuch as Messrs. Kral, Condee & Rose, in their brief
for appellants in their former suit, have so amply and
ably covered the ground as to the right of appellee
herein (the lessor) being subject to the rights of the West
2
and South Towns Street Railway Company (the lessee)
provided the lease is good; nearly all the contentions of
appellants in the Kirchman case, striking at the rights of
the West and South Towns Street Railway Company can
be adapted to this suit. And as your Honors have been
So fully advised as to the authorities on the questions
raised, it seems unnecessary to again present them in
this contemporaneous case. So, like the jackdaw of
fable, counsel in this case will borrow the proud plumes
of the peacock, and accept (but with proper credit) the
work done by the learned counsel in the other cause.
Your Honors will notice that the six causes of demurrer
interposed in the cause at bar, are identical with the
first six causes of demurrer in the Kirchman case, but in
the cause at bar the appellee does not charge appellant
with /ac/ics or the waiver of his right for an injunction.
In both causes, the same ordinances prevail, and the
same question as to the proper construction of the law,
to wit: Paragraph 90, Sec. I, of Art. V of Chap. 24,
is raised. That statue reads as follows: *
“The city council or board of trustees shall have no
“ power to grant the use of or the right to lay down any
“ railroad tracks in any street of the city to any steam,
“dummy, electric, cable, horse or other railroad company,
“whether the same shall be incorporated under any gen-
“eral or special law of the state, now or hereafter in
“ force, except upon the petition of the owners of the
“land representing more than one-half of the frontage of
“ the street, or so much thereof as is sought to be used
“ for railroad purposes, and when the street or part
“ thereof sought to be used shall be more than one mile
“in extent, no petition of land owners shall be valid un-
“less the same shall be signed by the owners of the land
3
“representing more than one-half of the frontage of each
mile and of the fraction of a mile, if any, in excess of
the whole miles measuring from the initial point named
in such petition, of such street or of the part thereof
Sought to be used for railroad purposes.”
{{
{{
{ {
( {
The application of this statute is two-fold:
I. The “ use of ’’ any railroad tracks.
2. The “right to lay down '' any railroad tracks.
Now in our cause, we grant for the sake of argument
that the West and South Towns Company under the or-
dinance had a right to lay down the tracks, but we strictly
claim that that Company had no power to lease them,
and in no way, shape or manner had the appellee the
right to use them, under or by virtue of any such pre-
tended lease, or any power conferred by the statute or the
law. It is true that the ordinance granted to the West
and South Towns Company grants to it, “its successors
“ and assigns,” but we have after due diligence failed to
find any power conferred upon the city council to extend
or add to the statute law of the state by giving corpora-
tions powers superior to those conferred upon them by
the state. It may be argued that the words “and assigns ''
in the ordinance granted by the counsel, may be con-
strued to grant the power to lease, but is that not di-
rectly in the teeth of the statute quoted above. “The
“city counsel “ ” * sha///ave no power to grant
“ the use of * * * any railroad tracks in any street
“of the city to any electric * * * or other railroad
“company, whether the same shall be incorporated un-
“der any general or special law of the state, now or
“hereafter in force, except upon the petition of the own-
“ers of the land representing more than one-half of the
4
“frontage,” etc. In this cause the appellee is claiming
rights entirely unfounded upon any provision of law, but
contrary to all laws.
Counsel for appellant in the Kirchman case on page
42 of their brief say, “The next allegation is the trans-
“fer of one company to the other by lease, and the next
“relates to the action of the defendant companies, the
“ particular language of which we will advert to later.”
We fail to find that they cited any authorities on these
particular points and in consequence will cite Some
authorities in support of our contention.
The legislature by its act certainly expressed the law
to be that the consent of the majority of the frontage,
through the owners of the same, should be first had and
obtained, before any railroad company could use the
fracks. Now, can this court say that a corporation
backed by reliable men of means, energy and responsi–
bility who are looked upon by the abutting property
Owners as the future directors and managers of a rail-
road company, as Soon as by consent of such owners
they obtain an ordinance or franchise, immediately sub-
lease, lease or parcel out to any crowd of unknown or
incompetent persons the rights they obtained under the
ordinance, without the consent of the property owners.
An ordinary lease to a man who pays $1 O a month for
a flat, prevents him from sub-letting without the written
consent of his landlord. And shall it be said that the
streets of our cities may be given to men known as be-
ing of responsibility and property, to be immediately
leased out to whom they please, without the property
Owner's Sanction or approval?
Your Honors live in the present day, and can take no-
5
tice of the present desire of all property owners and citi-
zens to most earnestly and emphatically inquire, when a
franchise is asked for, “Who are the sponsors 2 " It is
easy to incorporate under a title bearing the construction
of a host of glittering generalities. But in this day and
age the people are not awed by the splendid or euphonic
name of a Corporation, but ask, and ask with vigor,
“Who are the sponsors ’’’ Or, in other words, who are
the individuals who go to make up the controlling man-
agement of this corporation ?
Now, is it not a mockery of the law to say that clause
90, Sec. 62 of Chap. 24 of the statute empowers a cor-
poration to lease out to another corporation without the
Consent of the owners of the land representing more than
One-half the frontage 2
There is no authority whatsoever in the Horse and
Dummy Law (Chap. 66, Revised Statutes) under which
the appellee company is incorporated to operate an elec-
tric trolley railroad, and no authority whatsoever to ac-
quire the use of streets by lease.
Corporations can only exercise such powers as may
be conferred upon them by the legislative body creating
them, either in expressed terms or by necessary implica-
tion. This is a fundamental principle, but we cite to
your Honors our Supreme court's views on that matter
in the case of 7/ke Peop/e ºr re/., etc., v. C/icago Gas
Triſsy, I 3O Ill., 283.
Now, while we have taken unto ourselves all the
benefit of the labors of counsel in the Kirchman case, we
find that in some things we have distinctions, if not differ-
€11CCS,
• And here, we claim, is a vast distinction, as the au-
6
thorities say (and we agree with them). “There is a
“vast distinction between a bill in which the sufficiency
“of the petition of the abutting lot owners is brought
“in question, and the bill (in this case) in which the
“total absence of such a petition is alleged and is ad-
“mitted by demurrer. In the latter case the estab-
“lished rule of the court has been to grant an injunc-
“tion.’’
Beg v. C., R. /. & P. R. R., 23 Ill. App.,
I 38. -
Stetson v. C. & E. J. R. R., 75 Ill., 74.
Green v. Oakes, I 7 Ill., 249.
Craig v. People, 47 Ill., 487–496.
C. & W. J. R. R. v. Oz//zóar, IOO Ill., 1 OO.
Wiggins Ferry Co. v. E. St. L. Ry., IO7
Ill., 450.
These decisions by our own Supreme court, mark the
demarkation line between the cause at bar and the
Kirchman case. We pray the benefits of the good in
both, and respectfully submit that the bill filed by the
appellant in the Circuit court, was one which was good
on its face, and that required an answer. That the
demurrer to it was improperly sustained; that the appel-
lant is entitled to an injunction against the appellee, and
we pray that the decision be reversed and remanded,
with directions to grant a temporary injunction, with
proper bond, etc., and that the appellee be required to
answer the original bill of complaint.
All of which is respectfully submitted by
JOHN J. COBURN,
Solicitor for Appellant.
OPINION OF APPELLATE COURT.
The bill in this case is stated in the abstract of the
record to be as follows:
Bill of complaint by Alexander M. Stewart, filed No-
vember 26, 1894, that he is the owner of fifty feet of
frontage on Lawndale avenue, Chicago; that the West
and South Towns Street Railway Company is incorpor-
ated under the laws of Illinois commonly called the act
in regard to horse and dummy railways; that on Febru-
ary 8, 1892, the city council of Chicago on the petition
of Said company and the petition of the owners of more
than one-half of the frontage of so much of the street
sought to be used for railway purposes passed an ordi-
nance granting authority to construct a railway on Lawn-
dale avenue, past the premises owned by complainant,
that said railway is constructed and in operation; that
the Chicago, General Street Railway is constructed and in
operation; that the Chicago General Street Railway Com-
pany, is also incorporated under said act in regard to
horse and dummy railways; that said West and South
Towns Railway has granted to said Chicago General
Street Railway Company, the right to operate an electric
trolley railway over the tracks above described; that said
Chicago General Street Railway is about to enter into
the use of said street without any petition whatsoever of
the owners of land representing any part of the frontage
of said street, and without any ordinance or authority
whatsoever of the city, its sole authority for such use of
said street, being the pretended lease of said West and
South Towns Railway.
That any use of said street for railway purposes by
8
said Chicago General Street Railway Company without
said petition of owners and without any authority from
the city council is contrary to clause 90, Sec. 62, Chap.
24, and being the act relating to incorporation of cities
and villages.
That there is no authority, under the law for said West
and South Towns Railway to lease any of its privileges
and no authority for said General Street Railway to take
or acquire the same.
That there is no authority in the act under which said
company is incorporated to operate any other motive
power than horse and dummy locomotion.
Prayer for process and injunction to restrain appellant
from the use of Lawndale avenue, etc.
“Exhibit A,” Section I. Ordinance of the City of
Chicago, granting West and South Towns Railway, its
successors and assigns, authority construct and Operate
a railroad on Lawndale avenue, from 22d Street to
35th street. Sec. 3, authorizes the operation of cars
by animal or cable power, electric, compressed air or
gas motors.
To this a special demurrer, interposed by appellee,
was sustained, and the bill dismissed for want of equity.
Mr. Presiding Justice WATERMAN delivered the opin-
ion of the court:
The first question for consideration upon this appeal
is whether a court of equity will in the case presented
by appellant's bill interfere at the suit of an owner of
abutting property to restrain the use, for public pur-
poses, of a street by a private Corporation.
The question really is whether an abutting owner has
such a private right, vested interest, in the use to which
9
a public street may be put that he is entitled to have
such private right and interest respected, and protected
by the people's writ of injunction.
It is manifest that if the abutting owner is entitled to
enjoin the use of a public street it is becatise of his
private right; he can not assume to because he does not
represent the public. The attorney-general is the only
proper representative of the public and in suitable cases
bills may be by him maintained to protect the public
interests.
Ke7 fooſ v. The Peop/e, 5 I Ill. App., 409.
Attorney-Genera/v. The Newberry Library,
5 i Ill. App., 166.
Sa/ze v. Samac, I 50 Ill., 229.
Hunt v. Chicago Horse & Dum/uy Ry. Co.,
I 2 I Ill., 638.
If one abutting property owner may, for such an injury
to the public, file a bill and obtain an injunction, then
each of such owners may do likewise.
Mr. A, the owner of a lot, obtains upon his bill an
injunction against the contemplated use. His bill is
answered, testimony is taken, upon hearing the evidence
being considered is found not to sustain the allegations of
the bill, whereupon it is dismissed. Mr. B imme-
diately files his bill, the allegations being the same as
those in that of Mr. A with the necessary variation as to
the description of the lot of which B is the owner. If
the bill of A presented a case for an injunction, the bill
of B does; it is no answer to say that the court has
found the allegations in the bill of A to be untrue; Mr. B
was not a party to that suit, he is not bound by the con-
clusions there reached; he is entitled to be heard upon
the charges by him made; he well urges that it by no
I O
means follows that he may not establish the truth of
allegations which A failed to prove; and that the rights
of B can not be foreclosed by a suit brought and prose-
cuted by A. i
The court can not be a respecter of persons, and to be
consistent, must give B an injunction and hear his cause.
The second suit results like the first; whereupon C files
his bill demanding an injunction and a hearing. How
can he be denied ?. In brief, if one abutting owner is en-
titled to, by injunction, maintain the public right, why is
not each successively -
If appellant may upon his bill obtain an injunction re-
straining the use of the street by appellee, why may not
another abutting property owner in another and proper
proceeding, obtain an order compelling appellee to com-
ply with its contract with the public, by placing rails
upon and running cars for the carriage of passengers
along the streets 2
The difficulty with proceedings at the suit of individual
owners of abutting property, to either restrain or compel
the use of the public street for a particular purpose, is
that such suit concludes no one but the parties to it. The
very decree and restraining order appellant seeks, he
might for a selfish and personal consideration, release;
he can establish only his property right, and that he may
barter in any lawful way.
For these and other reasons it is well established that
the attorney-general is the proper party to represent the
public, and a bill will not lie at the instance of an indi-
vidual to restrain the doing of that from which the com-
plainant will suffer no damage other than that which the
public sustain.
I I
The abutting property owners do not, in this as in
some other states, own the fee of the street. The street
is held by the public authorities in trust for the use of
the public. The abutting owner has therefrom a right
of access to his property, a right to the light and air that
naturally come to his premises from the public way, but
to the use of or to control the use to which the street
may be put, he has no more right than any of the other
millions for whose convenience the highway exists. If
by reason of the taking of the street for a new public
use his property is specially damaged, he is entitled to
recover such damage in an action at law. To one who
desires, at his home, quiet and peace, it may be annoy-
ing that thousands should pass his door in noisy omni-
buses or crowded cars. The right, however, to say who
shall ride or walk past his door does not belong to him.
The street is for the use of the public, of which he is but
OIl 62.
Before the public authorities can give any one the
right to lay railroad tracks past his property, the Consent
of a majority of the property owners of abutting property
must be had; and with such consent, the right to put
down such tracks can only be given for public purposes.
The street is servient to the public, for its use; and
neither by the authorities of the city or by the consent
of the abutting owners, can the public be excluded there-
from.
In endeavoring to restrain the running of street cars
for the accommodation of the public, appellant is assert-
ing that he has a private right in the street Superior to
that of the public, or that he is entitled to represent the
public in his suit and conclude the millions by a decree
rendered in litigation to which they are not parties.
I 2
In support of the position that in such a case as this a
court of equity will, at the suit of an abutting property
Owner, restrain the running of cars upon the street, a
large number of authorities have been cited, a few of
which we have examined; taking them in the order of
citation, the first to which our attention is called is that
of Hickey v. The Chicago and Western /ndiana Rai/way
Company, 6 Ill. Appeals, I 72.
The opinion in this case was by the late Judge McAl-
lister, and contains among other things, upon pages 186
and 187, the following: -
The bill in this case contains some eighty-two com-
plainants. This multiplicity of plaintiffs, while it tends
to obscure the merits and embarrass the remedy, was
dictated, doubtless, by the fear of the suit being quietly
disposed of by settlement with plaintiffs, if there were
but few of them. As to thirty-five of these plaintiffs,
the bill show by its statements, their ownership, respect-
ively, of real estate which the railroad company proposes
under said ordinance to take and enter upon, or which is
so located as to be specially injured by the construction
of the railroad within the city under said ordinance. As
to these, the bill shows a clear case for the interposition
of equity by injunction, on the ground that the act threat-
ened would be in excess of the power of the Corporation;
the entry upon plaintiffs' lands would not be a mere tres-
pass, but a continuing, permanent injury to the owners
of the land to be taken, and those whose premises were
so situated as that they would receive special injury from
the construction of the railroad, are equally entitled to
the relief sought. As to the other plaintiffs, in respect
to whose other property they “would be more or less
“ injured,” we do not think the bill shows any case.
I 3
There must be some special injury, Miſham v. Sharp,
supra, and this must be shown by facts stated. * * *
“The bill was therefore well brought as to all plaintiffs
“whose land was about to be taken or suffer special
“ injury by the construction of the said railroad within
“ the city. As to the other plaintiffs, no case is stated
“within the jurisdiction of the court, though they asked
“relief against the same injury upon the same ground.”
So far, then, from this case being an authority for the
position assumed by appellant, it is directly the reverse;
as to all the complainants in this bill occupying the posi-
tion which appellant does here, the bill was dismissed.
The next case cited is that of Cobb v. Z. & St. L. R. R.
Co., 68 Ill., 233. The Opinion begins with this state-
ment:
“In December, 1871, plaintiff in error filed a bill in
“ the St. Clair Circuit court against defendant in error to
“restrain it from laying its railroad track over his land.”
To this bill defendant filed a demurrer, which the court
below sustained and dismissed the bill. The opinion of
the Court On page 234 goes On:
“It is admitted, then, that complainant was in posses-
“sion, and has such title as authorized him to resort to
“ the courts for protection of his rights; that the com-
“ pany, without any pretense of right, were threatening
“to make a forcible entry upon his land to make a per-
“manent structure, and to remove his sand and soil for
Sale, and by So doing it would endanger the de-
struction of the property itself, by turning the cur-
{ {
{ {
{
“rent of the river over his land, and only that they may
“convert his soil and sand into money. As admitted,
“this presents a case of a wanton, wilfull and most Op-
14
“pressive character. It is in utter disregard of right and
“in defiance Df law, and devoid of every principle of
“fairness. When an answer shall be interposed, it is to
“ be hoped that it may be shown that there was not such
“recklessness as is charged in the bill.”
It is quite manifest that the relief furnished in such
Case does not warrant the granting of appellant's prayer.
The next Illinois case to which our attention is called
is that of Sme// v. Bures/, I 23 Ill., I 5 I, in which it
was held that a court of equity would restrain the suc-
cessor of a Corporation owning and Operating a plank
road for the use of the public, with power to erect toll-
gates thereon, from putting up a toll-gate on such road
in such a way and at such a place as to materially inter-
fere with the use of two public highways, the erection
of such toll-gate being in excess of the power of such
plank road corporation; the Court holding that the act
sought to be restrained would be but the creation of a
nuisance, and would be especially injurious to the Com-
plainant's property and materially interfere with their
business.
The next Illinois case in the order of citation is that
of Field v. Bar/img, 149 Ill., 556. This was a suit to
restrain the construction of a bridge Over an alley in the
City of Chicago. It appeared that the complainant and
the defendant claimed title from a common source their
grantor having made a record and subdivision in which
said alley appeared as appurtenant and Servient to the
respective lots of the parties to the litigation. The
opinion Says on page 574:
“But from an examination of all the evidence we are
“satisfied that the erection of the structure would result
I 5
“in serious damage to appellee's property, different in
“character from that sustained by the public.”
That case is clearly not authority for what appellant
asks here; the parties do not claim title from a common
source and appellant does not claim that his property
will sustain damage different in character from that sus-
tained by the public.
The next case is that of Zearing v. Raber, 74 Ill.,
4O9.
The statement is that this was a bill in chancery to
prevent a threatened obstruction of the use of a street
or way, and that the facts appear in the opinion. The
opinion sets forth the laying out by the owners of a cer–
tain lot, of a street across the same and the preparing of
a map showing such street, which map was, however,
neither acknowledged nor recorded; and the conveyance
by such owners of real property with reference to such
street. The opinion then states that the question is
whether a party who had conveyed premises referring to
and describing such street can now be heard to deny the
existence of a street, and concludes:
“The evidence shows a threatened nuisance, tending
“ to deprive appellee and others of the full and free use
“ of this street, as he is entitled to have it used, and
“ this is a well recognized ground for equitable interpo-
“sition.’’
In the present case appellant does not claim that in
any way or wise is he about to be deprived of any use
of the street.
Our attention is next called to the case of the Village
of Princevi //e v. A uſeſ, et al., 77 Ill., 325.
This was a bill filed to restrain the village trustee
S
I 6
from moving a town hall from the site it then occupied
and placing it on a public Square.
The court held that the evidence clearly shows that it
was the intention of the proprietors of the town in dedi-
cating this Square that it should forever remain open for
the convenience and common benefit of the inhabitants
of the village; that the village authorities held the same
in trust to be devoted to the uses and purposes for
which it was dedicated, and that an individual might
restrain the public authorities from converting the prop-
erty to a use different from that for which they held it
in trust.
Appellant's bill does not contain any charge that the
street held in trust for the use of the public is about to
be diverted to other uses. -
The next case is that of the Attorney General v. The
Chicago and Evanston Railway Co., I I 2 Ill., 52O, that
being a proceeding by the attorney-general, who, as we
have before stated, is the proper officer to represent the
public, can not be authority for the position that a private
individual may, by his private suit, determine the man-
ner in which the public shall pass over a common high-
way. * -
The next case cited is that of the City of /acksonville
v. The ſacksonville Rai/way Co., 67 Ill., 540.
The court in its opinion said:
“By virtue of its charter, the railway company claim
“the right to construct the track of its road across a pub-
“lic square, operate its road there, and thus frustrate the
“ the original purpose for which the ground was dedi-
“cated, and destroy its future benefit and enjoyment as
“a public park.
17
“This bill was filed to restrain the company from such
“an appropriation of this public ground.”
This case is merely one to restrain the diversion of
trust property to uses entirely foreign to those set forth
in the deed creating the trust.
The next case is that of the Vi//age of Brook/yn v.
Smith, IO4 Ill., 429.
The court in its opinion upon page 439, said:
“The case presented seems to be that of an intruder
“ upon the public street of a village seeking an injunction
“ against the village authorities to prevent their interfer-
“ence with his operations in cutting and removing ice
“ from the streets, that is, a trespasser asking against
“the legal owner freedom from interruption in the des-
“poilment of the latter's property. We perceive no
“right in the complainant which may lay claim to the
“interposition of a court of equity for its protection.”
Comment upon such an opinion, is in this case unnec-
essary. .
The next case is that of Ear// v. Chicago, I 36 Ill., 277.
The opinion of the court on page 288 contains the fol-
lowing:
“Where there is a special trust in favor of an adjoining
“property holder, or a special injury, a bill or suit may
“be maintained by an individual in respect to a public
“street or highway.
City of C//ca.go v. Union /37/i/ding Asso-
ciation, I O2 Ill., 379.
McDona/o v. AEng/s/, 8.5 /a/. , 232.
Ozzazva Gas/g// Co. v. 7% om/son, 39 /a/.,
598.
I 8
The controversy in which this language is used is
stated upon page 283 to be as follows:
“This controversy grows out of a bill filed by the ap-
“ pellant against the City of Chicago and others, for the
“ purpose of establishing her title to said piece of ground
“ fronting thirty-three feet on Oakley avenue and running
“back, of a uniform width, in a westerly direction, one
“hundred and ten feet. Such proceedings were had in
“the cause as that the appellee, Jackson, upon his own
“ petition was allowed to answer and make defense to
“the original bill, and was also permitted to prosecute
“a cross-bill or cross-petition, the prayers of which were,
“ that the quitclaim deeds to the thirty-three feet of
“land should be set aside, appellant required to remove
“her fence, the land declared to be a part of Wilcox
“street, appellee declared to have a perpetual easement
“therein as a part of Such Street, and appellant per-
“ petually enjoined from enclosing or obstructing, or
“claiming ownership, in Said piece of ground.”
The next case to which our attention is called is that
of the Maywood Co. et al. v. Viſ/age of Maywood cf.
a/., I I 8 Ill., 6 I.
On page 65 is a statement of what the controversy was
concerning.
“This is a bill brought in the Superior-court of Cook
“county, by appellees against appellants, for the pur-
“pose of having a certain Square in said village, known
“ as Block 58 (except certain hotel grounds in the north-
“west corner thereof), declared to be a public park, and
“praying that appellant company Surrender the Control
“ and management thereof to the trustees of said village,
“ and that a trust deed executed thereon by the com-
I9
“pany to Botsford, trustee, be set aside, and that appel-
“lants be enjoined from interfering with the use of said
“Square as a public park, by the said village and its resi-
“dents and lot owners, and from selling or conveying the
“same, or taking any steps to foreclose the trust deed
“thereon, etc. The beneficiaries in the trust deed were
“ made parties, under the name of “unknown owners.’ ”
Upon page 72 the court said:
“A court of equity has jurisdiction to entertain the
“bill filed in this case. As a foreclosure of the trust
“deed would probably result in the ownership of the
“‘park' by private parties, there was a threatened per-
“version of the trust upon which the property was held.
“Equity will interpose to prevent the perversion of a
“trust. City of Jacksonville v. Jacksonville Ry. Co.,
“supra. Again, the evidence shows a threatened nuis-
“ance, tending to deprive appellees and others of the
“full and free use of this park, as they were entitled to
“ have it used. This is a well recognized ground for
“equitable interposition. Zearing v. Raber, supra.”
In the case at bar no intended perversion of the trust
is charged, neither is it alleged that appellant is about to
be deprived of the full and free use of the street in ques-
tion.
Our attention is next called to the case of McKenzie v.
F//ioff, I 34 Ill., I 56. This case was a contest Over a
right to a private right of way. The case of Beg v. The
Chicago, R. J. & P. R. R. Co., 23 Ill. Appeals, I 37, is
next called to our attention.
Upon page 140, the court said:
“In cases like this, we think, although the fee of the
“street may be in the city, yet the city having no power
2O
“to grant the privilege, the appellant had a right to file
“this bill in equity to prevent the erection of a nuisance
“in the public highway opposite her premises, and which
“closed out her ingress and egress in a great measure to
“ and from the front of her property, as is stated in the
“bill, rendering her property practically worthless.
“Green v. Oaks, I 7 Ill., 249; Craig v. People, 47 Ill.,
“487, 496; C. & W. J. R. R. Co. v. Dalmöar, IOO Ill.,
“ I I O.”
In the bill of appellant filed in the case at bar it is not
alleged that ingress or egress to his property will be in
any measure obstructed by the proposed railway.
Our attention is next called to the case of Carter v.
The City of Chicago et al., 57 Ill., 283.
The court in the opinion, upon pages 286, 287 and 288,
said: -
“The facts alleged in this bill, of themselves, without
“any specific allegation of fraudulent design, wantonness
“ or oppression, show as clear a case of gross abuse of
“ power and oppression, as could well be described on
“ paper.
“In cities the sidewalks are considered a part of the
“ public streets, and, as such, are to be kept, like the
“streets themselves, in a safe and convenient state of re-
“pair through their entire width.
“The acts begun and threatened, and whose consum-
“mation this bill seeks to prevent, are both the destruc-
“tion and permanent deprivation, by the board of public
“works, and other city authorities, of a sidewalk upon
“the west side of Franklin street; while one of unusual
“width is given upon the east side, and this through mere
“wantonness, oppressive abuse of power, breach of trust,
*
2 I
" .
“ and a fraudulent scheme and design on the part of the
4
{
city and board of public works, to injure, annoy and
oppress the plaintiff and other property owners favored
with these court yards. And what seems strange is, that
{
é
{
4.
{
at this age of equity jurisprudence, there, should be
doubt as the jurisdiction of a court of equity to grant
{
{
relief; yet that is the only question really to be involved
in this case.
+ 2& 33. -X- -X-
“The question for decision, is not whether a court of
equity will interfere with the exercise within its proper
limits, of a public political power vested in the city,
which necessarily involves the largest discretion; but
whether in the case of a plain departure from the power
which the law has vested in it, and from fraudulent and
malicious motives, it is, by the use of property which
it holds in trust for the benefit of the public, about to
do an irreparable injury to the property of individvals,
“a court of equity will intervene to prevent such injury.”
The facts of this case are certainly very different from
anything appearing in the present. The case of Green v.
Oakes, I 7 Ill., 249, to which our attention is next called
was a bill in chancery to enjoin the obstruction of a
public road, it appearing that the appellee had avowed
his purpose to obstruct the same by fences and gates at
two different points. No threatened obstruction to the
public street is charged by the appellant.
The case of S/c/son v. C. & /. A. R. Co., 75 Ill., 74,
was a bill to restrain a railroad Company from construct-
ing and Operating its road in a street until damages to
adjacent lots should be ascertained and paid. The court
on page 75, said:
22
“It may be regarded as the settled rule of this State,
“ that an Owner of an abutting lot can not prevent the
“use of a street for a railway when such use is permitted
“ by the city and is authorized by an act of the legisla-
“ture.’’ .* -
And upon page 80 the Opinion goes on, “holding as
“we do, there is no ground for the interference of a court
“ of equity. * * The injunction was properly
“denied, and the decree dismissing the bill will be af-
“firmed.”
The case of Craig v. The People of the State of ///-
27202s, ea re/. AVezz//e, 47 Ill., 487, to which our atten-
tion is next called, was one in which a bill was filed by
the state's attorney against appellants to enjoin them
from closing a certain road and certain bridges so as to
interfere with the free use of the same by the people.
The attorney-general, as before stated, is the proper
person to represent the public in cases of this kind.
The case of C. & W. W. R. R. v. Oz//zôar, IOO Ill.,
I IO, was a bill in equity to restrain a railroad from fur-
ther proceeding in the construction of its road and in
certain condemnation proceedings which they had insti-
tuted against the complainant.
The Superior court of Cook county heard the case
upon the bill and answer and entered a decree pro forma
that the ordinance under which said railroad was operat-
ing was illegal and void upon its face; that said ordin-
ance is also illegal and void because no petition of prop-
erty owners was filed prior to its passage; that the pass-
age of a valid ordinance locating the precise route of
the railroad and consenting to the crossing of the streets
and alleys upon Such route is a condition precedent to
23
the exercise by the railroad company of the power of
eminent domain to acquire property within the city.
The Opinion of the Supreme Court, on page 1 2 5, opens
with this sentence: “The decree in this case is clearly
y
“ erroneous.
The case of the Wiggins Ferry Co. v. B. St. L. U.
A'y. Co., IO7 Ill., 450, to which our attention is next
Called, was, as appears in a statement of the opinion of
the court, concerning the following matter:
“This suit is brought upon the legal hypothesis that
“ the permission of the municipal authorities alone did not
{
{
authorize the Company to Construct and operate its road
{
(
in one of the public streets of the city in the manner and
(
“for the purposes proposed, alone, but that in addition to
{
{
this the company was bound to obtain the assent of the
{
(
requisite number of the abutting property owners, which
{
{
it is conceded was not done in this case. The trial
{
t
Court, held, as a matter of law, that under the circum-
{
{
stances of this case it was not necessary to obtain the
{
{
assent of the abutting lot owners, or any portion of them,
{
{
to warrant the company in constructing and operating
{
{
its road in the manner proposed, that for such purpose
{
t
the grant of the right of way by the city was all that
{
{
was required, and this ruling of the trial Court presents
“ the main question for determination on this appeal.”
The decree of the Circuit court was affirmed.
Numerous cases in other states in support of the con-
tention of appellant that in Such a case as this a prop-
erty owner Who Sustains no damage not common to the
public, may restrain the public use of a common high-
way for purposes not inconsistent with the trust for
which it is held, have been cited. We have not seen fit
24
to examine all of these. We are aware that outside the
State of Illinois, authorities may be found sustaining the
position of appellant, but life is too short and the time
of this court with other matters too much occupied tC)
permit us, at this time, to do more than to examine, as
we have, the long list of Illinois authorities cited by ap-
pellant, none of which sustain his contention.
While an abutting property owner can not assume to
represent the public and by his individual suit conclude
its rights (Davis v. Mayer, 2 Duer, 663; Winterbottom
v. Lord Derby, Law R. 2, 4, 316; Harts/torm v. South
Reading, 3 Allen, 501 : McDonald v. Eng/is/, 85 Ill.,
232; High on Injunctions, Sec. 762; Pomeroy's Ég.
Juris, Sec. 1379; City of East St. Louis v. O'Flinn, I 19
Ill., 200; City of Chicago v. Union B/dg. Assn., Io2
Ill., 379; Patterson v. C., D. &. V. Ry. Co., 75 Ill.,
588; Vanderpoe/ et al. v. The West & South Towns Ry.
Co., Chicago Lega/AWezws, March 24, 1894), for damage,
special and peculiar to himself he has, under the consti-
tution and laws of this state, a remedy at law. The fact
that by permission to use the street for a particular pur-
pose, an abutting property Owner will be spec-
ially damaged, affords no ground for restraining such
use So long as the property-holder is able to recover
and collect all the damage he suffers: Vanderpoc/
v. West & Sout/ Towns Æy. Co., supra; Zoire v.
AVort/ Chicago St. Ry. Co., 32 Fed. Rep., 270; Peo//e
v. Kerr, 27 N. Y., 188; Moses v. Pittsburg R. R., 2 I
Ill., 5 I 6, 523; Stetson v. C. & E. /. R. R., 75 Ill., 74;
Patterson v. C. D. & V. R. K., /a/., 588; Peoria, etc.,
R. R. v. Schertz, 64 Ill., 135; C. & E. /. A. R. v.
Loeb, I 18 Ill., 203; C. & E. /. R. R. v. Ayers, IO6 Ill.,
5 II; Pittsburg & Ft. Wayne R. R. v. Reic/, IOI Ill.,
25
5 I I, C. & E. J. R. R. v. McAuley, I 2 I Ill., 161; Penn.
M. L. M. Co. v. Heiss, I 4 I Ill., 35, 58, 59; Tibóetts v.
The West & South Towns Street Ry. Co., 54 Ill. App.,
18o; Same v. Same, 38 N. E. Rep., 664; Nort/; C/hicago
Street Ry. Co. v. Cheetham, Ill. App., opinion filed
April 4, 1895.
The decree of the Circuit court sustaining the de-
murrer to and dismissing the bill is affirmed.
Affirmed.
IN THE
} 0.
Supreme Court of #llinois,
NORTHERN GRAND DIVISION. 5
OCTOBE R T E R N1, A. D. 1895.
FRANK KIRCHMAN AND JOSEF
BAUM RUK,
Appellants,
Z/S.
& On Appeal from
THE WEST AND SOUTH TOWNS g Appellate Court,
STREET RAILWAY COMPANY AND THE First District.
CHICAGO GENERAL STREET
RAILWAY COMPANY ET AL.,
Appellees.
BRIEF AND ARGUMENT FOR APPELLANTS,
J. G. KRAL, AND
CONDEE & ROSE,
ATTORN EYS FOR APPELLANTS.
B. A R N A R D & Nº. 1 LL.B. R., P R N N T B R S.
TN THE
SUPREME COURT OF ILLINOIS,
NORTHERN GRAND DIVISION,
OCTOBER TERM. A. D. 1895.
FRANK KIRCHMAN AND JOSEF
BAUMRUK,
Appellants,
7)S.
On Appeal from
THE WEST AND SOUTH TOWNS Appellate Court.
STREET RAILWAY COMPANY AND THE Ifirst District,
CHICAGO GENERAL STREET
RAILWAY COMPANY ET AL.,
AApellees.
BRIEF AND ARGUMENT FOR APPELLANTS,
STATEMENT OF FACTS.
..MAY IT PLEASE THE COURT :
On the fourteenth day of October, 1893, Frank Kirch-
man and Joseph Baumruk, appellants herein, together
with others, filed their bill in equity in the Circuit court
of Cook county, on behalf of themselves, and all other
owners of lots fronting and abutting on Kedzie avenue
between 22d and 31st streets, similarly situated and
affected as themselves, against the West and South
Towns Street Railway Company and the Chicago Gen-
eral Street Railway Company, two of the appellees here-
in, which alleges that on and long prior to the 5th day of
2
April, A. D. 1893, complainants were, had been, and
still at the time of the filing of the bill are, each severally
the owners in fee respectively of certain lots and real
estate situated in the city of Chicago in Cook county,
fronting and abutting on Kedzie avenue in said city, be-
tween 22d and 31st streets (describing the lots owned by
each complainant.)
That the premises so owned by the complainants have
a frontage of more than 2,500 feet on Kedzie avenue be-
tween West 22d and 3 Ist streets, and that all the prem-
ises described as belonging to the complainants abut on
Kedzie avenue between 22d and 3 Ist streets in the city
of Chicago, in the county of Cook and state of Illi-
Il OIS.
That each of the several owners and proprietors of the
original subdivisions and addition in which the complain-
ants' lots are situated respectively, prior to the time of
complainants acquiring their title to their respective lots
platted and subdivided the said several tracts of land
into lots, blocks and streets, including the said portion
of Kedzie avenue thereinbefore in the said bill men-
tioned as an open street, upon which said Complain-
ants' said several lots so abutted and fronted, and
upon which such several plats and subdivisions the sev-
eral owners and proprietors thereof, in platting and
laying out of said subdivisions, respectively caused to be
written upon the said plats thereof not only the numbers
of the lots and blocks to which complainants have
since respectively so acquired their title, but also caused
to be written on said plats the words, “Kedzie Avenue '’
or “ Kedzie Ave.,’’ in the space so left for said Kedzie
avenue in front of complainants' before mentioned lots,
and that the complainants respectively purchased and
3
acquired their said title to their said lots with reference
to such plat and subdivisions so made by the owners and
proprietors of such subdivisions with all the property
rights, easements and other beneficial interests in said
Kedzie avenue So in front of complainants' said lots re-
spectively, not only for access to complainants' said lots,
, but also for the free and unobstructed use of the said
street in front of complainants' said several lots, and
that complainants are each entitled to the enjoyment and
beneficial use of such open space over the surface of said
Kedzie avenue in front of their said several lots respect-
ively for such access to and such general use of as a part
of and appurtenant to complainants' said several lots SO
acquired and owned by them respectively, which said
property rights, easements and beneficial interests of
complainants in said open space on Kedzie avenue in
front of complainants' said several lots respectively they
have each hitherto rightfully enjoyed as incident or ap-
purtenant to and as a part of their said lots so owned by
them respectively until the defendants wrongfully at-
tempted or threatened to encroach upon the same by the
building of a street railway in said street in front of com-
plainants' said lots, as thereinafter stated.
That heretofore, to wit: on the 5th day of April, A.
D. 1893, the city council of the city of Chicago, at the
instance and request of the West and South Towns
Street Railway Company, one of the defendants in this
Suit, without authority of law assumed to pass an ordi-
nance of Said city, a copy of which is annexed to said
bill and marked exhibit “A,” and to which, by the said
bill, reference is made, as a part thereof. *
That by Said alleged ordinance it was provided among
Other things as follows: “In consideration of the ac-
4
“ceptance hereof and the undertaking of the West and
“South Towns Street Railway Company to comply with
“ the provisions of this ordinance, said company, its suc-
“ cessors or assigns, are hereby given authority and con-
“sent to construct, operate and maintain a single or
“ double-track street railway with all necessary and
“convenient curves, turnouts, side-tracks, connections,
‘‘ and switches in, upon, over, and along the tracks men—
“tioned, as followes: On West 25th street, beginning at
“ the west line of Lawndale avenue and extending to the
‘‘ east line of Rockwell street; on Rockwell street, com-
“mencing at the south line of 26th street and extending
“ to the north line of I oth street; on Kedzie avenue,
‘‘ commencing at the north line of 22d street and extend-
‘‘ ing to the south line of 3 Ist street; on Homan avenue
‘‘ from the north line of 22d street to the south line of
“ 23d street, including the right to cross all connecting,
‘‘ abutting or intersecting streets, avenues, courts, places,
‘‘ alleys and public highways.”
That the city council of the city of Chicago so assumed
to pass said ordinance, giving such permission and authority
to said West and South Towns Street Railway Company
without the petition therefor of the owners of the land rep-
resenting more than one-half of the frontage of so much of
said Kedzie avenue as is so sought to be used for said
railway, and although the said portions of said Kedzie
avenue so sought to be used for such railway, viz: that
part of said Kedzie avenue extending from the north line
of 22d street, the initial point of such signing, and the
initial point from which the said ordinance purported to
grant permission and authority to the said company to
build its railway to the South line of 31st Street is, to wit:
one mile and a small fraction of a mile in length; yet the
5.
said city council so assumed to pass said ordinance and
give such permission to so occupy said Kedzie avenue
with said railway without the petition therefor of the
owners of the land representing more than one-half of
the frontage of the said mile and the said fractional part
of a mile, or of either the said mile or the said fractional
part of a mile of the said part of Kedzie avenue so sought
to be used for the purpose of said railway in the manner
aforesaid, as required by the statute in that behalf, but
on the contrary, complainants aver that at the said time
when the said city Council so passed, or assumed to pass,
said ordinance, assuming to give such permission, said
city council did not have before it, and said ordinance
was not passed, nor was such assumed permissions so.
granted to said West and South Towns Street Railway
Company on the petition of the owners of the land rep-
resenting so much as one-half of the frontage of the said
part of said Kedzie avenue so sought to be used for the
purposes of said railway, nor for either the said mile or
the said fractional part of a mile so upon Kedzie avenue
as aforesaid, within the points aforesaid.
The bill then states upon information and belief, and
charges the fact to be, that the only petitions the said
city council had before it when the said ordinance was
passed, were the following:
“ To the Honorable Mayor and Aldermen of the City of
Chicago:
“The undersigned owners of frontage described oppo-
“ site their names, respectfully petition that the West
“ and South Towns Street Railway Company (organized
‘‘ under the general incorporation law of Illinois) be
“granted the right to lay down a surface street railway
‘‘ on Kedzie avenue, beginning at 22d and extending to
“3 Ist street.
6
“It being understood that said company cannot con-
‘‘ struct or operate a locomotive railroad as is provided
“ for in an act for the incorporation and operation of
‘‘ such railroads.” Chapter II.4.
JName of Subdi- Number of
Owner. Sub-lot. Lot. Block. vision. Feet Front.
Roland Lockwood,
by S. R. Hurford,
Agt. 1 Steele Subdn,
of S. E. 6OO
J. E. Kinsella, I to I 3 I 3 } and E. # of
S. W. #, Sec.
26, 39, I 3. 325.
“ To the Honorable Mayor and Aldermen of the City of
‘‘ Chicago:
“The undersigned owners of frontage described oppo-
site their names, respectfully petition that the West
and South Towns Street Railway Company (organized
under the general incorporation law of Illinois), be
granted the right to lay down a surface street railway
on Kedzie avenue, beginning at 22d street and ex-
tending to 39th street, or between such other points
on said street as your honorable body may determine.
Said road to be constructed at the time said street is
paved, and said original pavement to be paid for by
&
{
{
{
{
{
{
{
&
(
•
&
&
*
&
{
{
‘.
{
“ the property owners.
‘‘ It being understood that said company cannot con-
“struct or operate a locomotive railroad as is provided
‘‘ for in an act for the incorporation and operation of
‘‘, such railroads.” -
Name of Number of
Owner. Sub-lot. Block. Subdivision. Feet Front.
Chas. H.
Bromann, I to I2 I Kedzie Av. Land 544 *
I to 22 8 Ass’n Subdn. 291.8
Between 24th St.
and 26th St.
( &
{
{
&
{
6
4.
&
{
{
(
&
{
&
(
&
(
&
&
|
&
&
&
{
6
{
{
To the Honorable Mayor and Aldermen of the City of
“Chicago:
“The undersigned owners of frontage described oppo-
site their names respectfully petition that the West
and South Towns Street Railway Company (organized
under the general incorporation law of Illinois) be
granted the right to lay down a surface street railway
on Kedzie avenue, beginning at 22d Street and extend-
ing to 39th street, or between such other points on
said street as your honorable body may determine.
Said road to be constructed at the time said street is
paved, and said original pavement to be paid for by
the property owners.
“It being understood that said company cannot con-
struct or operate a locomotive railroad, as is provided
for in an act for the incorporation and operation of
such railroads.
No. of
Sub, Feet
Name of Owner, Lot. Lot. Block. Subdivision. Front-
Robert R. Rasmussen. 16 1 Sub. of W. 12
** 17 Acr. S. 64
6 & { { N. W. A 25
“ 6 & 45 89, 13 48
. . . 6 % 46 2 46 & 48
{ % { % 24
6 & --~f 6 25
{ % & 6 26 2 6 : 96
6 (; 6 & 29
{ { “ 26 Superior Court.
Com.
{ % 6 6. to 8 & 9 Partition W. Já
{ % 6 & 48 S. W. 4 25, 39,
13. 549
6 4. tº 6 18
6 & { % to 20 & 21 6 4 481 3/10
* { 6 ſ; 82
& 4 & 4 34
W. & { % to 22 § { 357 3/4
6 (; { % 48
The bill then represents and shows on information and
belief that the distance on Kedzie avenue from the north
line of 22d street to the south line of 3 Ist street, is 5,361
feet; that the total frontage of the lots abutting on said
Kedzie avenue, between the two points as aforesaid, is
9,654 feet; that half of such lot frontage is 4,827 feet,
and that the frontage signed for as represented by the
foregoing petition is only 3, 34O 96/IOO feet, and that
such signing is 1,486 4./IOO feet less than one-half lot
frontage on said Kedzie avenue, between the points as
aforesaid, and that the total lot frontage signed in the
said mile is only 3,340.96 feet, and that there is no sign-
ing whatever for the land abutting on the said fractional
mile, or in anywise relating to the said fractional part of
a mile, and that there was no other or further petition be"
9
fore the city council, in anywise relating to the said Ked-
zie avenue, between the points aforesaid, at the time of
the assumed passage of the pretended ordinance as afore-
Said.
The bill further shows upon information and belief, and
charges the fact to be that the signers of the foregoing
petition did not in any instance at the time of such sign-
ing reside upon said Kedzie avenue, between the points
aforesaid,
The bill then denies that the owners of the land rep-
resenting more than one-half of the frontage on said
Kedzie avenue, between the points aforesaid, or of the
said mile and fraction of a mile thereof, or of either the
said mile or the said fraction of a mile so sought to be
used for the said purposes of said railway petitioned the
said city Council for the passage of said pretended ordi-
nance, or for the granting of the permission to said West
and South Towns Street Railway Company, to construct
or maintain said railway in, on or over said Kedzie ave-
nue, as expressed in said pretended ordinance,
The bill then avers that the said city council was in-
duced by the West and South Towns Street Railway
Company to pass said ordinance, and assume to grant the
said railway company the permission therein expressed
without the petition of the owners of more than one-
half of such frontage on said Kedzie avenue between the
points as aforesaid, so sought to be used for said railway
purposes, and without the petition of the owners of more
than one-half of the frontage on the said mile, and the
Said fraction of a mile, or of either said mile or said frac-
tion of a mile, as required by the statute in that behalf.
The bill then states that complainants are advised, and
insist and claim that the said ordinance and the permis-
sion therein expressed are wholly void.
IO
The bill then shows on information and belief, and
charges the fact to be that the defendant, the West and
South Towns Street Railway Company, a pretended cor-
poration, did on, to wit: the 21st day of August, A. D.
1893, lease the line of it, the West and South Towns
Street Railway Company, together with all rights and
privileges of it, the said West and South Towns Street
Railway Company, to the Chicago General Street Rail-
way Company, another pretended corporation, the other
of the defendants hereinbefore named. The bill then
represents and shows that the West and South Towns
Street Railway Company, and the Chicago General Street
Railway Company, either or both of them, without any
other authority therefor, or consent or permission of
the said city council of the city of Chicago, pretended
to be conferred by the said ordinance so passed with-
out authority of law and without complying with and
conforming to the statutes in that behalf for the pro-
tection of complainants as owners of the said land and
property fronting and abutting On Said Kedzie avenue,
and in utter contempt and defiance of the rights of
complainants in the premises, have or has commenced
the construction of a railway in said Kedzie avenue, be-
tween the points as aforesaid, and have or has in part
built or constructed a small portion thereof, but in a most
dangerous and useless manner, as thereinafter stated and
set forth; that said companies threaten to and, unless re-
strained by this honorable court, will proceed at once to
complete said railway in the manner as aforesaid, upon
said Kedzie avenue between the points as aforesaid, in front
of complainants said lots and premises, and thereby in-
flict upon complainants great and irreparable injury and
damage. The bill then alleges that as yet none of the
I I.
said road or railway is completed in front of the prem-
ises of complainants or of any of them.
The bill further represents and shows that the said
road, in So far as the same is now built, is laid upon the
surface of the roadbed of said Kedzie avenue, and con-
sists of thick ties laid upon the surface of the roadbed, as
aforesaid, at each rail intersection, and that rails are
strung upon the ties so laid, and that there are no other
ties underneath the said rails than those at the rail inter-
sections, as aforesaid, and that the railway, as So laid, is
a menace to life and limb, and is perfectly useless as a
railway track,
The bill then shows, upon information and belief, that
ten days public notice of the time and place of present-
ing the petitions of said West and South Towns Street
Railway Company to the city council of the City of Chi-
cago for the passage of said ordinance, or of the grant-
ing of the permission therein expressed to construct said
railway in said Kedzie avenue, as aforesaid, was not first
given by publication in any newspaper published in Said
City of Chicago or county of Cook, as required by the
statute in that behalf, but on the contrary, such ordinance
was so passed without any petition therefor or notice
thereof being so published, and that for this reason also the
bill submits that said ordinance and the permission therein
expressed is absolutely void and confers no authority
whatever upon said West and South Towns Street Rail-
way Company to construct its said railway in Said Kedzie
avenue, between the points as aforesaid.
The bill then represents and shows, upon information
and belief, that a large portion of the property signed for
in the said petition, upon which the said assumed Ordi-
nance purports to be based, was signed by others than
I 2
the owners thereof; that the amount so signed in the said
petitions by others than the owners aforesaid in the first
mile from the initial point on said Kedzie avenue is, to
wit: 2,204 46/IOO feet, as will fully and at large appear
by reference to the affidavit of Gustaf Carlson to the said
bill attached, and the accompanying statements together
with certified copies of the said petitions, all of which
are attached to the said bill as Exhibit “B,” and by ref-
erence thereto are made part thereof.
The bill then represents and shows, upon information
and belief, that a large portion of the property purport—
ing to be signed for in the said petition upon which the
said pretended ordinance was based, as aforesaid, were
signed by persons without any authority from those who
owned the several lots, on account of the frontage of
which such petitions purported to be signed, to wit: the
amount of 561 75/IOO feet in the said first mile, from the
initial point on Kedzie avenue as aforesaid, all of which
it is therein stated will fully and at large appear by
reference to the said Exhibit ‘‘ B.”
The bill then represents and shows that Kedzie avenue
is a residence street of narrow width, and is used by com-
plainants for driving purposes, and for the purpose of in-
gress and egress to and from their respective premises so
abutting on the same as aforesaid; that said companies,
or either of them, are so building said road that the said
street cannot be so used, but on the contrary, the said
road is laid upon the surface of the road-bed of said Ked-
zie avenne in such manner as to wholly obstruct travel
thereon, and that the laying of railway tracks in the
manner as aforesaid, or in any other manner, and the
running of cars thereon will greatly impede their ingress
and egress as aforesaid, and greatly injure the said Ked-
I 3
zie avenue between the points as aforesaid for the use of
complainants as a driveway, and that the laying of tracks
therein and the running of cars thereon, and the noise
caused by the same will be a great and peculiar special.
damage and injury to Complainants, and each and every
of them.
The bill further represents and shows that the said:
West and South Towns Street Railway Company and
the Chicago General Street Railway Company will, if
they have notice of an application for an injunction in
this cause, put at work upon the construction of the said:
railway upon the said Kedzie avenue, between the points
as aforesaid, large forces of workmen, and work night
and day until its completion; and therefore, complainants
say that unless the injunction issue herein without notice,
that great, permanent and irremediable damage will be
done to complainants, and each and every of them.
The bill then invokes the aid of the court of chancery,
and makes the said West and South Towns Street Rail-
way Company and the Chicago General Street Railway
Company defendants, and asks that a summons in chan-
cery issue out of and under the Seal of the court, com-
manding the defendants to appear at the next term of
court and answer the bill without oath, and that if they
can, they show cause why complainants should not have
the relief prayed for, and prays that on the hearing of
the cause, the said ordinance in So far as the same pur.
ports to grant permission and authority to the said de-
fendants, or either of them, to lay their or its said tracks
on that part of Kedzie avenue between the north line of
22d street and the south line of 3 Est street, be declared void,
and that a preliminary injunction issue without notice to
the said defendants, or either of them, restraining them
1.4
‘both, and each of them, their and its officers, agents,
servants and employes, and each and every of them, from
interfering in any manner with that part of Kedzie ave-
nue lying between the north line of 22d street and the
South line of 3 Ist street in the city of Chicago, and from
laying the tracks of said defendant companies, or either
of them, in and along said Kedzie avenue, between the
north line of 22d street and the south line of 3 Ist street,
and from subjecting the same in any manner to the use
of the defendant companies, and from subjecting the
same to the use of either of them, and that on the final
hearing of the cause, such preliminary injunction may be
made perpetual. The bill then prays for such other and
further relief, both general and special, as the court may
deem just and the nature of the case may require.
The ordinance, the validity of which is questioned by
the bill of complaint, and a certified copy of which is
Exhibit “A,” and, by reference, a part of the bill is as
follows:
It recites that the City of Chicago, by an ordinance
passed February 8, 1892, granted to the West and South
Towns Horse Railway Company, its successors and as-
signs, authority to construct a street railway on certain
portions of 22d street and Lawndale avenue, and that
on March 21, 1892, the said company changed its name
to West and South Towns Street Railway Company, and
that said company caused a notice to be published that on
Monday, September 2 I, I891, at 7:30 P. M., or as soon
thereafter as a hearing might be had, said company would
present its petition to the corporate authorities of the
City of Chicago, at the council chamber in the city hall
of said city, for consent to locate, construct and operate
I 5
a certain railroad on 22d street, beginning at Portland.
avenue, and extending to Crawford avenue; also on
Lawndale avenue, beginning at 22d street, and extend-
ing to 35th street, which said notice was duly published
in two newspapers of general circulation, published
weekly in said county and state, both of which were and
are in general circulation in the particular neighborhood
in and through which it was proposed to construct and
operate said railway, and that accordingly, at the time and
place mentioned in said notice, Said company presented
to said city council of the city of Chicago its petition for
an Ordinance substantially as proposed in said notice,’
which said petition was received by said council and re-
ferred to its committee on streets and alleys for the West
Division of said city, and that on or about October 19, -
1891, a petition of the owners of property fronting on
the line of said proposed railway was presented to said
city council of the City of Chicago by one of the mem-
bers of said council, together with a draft of an ordinance
granting the authority prayed for in and by said petition,
and that thereupon said petition of property owners was
duly referred to the department of public works for veri-
fication, with a direction after such verification to send
the same to the committee on streets and alleys for the
West Division of said city, and said draft or ordinance
was also thereupon duly referred to said committee for
their report thereon. And that on or about December
7, 1891, the commissioner of public works made his report
to said committee, showing that from the east line of Grove
street the owners of the land, representing more than one
half of the frontage of each mile and of each fractional
mile, of so much of the street as was sought to be used
for railway purposes had petitioned that said company
I6
be granted the right to use such portions of said street as
were mentioned in said report. And that on or about
December 2 I, A. D. 1891, a further petition of property
owners for the construction of the said proposed railway
was presented to the City Council of the City of Chicago,
praying the passage of the Ordinance granting authority
to said company to construct the street railway proposed
by such petitioners, which said last named petition was
thereupon duly referred to the Commissioner of Public
Works for verification, with a direction after such verifica-
tion to transmit the same to the Committee on Streets
and Alleys of the West Division of said city. And that on
or about January 4, A. D. 1892, a second draft of an
ordinance of said council for the construction of said pro-
posed street railway was presented to said Common
Council and duly referred to the said Committee on
Streets and Alleys for the West Division of said city.
That on or about January 18, 1892, the said Commit-
mittee on Streets and Alleys, for the West Division of the
City of Chicago, held a formal and open public hearing
on the matter of said petitions and proposed ordi-
nance, at which full opportunity was given to
all and any persons who might be con-
cerned therein, to attend and make any objections
which they might see fit to present, and no objec-
tion being made by or on behalf of any one to the pro-
posed ordinance, or to the petition of owners herein
mentioned, which meeting was held in the Council
Chamber of the said City of Chicago, and it appearing
to said committee that the owners of land representing
more than one-half of the frontage of each mile, and of
each fractional mile of so much of said streets, as were
described in said report of said commissioner, said com-
17
mittee decided to place on file the proposed ordinance
for the construction thereof and to adopt and recommend
to the City Council for passage a substitute therefor in
Conformity to the said report of the commissioner of
public works, that said committee thereupon adjourned,
and on the evening of the same day presented their said
report, and submitted said substitute so as aforesaid
adopted by them to the said city Council for passage.
And that thereupon said report and proposed ordinance
were ordered published and action thereon deferred pur-
Suant to law, and said report and ordinance were accord-
ingly published in full in the proceedings of said city
Council of the date last aforesaid. And that on or about
February I, I 892, a third petition of property-owners for
the construction of said railway was presented in a meeting
of said council of said city of Chicago, and duly referred
to said committee on streets and alleys for the west divis-
ion of said city. And that on or about February 8, 1892,
the said report and Ordinance So as aforesaid recom-
mended by said committee to said council, were brought
before said council for its action thereon, and no objec-
tion having been filed to said ordinance; and it appearing
to said council that the owners of the land representing
more than one-half of the frontage of each mile, and of
each fractional mile, or so much of the streets as were men-
tioned in said substitute ordinance, had petitioned for the
passage thereof, and that the public interests, required the
substitution of said ordinance of Said committee; there-
upon said council on motion concurred in said re-
port and by unanimous vote passed said ordinance, as
more fully and at large appears in the official report of
the proceedings of said council on the date last aforesaid,
and which said ordinance not having been vetoed by the
I 8
mayor of said city became valid and effectual by the lapse
of time without any objection thereto having been made.
And that on or about February 25, A. D. 1892, said com-
pany having previously filed in the office of the clerk of
said city its formal acceptance of the Ordinance aforesaid,
the same was thereupon, on the last day aforesaid, duly
presented by said clerk to said city Council, and upon
such presentation was duly placed on file. And that on
or about April 8, A. D. 1892, this respondent duly filed
the bond required by said ordinance, the same having
been duly approved by the mayor of said city. And that
on or about April 28, A. D. 1892, a permit for the con-
struction of said railway was duly issued by the commis–
sioner of public works of said city of Chicago authorizing
this respondent to construct its said railway under said
ordinance.
It then ordains as follows:
SECTION I. Upon the petition of the owners of the
land, representing more than one-half of the frontage of
each mile, and of each fractional mile of so much of
the streets herein named as is sought to be used for
railway purposes, and in consideration of the acceptance
hereof, and the undertaking of the West and South
Towns Street Railway Company to comply with the pro-
visions of this ordinance, said Company, its successors and
assigns, are hereby given authority and consent to Con-
struct, operate and maintain, a single or double-track
street railway, with all necessary and convenient curves,
turn-outs, side-tracks, connections and switches, in,
upon, over and along the streets mentioned as follows:
On West 25th street, beginning at the west line
of Lawndale avenue and extending to the east line of
Rockwell street; on Rockwell Street, commencing at the
I9
south line of 26th street and extending to the north line
of 19th street; on Kedzie avenue, commencing at the
north line of 22d Street and extending to the south line of
3 Ist street; on Homan avenue, from the north line of 22d
street to the south line of 23d street, including the right
to cross all Connecting, abutting, or intersecting streets,
avenues, Courts, places, alleys and public highways. The
privileges hereby granted shall be deemed an extension
of the road authorized to be constructed by said com-
pany on West 22d street, from Grove street to Crawford
avenue, and Lawndale avenue from 22d street to 35th
street; and the provisions of said ordinance of Febru-
ary 8th, 1892, shall extend to and apply to the streets
herein named, and same shall be subject to the further
conditions herein contained, that whenever said com-
pany shall desire to condemn any property as provided
for in the laws of the State of Illinois, said company
may connect the property so acquired by condemnation,
purchase or otherwise, with the lines herein mentioned,
and for such purposes said company may cross any Con-
necting, abutting or intersecting streets, avenues, courts,
places, alleys and public highways.
SEC. 2. Said company shall not be allowed to charge
exceeding the fare of five (5) cents on the lines herein
authorized, and any person paying a fare of five (5) cents
on either of the other lines of said company shall be en-
titled to a transfer ticket on any of the lines herein au-
thorized, without additional cost. All cars run on said
lines shall pay an annual license fee of fifty ($50) dol-
lars for each car, to be computed as provided in Said
ordinance of February 8, 1892. As specified in the pe-
tition of property owners, said tracks shall be laid as Soon
as the underground work in said streets is completed, and
2O
if said streets are paved, the original improvement to be
paid for by assessment on the property abutting thereon,
and all subsequent improvements or repairs shall be paid
for by said company as provided for by said ordinance of
February 8, 1892, except that section 8 of the same shalf
not apply to the roads herein mentioned, but the rail to
be used shall be subject to the approval of the commis-
sioner of public works.
SEC. 3. This ordinance must be accepted by said
company within ninety (90) days after its passage and
approved by the mayor, and the same shall take effect
and be in force from and after its passage. An addi-
tional bond of ten thousand ($1 O,OOO) dollars with said
company as principal, shall also be filed with the city
clerk, conditioned to the performance of the conditions
herein named.
The affidavit of Gustaf H. Carlson, which is Exhibit
“B” and by reference a part of the bill, is as follows:
Affiant says that he is a surveyor by profession and oc-
cupation, and has pursued surveying as a profession for
a period of more than twenty years last past, that he is
an officer of Greeley, Carlson Company, a corporation;
that he has made a careful examination of the certified
copies of petitions signed by owners of property on Kedzie
avenue between the north line of 22d Street and the south
line of 31st street in accordance with the ordinance
granted by the city council of the city of Chicago to the
West and South Towns Street Railway Company, April
5, 1893, addressed to the city council of the city of Chi-
cago, and requesting said city Council to grant to the
West and South Towns Street Railway Company the
right to construct and operate a railway on said Kedzie
2 I
avenue between the points aforesaid; that in making said
examination he numbered the different tracts described in
the said petition consecutively from the beginning to the
end thereof, from I to IO, and in this affidavit, deponent
in referring to said petition numbers means and intends
to refer to the number of tracts signed as so consecu-
tively numbered by him as aforesaid; that said examina-
tion was carefully made for the purpose of ascertaining
and examining as to whether or not the necessary lot
frontage was represented by the signers of said petitions,
to wit: whether said petitions were signed by the owners
of more than one-half of the net lot frontage on Kedzie
avenue between the points aforesaid, and by the owners
of more than one-half of the net lot frontage on Kedzie
avenue, between the points aforesaid, of each mile and
the fraction of a mile of the route covered by the ordi-
nance aforesaid, and purported to be passed and based
upon said petitions by said city council on April 5, 1893,
as aforesaid. That said certified copies of petitions.
are copies of the original petitions upon which said
city council granted the use of said Kedzie avenue
between the points aforesaid to the West and South
Towns Street Railway Company, for the purpose of
constructing and Operating a railway in and along
said Kedzie avenue between the points aforesaid, by
an ordinance passed by said city Council on April 5,
A. D. 1893. That for the purpose of making the
said examination the deponent relied upon the Atlas
of Greeley, Carlson Company, which is based upon
actual survey of each quarter section, and upon the
ante-fire records of Handy & Company, and on the rec-
ords of Cook County recorder's Office since the fire, said
atlas having been constructed under affiant's personal
22
supervision and direction, and which said atlas is used by
the several departments of the city of Chicago as the
official atlas of said city, and especially and particularly
in the special assessment department thereof; that be-
ginning on Kedzie avenue at the north line of 22d street,
being the initial point fixed by the ordinance thereinbe-
fore mentioned, and extending south one mile, which is
5,280 feet, said mile will end at a point fifteen feet north
of the north line of 3 Ist street, as appears by the said
atlas so mentioned as aforesaid, and which, for the pur-
pose of the affidavit, will thereafter be called first
mile Kedzie avenue; that beginning at the said point
fifteen feet north of the north line of 31st street and ex-
tending South on Kedzie avenue to the south line of 31st
street, a point sixty-six feet south of the north line of
said 31st street, the distance as appears by the said atlas
is eighty-one feet: that is, the actual measurement based
upon the said atlas is eighty-one feet, And which for
the purposes of the affidavit will thereafter be called
fractional second mile Kedzie avenue. That in all ex-
aminations by the affiant of said petitions for the pur-
poses aforesaid, the affiant has taken the said Greeley
Carlson Company atlas as a basis whereon to make the
said examination. That he, the affiant, has also taken
into consideration the distances and frontages as shown
by the official maps and records of Cook county, and the
Greeley Carlson atlas of the city of Chicago, as aforesaid,
and has also taken into consideration in his examination
the frontage claimed by the various signers of said peti-
tion, but has based his examination upon the actual
frontage of the property represented by the various sign-
ers of the petitions, according to the legal description
thereof as designated in Said petition, and has also taken
23
into consideration certain reports of the Title Guarantee
and Trust Company, and as a result of such examination-
the affiant states that the said petitions are not signed by
a majority of persons Owning lot frontage upon Kedzie
avenue, sought to be used by the West and South Towns,
Street Railway Company for railway purposes under the
ordinance granted to it April 5, 1893, as above stated.
Nor were said ordinances granted upon the petitions of
the owners of the land, representing more than one-half
of the frontage of said Kedzie avenue, or so much there-
of as is sought to be used for railway purposes by said
West and South Towns Street Railway Company, under
and by authority of the said ordinance. That the part
of Kedzie avenue sought to be used by said West
and South Towns Street Railway Company, under and
by authority of said ordinance, is more than one mile in
extent; that the said petitions upon which said ordinance
purports to be based, and upon which said city council
purported to act in the passage of the said ordinance, are
not signed by the owners of the land on Kedzie avenue,
representing more than one-half of the frontage of the
said mile, and of the fraction of a 'mile in excess of the
whole mile, measuring from the initial point, as by law
required. That said petitions upon which said ordinance
purports to be based, and upon which said city council
purported to act in the passage of the said, ordinance, are
not signed by the owners of the land fronting on said Ked-
zie avenue, representing more than one-half of the front-
age of said “First Mile Kedzie Avenue,” and that as to
the said “ First Mile Kedzie Avenue '’ he thereto attaches
and makes a part of his affidavit, a true and correct state-
ment of his examination, and other papers and records as
in the affidavit mentioned, for the purposes aforesaid as
follows:
24
A final statement consisting of five pages, the first
page being marked “Final Statement First Mile Kedzie
Avenue,” the other pages being numbered 1, 2, 3, and 4;
that said final statement shows the actual measure-
ment of said first mile Kedzie avenue to be Io, 560
feet, and also shows that in order to ascertain
the net lot frontage in said first mile Kedzie avenue
there is to be deducted from said Io. 560 feet the
total width of all streets and alleys intersecting
or crossing said Kedzie avenue within the limits of said
first mile Kedzie avenue; that as shown upon page 1
of said final statement in detail, the total width for said
streets and alleys within the limits of said first mile
Kedzie avenue amounts to 1,022 feet, which amount de-
ducted from the number of feet in said first mile Kedzie
avenue shows the total net lot frontage therein to be
9, 558 feet, one-half of which total net lot frontage is
4,779 feet, Said final statement further shows that the
total frontage in said first mile Kedzie avenue signed in
said petitions and allowed by the affiant, is 3,340, 96 feet,
The affiant further says that on page 2 of said final state-
ment is a correct detailed statement of all the frontage
that is signed on said petitions by Owners or persons
claiming to own land fronting on said Kedzie avenue
within said first mile Kedzie avenue; that said page 2
shows under the head of “Pet. No.,” the number of the
tracts signed in said petitions, as said petitions were con-
secutively numbered by the affiant as above stated.
Under the head of “frontage allowed,” the amount
the affiant has allowed to the signers in said petitions as
having been upon the said petitions correctly signed ac-
cording to the legal description of the property designated
in the petitions.
25
} %
Under the head of “signers ” the names appearing
upon said petitions as Owning or claiming to own prop-
erty within said first mile Kedzie avenue, and under
the head of “frontage signed ’’ the number of feet ap-
pearing upon said petitions as signed for by the persons
whose names appear opposite the description of the prop-
erty; that said page 2 contains the name of every person
Owning or claiming to own the property within said
“First Mile Kedzie Avenue " upon the face of said pe-
tition, and every piece or parcel of land in said first mile
Kedzie avenue, which upon the face of said petitions ap-
pears to have been signed for by anybody. That the to-
tal frontage of said first mile Kedzie avenue signed in
Said petitions, and being 3,340, 96 feet as shown on page 2
of said final statement substracted from the total half net
lot frontage 4,779 feet, as the same appears on the title-
page of said final statement, leaves a balance of less than
one-half net lot frontage of 1,438. O4 feet in the said
first mile Kedzie avenue, in which computation is al-
lowed all property purported to be signed for in the said
petitions. That for the purpose of ascertaining whether
said petitions were correctly signed by the owners of prop-
erties fronting upon said Kedzie avenue for the entire
distance between the north line of 22d street and the
south line of 3 Ist street, he prepared a description of
the property fronting on said Kedzie avenue, between
the points aforesaid, said description of Said property
being exactly as the same appears upon the petitions
aforesaid; that he submitted said descriptions of prop-
erty to the Title Guarantee and Trust Company, a cor-
poration existing under the laws of the State of Illinois,
having its principal office in the city of Chicago, who own
or control abstracts of title to all the property in Cook
26
county, and which cover the title thereof, both before
and after the fire of 1871, and requested of said Title
Guarantee and Trust Company to make to the affiant a
statement of who were the owners of said respective
properties on the 5th day of April, 1893, which was the
date or the passage of said ordinance; that said Title
Guarantee and Trust Company did make report to the
affiant of all the said owners of the said lands so fronting
on said Kedzie avenue between the points aforesaid, in-
cluding all such owners in said first mile Kedzie avenue,
and that upon such report the affiant states that upon
page 3 of his said final statement he has stated the own-
ers of said lands fronting on said Kedzie avenue between
the points as aforesaid, and also. within the said first mile
Kedzie avenue, wherever said owners are shown by the
said report of the said Title Guarantee and Trust Com-
pany, as the owners of the respective properties, differ
from the signers upon the said petitions who signed said
petitions as owning the same property. That said page
3 of said final statement correctly shows the names of
the parties owning, as reported by said Title Guarantee
and Trust Company, property in Said first mile
Kedzie avenue, which amounts to 2, O24. 46 feet,
purporting to be signed for by parties as the
owners thereof, but who in fact were not at the
time of the passage of said ordinance the owners of the
property signed for, and therefore the affiant adds to said
shortage of 1,438. O4 feet the number of feet so shown
to be signed by others than owners, which appears on
said page 3 of said final statement, which shortage as
above stated, makes the unchallenged signatures to said
petition represent 3,642. 50 feet less than one-half of the
frontage within the limits of said First Mile Kedzie ave-
27
nue. That page 4 of said final statement correctly shows
the names of the parties owning, or claiming to own
property in said First Mile Kedzie avenue, whose names
appear to be signed to said petitions by others than them-
selves, either as attorney, agent or otherwise; that no
authority to sign said petitions appears in and by said
petitions, and therefore the deponent adds to said short-.
age of 3,642. 50 feet, the number of feet so shown to be
signed by agents, etc., on Said final statement, page 4;
the total of said signing, as last above stated, and as
shown on said final statement, page 4, is, 561.75 feet,
which, added to 3,642. 50 feet shortage, as above stated,
makes the unchallenged signatures to said petition repre-
sent 4,204.25 feet, less than one-half of the frontage
within the limits of the said First Mile Kedzie avenue;
that said petitions upon which said ordinance purports
to be based, and upon which said city Council purported
to act in the passage of the said ordinance, are not signed
by the owners of the land fronting on said Kedzie avenue,
representing more than one-half of the frontage of said
fractional second mile Kedzie avenue, and the affiant fur-
ther states that as to the said fractional second mile
Kedzie avenue, he thereto attaches and makes a part of
his affidavit a true and correct statement of his examina-
tion, and other papers and records as in this affidavit
mentioned for the purposes aforesaid, as follows:
A final statement, consisting of two pages, the first page
being marked: “Final Statement Fractional Second
‘‘ Mile Kedzie Avenue", the other page being numbered
I ; that said final statement shows the actual measurement
of said fractional second mile Kedzie avenue to be 162
feet, based upon the Greeley Carlson Company's atlas of
Chicago hereinbefore referred to, and also shows that in
28
order to exhibit the net lot frontage in said fractional
second mile Kedzie avenue, there is to be deducted from
said I 62 feet the total width of all streets and alleys in-
tersecting or crossing said Kedzie avenue within the limits
of Said fractional second mile Kedzie avenue; that as
shown upon page one of Said final statement in detail,
the total width of said streets and alleys within the limits
of Said fractional Second mile Kedzie avenue amounts to
sixty-six feet, which amount, deducted from the number
of feet in said fractional Second mile Kedzie avenue,
shows the total net lot frontage therein to be ninety-six
feet, one-half of which total net frontage is forty-eight
feet. The said final statement further shows that the
total frontage in said fractional Second mile Kedzie ave-
nue in said petitions is none whatever, leaving less than
half net lot frontage signed in said fractional second mile
Kedzie avenue a total frontage of forty-eight feet.
The affidavit of Josef Bernreuther, filed with the bill:
The affidavit alleges that affiant is in the employ of
Handy & Company, formerly abstract makers of the City
of Chicago, and now manager of the abstract department
of the Title Guarantee and Trust Company; and that he
has been in the employ of that firm continuously since
the year 1878 or 1879. That his services with said firm
have been such that he has special familiarity with the
tract indices kept by said firm, which indices are kept for
the purpose of showing accurately each and every deed or
other instrument recorded in the recorder's office of Cook
county, affecting each and every piece of property in said
county; that said tract indices are so arranged that by
turning therein to any particular piece of property by its
Correct description, there is shown in proper order there-
under, with reference to the date of the record thereof,
29
each and every instrument of conveyance filed in the re-
Corder's office of Cook county affecting such piece of
property up to date of Search. Said indices being duly
brought down to date to show the instruments recorded
in the recorder's office of Cook county upon the preceding
day. That very great care is taken in the preparation
and keeping of said indices, which are constantly used by
said firm in their abstract work, and are absolutely relied
upon to guide said firm in the making of abstracts of title.
That he has made careful search of the tract indices, so
kept as aforesaid, for the purpose of showing the condi-
tion of the title to the property hereinafter mentioned,
fronting upon Kedzie avenue, between 22d street and 31st
street, in the city of Chicago, County of Cook, and
State of Illinois, and within the limits hereinafter stated,
as of the date of April 5, 1893, and in such search he has
observed every deed or other instrument of transfer, dated
prior to April 5, 1893, and recorded up to the time of the
making of this search, which was on the 13th day of
October, 1893. That he made written report to Gustaf.
H. Carlson of the results of such search, which report so
made by this affiant gives the following particulars, viz:
The name of the grantee or grantees in the deed or other in-
strument notes in said tract indices, the date of the instru-
ment, the date of the record thereof, the document num-
ber thereof, the book and page of record thereof in re-
corder's office of Cook county. Said examination was
made as to certain property given by said Carlson to this
affiant, as follows: As to both sides of Kedzie avenue,
that is, the property abutting thereon from the north line
of 22d street to the South line of 3 Ist street, as per ordi-
nance granted to the West and South Towns Street Rail-
way Company by the city Council of the City of Chicago,
3O
April 5, 1893. That said written report so made by this
affiant to said Carlson was correctly made for the pur-
pose of giving the results, and a careful and accurate ex-
amination of Said tract indices, and for the purpose of
showing the correct condition of the record of title of the
properties embraced in such search at the date above
referred to as called for by said Carlson, and that upon
information and belief he states that said report so made
by him to said Carlson was correct as to the matters cov-
ered thereby.
Upon the filing of the bill a preliminary injunction
issued in accordance with the prayer of the bill. After-
wards the defendant railway companies filed to the said
bill a general and special demurrer, the special points of
which are as follows:
First. That injunction is not a proper and lawful
remedy for any such supposed wrongs and grievences as
are set forth in said bill of complaint, but that the rem-
edy therefor, if any such wrongs and grievences in fact
exist, is by the proper action at the common law.
Second. That the said bill of complaint shows upon
its face that if all the matters and things which are
therein alleged were true in matters of fact, but the truth
whereof is denied, the said complainants might have ade-
quate remedy for damages thereby suffered by the proper
action at the common law.
Third. That the pretended right to file said bill of
complaint rests according to the frame of said bill largely
upon certain supposed special damages suffered by said
complainants, whereas, under the laws of this state, if
the claim made by said complainants were true, the
remedy would not be by bill in equity, but it must be
3 I
sought either by the proper action of the common law, or
by petition filed under the statute of eminent domain.
Fourth. For that the substance of said bill of com-
plaint is that this respondent has usurped and intruded
into, and unlawfully holds, and executes a certain fran-
chise therein described, and is exercising certain powers.
not conferred by law, and that by the laws of this state,
if the claim aforesaid were true, which is not admitted
but denied, the proper remedy should be sought by an in-
formation in the nature of a quo warranto, and not by
bill in equity.
Fifth. For that the chief matter in which the said
complainants seek the judgment of this chancery court,
are of a political nature, and are by law vested in the
jurisdiction of the political authorities of the City of Chi-
cago, and this court has no jurisdiction to impede or set
aside the action of the city authorities until impeached in
an action of law brought for that purpose.
Sirth. That said complainants on the face of their
said bill have no interest in the construction or non-con-
struction of the line of said railway, except as the same
relates to the premises which they claim to own, and the
right of said complainants to object to said construction
of the said railway is limited by law to the particular
mile of said railway in which said premises are located.
Seventh. That said complainants have waived the said,
pretended cause of action, or to an injunction herein.
Bight/. That the said complainants are estopped
from asserting herein their pretended cause of action to
enjoin, prevent or interfere with these defendants in the
construction, maintenance or Operation of said railroad
as prayed, or seek or get the relief by him prayed herein,
or any relief.
32
Ninth. That it appears by said bill that complainants
have been guilty of such laches in bringing said bill, or
asserting his pretended right herein as to deprive him of
the aid of equity or the injunction prayed for, of the relief
herein by him prayed for or to any relief herein.
Tenth, That said bill of complaint is otherwise mani-
festly insufficient, uncertain and contrary to law and
equity.
Subsequently, and on the 2d day of January, 1895,
the city of Chicago, which had come in as a party de-
fendant by leave of court, filed a general and special de-
murrer muſic pro func as of October 18, 1894, the special
points of which are as follows:
Ist. That injunction is not a proper and lawful reme-
dy for any such supposed wrongs and grievances as are
set forth in said bill of complaint, but that the remedy
therefor if any such wrongs and grievances in fact exist,
is by proper proceeding at law. That the said bill of
complaint shows upon its face that all the matters and
things therein complained of are remediable by proper
action or proceeding at law,
2d. The substance of the complaint in said bill is that
this defendant has unlawfully granted and permitted the
defendant railway companies to usurp, hold and execute
a certain franchise therein described, and is exercising a
power not conferred by law; for which alleged wrongs, by
the law of this state, the proper remedy is by certiorari
or information in the nature of quo warranto, and not by
bill in equity.
3d. No facts showing any special damage to Com-
plainants were set out in said bill of complaint,
4th. For any special damages which complainants
33
'may suffer from the acts complained of in said bill, it has
adequate remedy by action at law, or by petition filed
under the statute of Eminent Domain.
5th. The matters complained of in said bill, upon
which complainants seek relief at the hands of this court,
are of a legislative and political nature, and wholly with-
in the jurisdiction of the political authorities of this de-
fendant, the City of Chicago; and this court has no jur-
isdiction by bill in equity to set aside or reverse the ac-
tion of this defendant, the City of Chicago.
6th. No facts are set forth in said bill charging any
fault or want of good faith on the part of this defendant
or its representative, the city council, in granting said or-
dinance, and in the absence thereof said ordinance can-
not be assailed by bill of complaint.
7th. Said complainants assume the right to represent
the public and all other property owners by their bill,
and to file their bill on behalf of all such interests, but
they have no lawful right so to do.
8th. Said complainants by their bill do not claim to
Own, and do not own, a majority of the frontage in and
for the portion of West 25th street permitted to be used
by said ordinance.
9th. The complainants are not entitled to relief on ac-
count of alleged deficiencies of said ordinance or petition,
occurring or relating to property not within the mile or
fraction of a mile of the proposed right of way of said
railway, and adjacent to the property alleged to belong to
said complainants.
Ioth. Claimants have waived their pretended claim to
relief in this court by silence, non-claim, laches and acqui-
escence in the said acts, of which it too late complains,
34
On the 27th day of November, 1894, the trial court,
on motion of the defendants, sustained their demurrers
to the bill of complaint, dissolved the preliminary injunc-
tion issued, and dismissed the bill for want of equity, and
the complainants, Frank Kirchman and Josef Baumruk,
appealed to the Appellate court of the First district, in
which court the decree of the trial court was affirmed,
and they now bring the record to this court for review.
BRIEF OF POINTS.
sºmºmºmº.
I.
The ordinance in guestion is void because passed by
the city council without the necessary petition. g
Par. 90, Sec. I, Art. V. Chap. 24 Rev.
Stat. Of Ill.
Humz v. Chicago A/orse & Dummy Ry. Co.,
I 2 I Ill., 638.
Chicago Dock Co. v. Garriſ', I I 5 Ill.,
I 55.
Beg v. Chicago, R. Z. & Pac. R. R. Co.,
23 Ill. App., T 37.
Hickey v. Chi. & W. Ind. R. R. Co., 6.
Brad., I 72.
Mu//igan v. Smith, 59 Cal., 206.
Liebman v. City & County of San Fran–
cisco, 24 Fed. Rep., 705.
Damp v. Town of Dame, 29 Wis., 419.
Litchfield v. Vernon, 41 N. Y., 123.
Graves v. Otis, 2 Hill., 466.
Cooley on Taxation, 464 (1st Ed.).
Sharp v. Speir, 4 Hill, 76.
35
JPeople v. Spencer, 55 N. Y., 1.
Aeople v. Smith, 55 N. Y., I 35.
McCartney v. Chi. & Evanston R. R. Co.,
I I 2 Ill., 6 II.
Thorn et al. v. West Chi. Park Comms.,
I 3O Ill., 599.
Rector v. Board of Improvements, 19 Am,
& Eng. Corp. Cas., 63O.
Ilewis on Eminent Domain, Sec. 346.
II .
The ordinance in question is void because passed by the
city council without the necessary notice having been first
given of the time and place of presenting the petition.
Sec. 3, Chap. 66, Rev. Stat. of Ill, Title,
Horse & Dummy Railroads.
Metropolitan City Ry. Co. v. Chicago, 96
Ill., 62O. *
III,
The finding of the city council as to whether the re-
guisite petition has been presented is not conclusive.
Sharp v. Speir, 4 Hill, 76.
Iliebman v. City & County of San Fran-
cisco, 24 Fed. Rep., 705.
2eigler v. Hopkins, I 17 U. S., 683,
Mulligan v. Smith, 59 Cal., 206.
Roberts v. Easton, 19 Oh, St., 86.
Zitchfield v. Vernon, 41 N. Y., 123.
Graves v. Otis, 2 Hill, 466. tº
The City of Pekin v. Brereton, 67 Ill.,
477.
36
Carron v. Martin, 26 N. J. Law, 594.
Atty. Gen. v. Chi. C. & E. R. Co.,
II 2 Ill., 52O.
McCartney v. C. & E. R. R. Co., I 12 Ill.,
638.
Bullock v. W. Chi. Rap. Trans. Co., 23.
Legal News, 147.
Bez v. Chi., R. M. & P. R. R. Co. et al.,
23 Ill. App., 147.
Thorn v. W. Chi. Park Commers., 130 Ill.,
599.
Dillon on Muncip. Corp., Sec. 800 (4th
Ed.)
Henderson v. Mayor & Cºzy Council of
Baltzmore, 8 Md., 352.
Grimmell v. Adams, 34 Oh. St., 44.
Hays v. Jones, 27 Oh. St., 218.
Ely v. Board of Comamzs. of Morgan Co.,
I I2 Ind., 36 I.
Strzeó v. Coa:, Treas., I I I Ind., 299.
Little v. Thompson, 24 Ind., I.46.
I V.
A.
The proper remedy in this case is injunction at the
suit of abutting lot owners.
Hickey v. C. & W. Ind. Ry. Co., 6.
Brad., 172.
Cobb v. J. and St. L. R. R. Co., 68 Ill.,
233.
Roberts v. Easton, 19 Oh. St., 78.
Dillon on Mun. Corp., 4th Ed., 587.
Hart v. Buckner, 54 Fed. Rep., 925.
37.
Dudley v. Tilton, I4 Law An., 283.
Wetmore v. Storey, 22 Barb., 414.
Peltibone v. Hamilton, 4o Wis., 402.
Schurmeier v. Railroad Co., Io Minn., 82.
Holland v. Mayor of Baltimore, I I Md.,
I86.
Bouldin v. Mayor of Baltimore, 15 Md.,
I 8.
Smell v. Buresh et al., 123 Ill., I 5 I.
Field v. Barling, 149 Ill., 556.
Zearing v. Raber, 74 Ill., 409.
Village of Princeville v. Auton et al., 77.
Ill., 325.
Atty. Gen. v. Chi. and Evanston R. R.
Co., I I2 Ill., 52O.
City of Jacksonville v. R. R. Co., 67.
Ill., 544.
Village of Brooklyn v. Swaith, IO4 Ill.,
438.
Earll v. Chicago, I 36 Ill., 277.
Maywood Co. v. Village of Maywood, I 18.
Ill., 71.
2d Storey Eq. Jur. Secs. 926a and 927.
McKenzie v. Eliot, I 34 Ill., I 56.
Be2 v. C., R. I. and P. R. R. Co. et al.
23 Ill. App., L37.
Carter v. City of Chicago et al., 57 Ill.,
283.
Kane v. N. Y. Elev. R. R. Co., 1 2 5 N.
Y., 183.
Storey v. N. Y. E. R. R. Co., 90 N. Y.,
176.
Goodson v. Richardson, 9th Law Rep.,
Chan. App., 22 I-
38
- Clowes v. Strat. Pot., 8 Law Rep., Ch.
App., I25.
Wilts v. Swinton Water Works Co., 9
Law Rep., Ch. App., 451.
Seneca Ra. Co. v. A. & R. R. Co., 5 Hill,
I7O.
Dickenson v. Grand Junction Canal Co.,
I9 Eng. Law Eq., 287.
Wood's Law on Nuisance, 2nd Ed., Sec.
779, 780, 781, 782 and 783.
Webb v. Portland Mſg. Co., 3d Sumner,
I 89.
Green v. Oakes, I 7 Ill., 249.
2d Washburn on Real Property, page 369.
AWicklin v. Williams, IO Exchequer, 259.
Bolivar Mfg. Co. v. Weponset Mfg Co.,
I6 Pick., 24.I.
Stowell v. Lincoln, I Ith Gray, 434.
Embrey v. Owen, 6 Exchequer, 353.
Asby v. White, 2d Lord Raymond Rep.,
938.
2d Tudor's Lead. Cas, on Real Prop.,
224.
Penruddock's Cas., 5 Coke IOO B (Vol. 3).
Miller v. Mayor & Aldermen of Mobile,
47 Ala., I63.
Am, Tel. Co. v. Pearce, 71 Md., 524.
39
B.
And in such suit the joinder of owners is proper.
Atchison St. R. R. Co. v. Nave, 17 Pac.
Rep., 587.
Taylor v. Bay City St. Ry. Co., 8o.
Mich., 77.
Turner v. Hart, 7 I Mich., 129.
Palmer v. Waddell, 22 Kas., 352.
Pomeroy's Eq. Jurisprudence, Vol. I, Sec.
269.
1st Story's Eq. Jur., Sec. 64, K.
Reed et al. v. Gifford et al., Hopkins,
4I6.
Garrison v. Memphis Ins. Co., 19 How.
U. S., 312.
Falls of Neuse Mfg. Co. v. Ga. Home Ins.
Co., 26 Fed. Rep., I.
Black v. Shreeve, 7 N. J. Eq., 440.
Town of Sullivan v. Phillips, I IO Ind.,
32O.
Tate v. Ohio etc. R. R. Co., TO Ind., I 74.
Pettibone v. Hamzzlton, 40 Wis., 403.
C.
And the suit is properly brought by the complainants.
on behalf of themselves and all others in like predica-
1726.72%. '
Snell v. Buresh, I23 Ill., I 5 I.
Reed et al. v. Gifford et al., Hopkins, 416,
AO
V.
To sustain a bill of this kind it is sufficient that the
injury to complaimants is different in Åind from that
sustained by the general public.
Milhau v. Sharp, 27 N. Y., 612.
City of Chicago v. Union Blag. Assn.,
IO2 Ill., 323.
VI.
The bill in this case was filed žn apt time.
Broome v. W. Y. & N. J. Co., 42 N. J.
Eq., Y42.
A.
Action under a void ordinance cannot be restražmed
wntil steps are taken mnder it.
City of Chicago v. Evans, 24 Ill., 52.
B.
The allegations of the bill alleged that the work under
the ordinance was but just begun.
Lindlay Murray's Grammer, pages 122,
I 23.
VII.
* The allegations of the bill are sufficient.
Beach Mod. Eq. Prac., Sec. 96.
Campbell v. Paris R. Co., 71 Ill., 61 I.
Lucas v. Oliver, 34 Ala., 626.
...Wells v. Bridgeport Hydraulic Co., 30
Conn., 3 I6.
4 I
ARGUMENT.
I ,
THE ORDINANCE IN QUESTION Is VOID, BECAUSE PASSED BY
THE CITY COUNCIL WITHOUT THE NECESSARY PETITION.
Paragraph 90, Sec. I, of Art. V., of Chap. 24, Stat.
of Ill., entitled City, Villages and Towns, provides: ^.
“The city council, or board of trustees, shall have n°
“ power to grant the use of, or the right to lay down any
‘‘ railroad track in any street of the city, to any steam,
‘‘ dummy, electric, cable, horse or other railroad com-
“ pany, whether the same shall be incorporated under
‘‘ any general or special law of the state now or here-
*
{
after in force, except upon the petition of the owners
of the land representing more than one-half of the
frontage of the street, or so much thereof as is sought
to be used for railroad purposes, and when the street,
or part thereof sought to be used, shall be more than
one mile in extent, no petition of land-owners shall be
*
{
Y
(
\{
&
*
{
*
4.
Y
{
valid, unless the same shall be signed by the owners of
‘K
(
the land representing more than one-half of the front-
\{
{
age of each mile and of the fraction of a mile, if any,
*
(
in excess of the whole mile, measuring from the initial
“ point named in such petition of such street, or of the
“ parts thereof sought to be used for railway purposes.”
The allegations of the bill in this case are, in Sub-
Stan Ce:
First. That the complainants, and each and every of
them, are owners of property fronting on Kedzie avenue,
on the mile between 22d and 3 Ist Street; that their prop-
erty so owned was by them purchased with reference to
42
recorded maps and plats, showing streets, alleys, etc., in-
cluding the said Kedzie avenue between the points men-
tioned, and that by the recording of said plats, and the
purchase of the said lots, with reference thereto, they ac-
quired an easement and other beneficial interests in the
said Kedzie avenue, in front of their lots respectively, not
only for access to, but also the free and unobstructed use
of said street in front of their several lots.
The next allegation is that the city of Chicago purpor-
ted to grant to one of the defendant companies an ordi-
nance without the requisite petitions.
The allegations on this point are specific.
The exact number of feet signed is given. The exact
number of feet not signed is given, as is the entire num-
ber of feet, and also the shortage on the face of the peti-
tion, and otherwise.
The next allegation is the transfer by one company to
the other by lease; and the next relates to the action of
the defendant companies, the particular language of which
we will advert to later.
The next allegation is the failure to publish notice by
the defendant companies or either of them.
The remaining allegations attack certain signatures
which appear on the face of the petitions.
The prayer of the bill is for an injunction restraining
the defendants from erecting their railroad in Kedzie ave-
nue between the points heretofore mentioned.
The theory of the bill is this: First, that the provision
of Par. 9o, Sec. I, Art. 5, Chap. 24, hereinbefore quoted,
is a limitation upon the power of the city council as by
them possessed prior to the time of its passage; and
43
Second, that it is in addition a delegation of power to the
abutting property owners.
Previous to its passage the city council, under its gen-
eral power of control of Streets, could grant to a railroad
company the right to lay its track in the street, but the
legislature saw fit to provide that whether or not a rail-
road could be built upon a particular street should be
first passed upon by the owners of land abutting thereon,
and if the majority thereof in each mile decided that such
road should be built, and signified such decision to the
city council in proper form, by such action the city coun-
cil became enabled to act, and to grant such permission,
but until such petition was presented for them to act
upon they had no jurisdiction whatever in the premises.
By paragraph 90 their power to act was conditioned
upon the presentation of the requisite petition, and until
such petition was before them there was no power in
them to act.
Upon this point this court says in the case Hunt v,
Chicago Horse & Dummy Ry. Co., I 2 I Ill., 628.
“Paragraph 90 has reference to the relation be-
“tween the common council as trustee, and the property
‘‘ owners as beneficiaries in the trust. It has its origin in
‘‘ the right of the property owners as a part of the general
“ public to control and limit the action of the council
‘‘ which represents them as their agent. It is a doctrine
‘‘ which cannot be too often called to mind that the city
‘‘ holds the fee of the streets in trust for the benefit of the
‘‘ public. It follows naturally as a corollary to this doc-
‘‘ trine that the power to grant the use of the street is
“ conferred upon the council for the benefit of the public,
‘‘ including the owners of property abutting upon the
44.
“streets to be used. The power lies dormant until the
“ requisite number of owners authorize its exercise by
“ petition. When they do so the limitation upon the
“ power of the council no longer exists. That body is
“ then prepared to deal with the railroad companies, and
‘‘ not before.”
To the same effect is Chicago Canal & Dock Co. v.
Garrity et al., 1 I 5 Ill., I 55, and Hickey v. Chi. & W.
J. R. R. Co., 6 Brad., 172.
On this point the Supreme court of California say in
the case of Mulligan v. Smith, 59 Cal., 206:
“When the legislature prescribed that a petition from
“ the owners of a majority of frontage of the property to
‘‘ be charged with the cost of the improvement was neces-
“ sary to set the machinery of the statute in motion, no
“step could be taken under the provisions of the statute
‘‘ until the requisite petition was presented.”
In the case of Liebman v. City & County of San
Francisco, 24 Fed. Rep., 705, Mr. Justice FIELD says:
“The rule is fundamental that where private property
“ is taken for public improvement on the petition of a
“ majority of those who are to bear the burden, the peti-
“tion of such a majority must be made before proceed-
‘‘ings for the appropriation of the property can be had.
“A failure to comply with it will vitiate all subsequent
“ proceedings.” --
In the case of Damp v. The Tozwn of Dane, 29 Wis.,
419, in construing a statute of that state requiring that
before a highway could be laid out, etc., there should be
a petition to the board of supervisors, ‘‘ of not less than
“ thirty-three freeholders, and not less than fifteen from
‘‘ each town to or into which, or along and near to the
45.
‘‘ line of which it is proposed to lay out such highway,”
the Supreme court of that state finding that the pe-
tition in question was signed by but fourteen resident
freeholders of the Town of Dane, used the following.
language:
“There were, therefore, but fourteen qualified peti-
“tioners for the highway from that town. It is well
&
{
settled that the petition of fifteen resident freeholders.
6.
{
of the Town of Dane was essential to give to the
&
4.
county board of supervisors power to lay out the high-
“ way. Without such petition the board had no juris-
&
{
diction whatever in the premises. A deficiency of but
6
&
one from the required number of qualified petitioners is,
$
{
as fatal to the validity of the proceedings as would be
&
{
the absence of any petition. The order of March 13,
(
&
1869, is therefore null and void because the board of.
C
$
supervisors had no legal power or authority to
{
6
make it.”
In the case of Litchfield v. Vermon, 4 I N. Y., 123, the
following language is used upon the point now under con-
sideration:
“The right of the common council to apply for an
“ appointment of the commissioners lies at the founda-
“tion of the whole proceeding. Unless this right existed
“ all the proceedings in appointing commissioners and
“subsequent thereto are void. This right depends upon
“ the question whether a majority of the land owners
“ petitioned the common council to proceed under the
‘‘ act. In the absence of such petition the common
“council had no authority in the premises, and nothing
“could be done under the act.”
To the same effect are Graves v. Otis, 2
Hill, 466.
46
Cooley on Taxation, 464,
And Sharp v. Speir, 4 Hill, 76.
In the case of People v. Spencer, 55 N. Y., 1, the
‘Court uses the following language:
“It is made the duty of the county judge to proceed
“ to take the proof and make the adjudication authorized
‘‘ by the act whenever a majority of the qualified tax-
“‘payers representing the requisite amount of taxable
“ property unite in the petition. The county judge is
“invested with a special limited statutory power which
“‘ can only be exercised under the limitation and circum-
“stances prescribed in the statute. The presentation of
“ the proper petition lies at the basis of his jurisdiction.”
To the same effect under the same statute is People v.
Smith, 55 N. Y., I 38.
In McCartney v. Chi. & Evanston R. R. Co., I 12
Ills., 6 I I, it is held by this court as follows:
(We quote from the 9th section of the syllabus as
correctly stating the essence of the opinion on the point
in question.)
“Where a railroad company lays its tracks in a street
‘‘ of a city, having the right to construct a track for pas-
“senger cars only; under Sec. 62, Clause 90, of Art. 5
‘‘ of the General Law, it has no power to grant the use
“ of the track for operation of freight cars except upon
“ the petition of property owners upon the street, as re-
‘‘ quired by the statute, and a grant of such use for such
“ tracks for such purposes, without a petition of property
“ owners being void, such use is unlawful and a public
‘‘ nuisance.”
The petition required by the statute must be signed by
47
the owners. The signatures of executors, administra-
tors' agents of estates and the signatures of corporations.
not authorized by the vote of the board of directors, are
invalid.
Upon this point Mr. Lewis, in his work on Eminent
Domain, says at Section 346:
“Where a petition by owners of a majority of the
‘‘ frontage is required, the signatures of the officers of a
‘‘ corporation not duly authorized, or of executors, ad-
“ministrators, agents of estates, or of one tenant in
‘‘ common can not be counted.”
To the same effect are Thorm ef al. v. W. Chº. Pazº/*
Commºs., I 3O Ill., 599, and Rector v. Board of Improve—
ments, 19 Am. & Eng. Corp. Cas., 630, and also Mulli-
gan v. Smith, 59 Cal., 206, and Liebman v. City &
County of San Francisco, 24 Fed. Rep., 705, hereinbe-,
fore quoted. -
II,
THE ORDINANCE IN QUESTION IS VOID, BECAUSE PASSED BY
THE CITY COUNCIL WITHOUT THE NECESSARY NOTICE.
HAVING FIRST BEEN GIVEN OF THE TIME AND PLACE OF
PRESENTING THE PETITION.
Chapter 66 of the Rev. Stat. of Illinois, Title Horse
& Dummy Railroads, the act under which the defendant
corporations in this suit are organized, provides in sec-
tion 3 thereof:
“No such company shall have the right to locate and
“ construct its road upon or along any street or alley, or
“over any public ground in any incorporated city, town
“ or village, without the consent of the corporate author-
“ities of such city, town or village.” # * * And
48
‘the same section further provides that “no such consent
“shall be granted unless at least ten days’ public notice
‘‘ of the time and place of presenting such petition shall
‘‘ have been first given by publication in some newspa-
“‘per published in the city or county where such road is
‘‘ to be constructed.”
In the case of the Metropolitan City Ry. Co. v. Chi-
cago, 96 Ill., 62O, this court held that an ordinance
passed without such notice was absolutely void.
The Court says at page 633:
“We are satisfied from the evidence that such a notice
“ was never published. The ordinance must then be
“‘ held invalid, ''
The bill in this case alleges that such notice was never
given, and the demurrer admits the truth of the allega-
tion.
I I I.
THE FINDING OF THE CITY COUNCIL AS TO WHETHER THE
REQUISITE PETITION HAS BEEN PRESENTED AND THE RE-
QUISITE NOTICE GIVEN IS NOT CONCLUSIVE.
The bill in this case is based upon the theory that the
city council, under the statute, is a body of limited or
conditional jurisdiction, and, without the facts necessary
to confer jurisdiction, its action is absolutely void, and
may be attacked collaterally.
We shall consider the case of petition only, as the
same reasoning applies to that of notice.
The powers of the council are conferred by the legis-
lature in this regard. Whatever powers it has are so
conferred, and what are not so granted and conferred are
49
withheld, and the body, consequently, is a body of lim-
ited jurisdiction, with no presumption in its favor.
Of course it must decide in the first instance as to
whether or not there is the necessary petition; but if it
"does not exist it can not make it exist by deciding that it
‘does.
As is well stated in the old case of Sharp v. Speir, 4
Hill, 76:
“They were called upon to decide for themselves
“' whether a case had arisen in which it was proper for
“ them to act, but they acted at their peril. They could
“not make the occasion by resolving that it existed,
“They had power to proceed if a majority petitioned,
‘‘ but without such petition they had no authority what-
“ever. They could not create the power by resolving
“ that they had it.”
In the case of Liebman v. City & County of San
JFrancisco, 24 Pac. Rep., 705, Mr. Justice FIELD speaks
as follows, at page 709:
“Nor is the rule at all affected by the doctrine that in
‘‘ a certain class of cases evidence of such compliance is
“conclusively found in the action of officers required to
“‘ determine and consider that fact. That doctrine, as
“‘we shall presently see, only applies to estop the obli-
‘‘gors of the bond, and can have no bearing or consid-
‘‘eration in the present case.”
The Supreme court of the United States, in the case
of Zeigler v. Hopkins, I I 7 U. S., 683, in passing upon
this very question, adopted the position of the Supreme
court of California, in the Mulligan case, to the effect
that the finding of the body is not conclusive,
The court say:
5O
“This precise question was most elaborately consid—
“ered by the Supreme court of California, in Mulligane
‘‘ v. Smith, 59 Cal., 206, and decided in the negative,
“ after full argument. With this conclusion we are en-
“ tirely satisfied. It is supported by both reason and
“ authority. The opinions of Justices McKee, Sharp-
“stein and Ross, which are found in the report of the
‘‘ case, leave nothing further to be said on the subject.
“‘A petition from the owners of the majority in front-
“age of the property to be charged with the cost of the
“improvement was necessary to set the machinery of
“ the statute in motion,’ and no step could be taken un-
‘‘ der the provisions of the statute until the requisite pe—
“ tition was presented.”
To the same effect are Roberts v. Easton, 19 Oh. St.,
86; Litchfield v. Vernon, 4. I N. Y., I 23; and Graves v.
Ożis, 2 Hill, 466. -
In the case of the City of Pekin v. Brereton, 67 Ill.,
477, this court says:
“We are as time advances the more convinced of the
“justice of the view announced by this court, that in the
‘‘ exercise of powers conferred upon the municipal au–
“ thority private rights must be regarded, that individual
“ property is not at the mercy of municipal power.”
In the case of Carron v. Martin, 26 N. J. Law, 994,
the court of last resort of that state announced the fol-
lowing conclusion upon the point now under considera–
tion:
“ There can be no doubt that according to the long
‘‘ established practice of New Jersey the Supreme court
“has a right to review all proceedings of corporations.
‘‘ and all other inferior tribunals who do acts affecting
5.I
“ the rights and property of individuals, which are judi-
‘‘cial or quasi-judicial in their nature, and may do this
“‘ as well when the proceedings are wholly void for want
‘‘ of any power or jurisdiction in the tribunal to act as
“‘ when they are illegal in consequence of some material
“irregularity.” “ * : * “In our judgment public
“ policy requires that the proceedings of our numerous
‘‘ municipal corporations should be kept strictly within
“the limits assigned to them by the statute authorizing
“ them, and if they appear not to come within those
‘‘ limits they should not only be held liable to reversal
‘‘ by certiorari but also be held void.”
The position that the action of the city council is con-
clusive finds no support in the decisions of the courts of
this state, but is clearly repugnant thereto.
Aunt v. Chicago Horse & Dummy Ry. Co.,
12 I Ill., 638.
Atty. Gen. v. Chicago & Evanston R. R.
Co., II 2 Ill., 52O.
McCartney v. Chi. & Evanston R. R. Co.,
I I2 Ill., 638.
Bullock v. West Chi. Rap. Trans. Co., 23
Leg, News, I 37,
Peg v. Ch 7. R. J. & P. R. R. Co. et al.,
23 Ill. App., I 37.
Thorne v. W. Chº, Park Commers., I 3O Ill.,
599.
*A
Mr. Dillon in his work on Municipal Corporations, Says
on this subject, at Sec. 800;
“Where the power to pave depends upon the assent
“ or petition of a majority of the proprietors to be af-
“fected this fact is jurisdictional, and the finding of the
52
“city authority or council that the requisite number had
‘‘ assented or petitioned, is not, in the absence of legis-
“lative provisions to that effect conclusive, and a want of
“ such assent makes the whole proceeding void, and the
“non-assent may be shown as a defense in an action to
“collect the assessment, or may be made the basis for a
“ bill in equity to restrain a sale of the owner's property
“ to pay it.”
To the same effect is Henderson v. Mayor and City.
Council of Baltimore, 8 Md., 352.
In the class of cases where the court has held that the
action of the municipal authority is conclusive upon the
question of their own jurisdiction, an examination will
show that the statutes involved were essentially different.
from those in this case, which in express terms deny the
municipal authority of the council to act except upon the
prescribed petition.
See
Little v. Thompson, 24 Ind., I46,
Grimmell v. Adams, 34 Oh. St., 44,
and
Hayes v. Jones, 27 Oh. St., 218.
In the case last cited it was held that the county Com—
missioners as to their own jurisdiction, as based upon the
majority consent, is not conclusive, but that the proceed-
ings in equity to inquire into the jurisdiction and for an
injunction were proper.
The cases in which the action of the city council or
other body of like character are held to be conclusive in
support of their own jurisdiction where the question
arises collaterally, are clearly distinguishable from the
present case in this, that the statute there requires notice
53
to be given to the property owners interested, who not
only have the right to appear and contest the question of
jurisdiction, but also to appeal to a higher tribunal,
where the same question may be heard and determined.
Bly v. Board of Commers. of Morgan County,
I 12 End., 361,
and
Streið v. Coat, I I I Ind., 299.
There must not only be notice to the persons interested,
but there must be in addition the right of appeal from the
finding of the body, and we venture the assertion after
careful examination of the subject that in each and every
case in which it has been decided that the action of the
city council, or other kindred body, has been held to be
conclusive, it was either a question of estoppel by the city.
or other body to assert that the action of its representa-
tive was not conclusive, as in actions on bonds issued by a.
county or city, or was a case in which there was notice
to the persons interested to appear and have a day in.
court before the body determining, with the right to ap-
peal from the finding of such body to some other tribunal,
or was a case in which it was made conclusive by statute.
In other words, the only cases in which such finding has
been conclusive as to the jurisdiction of the body are
those in relation to bonds or kindred subjects wherein
the corporate or quasi-corporate bodies have been es—
topped to deny the power of their agents to act, or those
in which there has been the right to be heard before the
body upon notice, together with the right to appeal from
such finding, and those cases in which the legislature has
expressly provided that their finding shall be conclusive.
The case at bar does not come within the law of es—
toppel as applied against a corporate body to deny the
actions of its agent, nor does it come within the class of
cases where the statute, by positive terms, makes the
finding of the body conclusive, nor does it come within
those cases where there is the right of appeal from the
action of the body, and we submit that its finding is not
in anywise conclusive upon the complainants herein.
IV,
A.
THE PROPER REMEDY IN THIS CASE IS INJUNCTION AT THE
SUIT OF ABUTTING LOT OWNERS.
Paragraph 90, Sec, I, Art, 5, Chap. 24, heretofore
quoted is not only a limitation upon the power of the city
council as by them possessed at the time of its passage,
but is in addition a delegation of power to the abutting
property owners. -
It gives them the right to say whether or not the road
shall be constructed in the street, and giving them the
right it gives them a remedy adequate to enforce and
protect it.
Previous to the passage of paragraph 90, the city
council under its general power of control of streets could
grant to a railroad company the right to lay its tracks
therein; but the legislators saw fit to provide that whether
or not a railroad can be built upon any particular street
shall be first passed upon by the owners of land abutting
thereon, and if the majority thereof in each mile, etc.,
decide that such road may be built, and signify such de-
cision to the city counsel in proper form, by such action,
the city council becomes enabled to act, while without it
they are absolutely without jurisdiction.
55
*
The question as to whether an abutting property owner-
can restrain the construction of a railroad about to be con-
structed under an ordinance void for want of the requisite
petition, has never been decided, we believe, by the court
of last resort of this state, but in the courts of other states.
such right has been fully established.
In Roberts v. Easton, 19 Oh. St., 78, the court say
at page 88:
& 4
{
{
{
&
&
$
{
{{
{{4.
&
t
6.{§&6${{6.&{&&
4.{${4.(&(6{$6{&
6
{
“The remaining question relates to the rights of the
plaintiff alone to bring the suit, and to the relief sought
thereby. He sued on behalf of himself and others
claiming to be the owners of the majority of the prop-
erty intersected, whose assent was essential to the le-
gality of the proceedings complained of. The action.
was not based upon the statutory right of the citizen
to restrain in the civil authorities from an abuse of
their powers; nor exclusively on the idea that the pro-
posed construction was a public nuisance that worked
some special injury to the plaintiff, but the legislature
in forbidding the authorities having the control of the
streets to permit them to be used for a street railroad
without the assent of the persons owning property
thereon, recognized their right to interpose when it is,
attempted to proceed without their assent. For with-
out such right of interposition, the statutory provision,
for their protection would be nugatory. We cannot re-
gard the act as a vain thing, and are constrained to
construe it as having vitality, and therefore implying
the right in those for whose benefit it was enacted, to
enforce its provision by invoking the only complete
remedy applicable to the case. For the proceeding by
injunction is not only the appropriate, but perhaps the
only remedy.”
56
The statute in force in our state hereinbefore cited, is
adopted from the statute of Ohio in force at the time of the
rendering of the foregoing decision, and should, we sub-
mit, receive a like construction.
In the case of Bež v. Chº., R. Y. & Pac. Ry. Co. et al.,
23 Ill. App., I 37, it is held as follows:
(We quote from the syllabus as giving the essence of
the opinion.)
“Where by law a petition signed by the owners of
‘‘ more than half of the street frontage is requisite to the
“‘validity of an ordinance granting the privilege to any
‘‘ railroad company to lay down its track in any street
“ abutting the property of such owners, a bill lies by
“ them or any of them to enjoin the laying down of such
“track under an ordinance passed in the absence of a
“ petition of the requisite number.”
To the same effect are Hickey v. C. & W. Ind. R. R.
Co., 6 Brad., 172; and Cobb v. J. & St. L. R. R. Co.,
58 Ill., 233.
Mr. Dillon in his work on Mun. Corporations says at
Sec. 587 B., 4th Ed.
“An abutting owner's right of access to and from the
“street, subject only to legitimate public regulation, is as
“much his property as his right to the soil within his
“boundary lines.” .
In the case of Hart v. Buckner, 5.4 Fed. Rep., 925,
the Court of Appeals for the 5th Circuit hold:
“Owners of lots abutting on or adjacent to the pub-
“ lic street of a city even if not owners of the fee in the
‘‘ street have the right of access and the right of quiet
‘‘ enjoyment, and such rights of property which may be
57
$ 4
{ {
protected by injunction when invaded without legal au-
thority.”
The legislature gave to the abutting property owners
the right to say whether or not a railroad shall be placed
in their street, and this right is a right incident to their
property.
On this point Mr. Wood says at Sec. 782 of his work
on Nuisance, 2d edition:
6 &
{
Ç
6
{
4
{
".
{
{
{
{
{
&
{
$
{
{
{
(
{
{
{
{
{
{
{
{
{
t
{
{
{
4.
{
4.
{
{
{
“There is a broad distinction between an injury to a
right incident to property and an injury to property
itself.” -
“For the violation of a right incident to property no
correct estimate of damages can ever be made. *
* * But injury to the property itself stands upon a
different ground. * * * But where a right is in-
jured, no just or adequate measure of damages can be
arrived at. * * * In such case no actual pecun-
iary damage need be proved. The law imports damage
to support the right, and when the right and its
violation by a continuous or threatened act is estab-
lished, an injunction may fairly be said to be a matter
of right.”
The same author says further, Sec. 783: “There is
another matter which should be noticed here, as it is
of much importance and often misleads both parties
and courts, and that is the distinction between injury
and damage. It is usually supposed that they must
both concur in a given case in order to uphold an ac-
tion, either at law or in equity. But in the sense in
which it is ordinarily understood, this is a mistake.
There may be and often are, cases where actions are
upheld, where there is injury without damages; where
58
“ there is a legal injury which results in positive pecum-
{
{
iary benefit to the person bringing the action. ”
“A legal injury is something done against the right of
another against his will and without authority. This is
an injury to his right of dominion over his property,
and it is no measure of defense that others are injuring
his right in the same way, nor that the act produces no
actual damage, but on the Contrary, results in positive
injury to his property. The reason for this is, that a
man's right of dominion over his own property must
not be disturbed. * * * Whatever invades this
right is a legal injury, whether damage ensues or not.
It is a right for the violation of which the law imports.
damage to support the right, and Courts of equity have
always interposed in a proper case to protect this right
without any reference to the question of actual
damage, the motive which instigates the parties to in-
voke its aid or the benefit which he derives from the
‘‘ act. In such cases, the question is not one of damages
: on the one hand or benefit on the other, but simply
“whether a right has been violated by a wrongful act.”
To the same effect are:
Clowes v. Stratfordshire Pottery Co., 8,
Law Rep., Chan. App., I 25.
Webb v. Portland Mfg. Co., 3 Sumner,
I 89.
Green v. Oakes, 17 Ill., 249.
In the case of Dudley v. Tilton, I 4 Law Ann., 283,
$
6
6.
(
&
&
4.
{
º
{
&
6
(.
{
6
t
6
{
4.
&
&
$
6
{
&
{
6
&
{
{
{
the Supreme court of Louisiana Say:
“The violation of a right to use property is sufficient
“to maintain an action without proving damage.”
In the case of Wetmore v. Storey, 22 Barb., 414, it is
59
held that a railroad being built without warrant of law
in a public street is a nuisance, and may be enjoined at
the suit of an abutting property owner, and in the case of
Aettibone v. Hamilton, 40 Wis., 402, it is held that the
want of the necessary petition makes the act void, and
that abutting property owners may sue.
To the same effect is Schurmeier v. R. R. Co., Io
Minn., 82.
In the case of Holland v. Mayor of Baltimore, I
Md., 186, it is held that unless the owners of a majority
of the streets, etc., petition for an improvement, such pe-
tition being required by law, the action of the council is
void, and the court of equity has jurisdiction to enjoin
the sale of property to pay tax on behalf of non-consent-
ing abutters.
To the same effect is Bouldin v. Mayor of Baltimore,
I 5 Md., page 18.
In the case of Snell v. Batres/, et al., 123 Ill., I 5 I, it
is held: (We quote from the 4th section of the syllabus
as giving the essence of the opinion on this point.)
“That while a court of equity will not interfere by in-
‘‘ junction to prevent the obstruction of a highway or
“ the creation of a nuisance when the right would be
‘‘ doubtful, or there is a remedy at law, yet where the
‘‘ right is clear and appertains to the public and an in-
‘‘ dividual is directly and injuriously affected by the ob-
‘‘ struction or the creation of a nuisance it will on the
‘‘ application of such individual interfere to prevent the
‘‘ threatened wrong or invasion of the common right.”
In the case of Field v. Barling, 149 Ill., 556, it is
held: (We quote from the 8th section of the syllabus
as giving the essence of the opinion on this point.)
6O
“Where the owners of lots exhibit a plat of the town
“ or addition in which a street has been laid out and
‘‘ dedicated, and sells and conveys lots abutting on said
“street with a clear reference to the plat, the purchaser
‘‘ of such lots will acquire as appurtenant to the lots the
‘‘ right to have the street kept open and maintained.”
The last foregoing case was one in which a bill was
filed by a contiguous property owner to enjoin the con-
struction of a bridge in mid-air across an alley, and our
Supreme court held that such bill was maintainable; and
they held further that the fact that no actual damages
could be proved was the best reason why a court of equity
should interfere in such cases where the nuisance was a
continuing one. To the same effect is Maywood Co. v.
Village of Maywood, I 18 Ill., 7 I.
In the case of Zearing v. Kačer, 74 Ill., 409, this
Court Says, at page 4 I 3:
“The only remaining question relates to the jurisdic-
“tion of a court of equity and upon this we entertain no
‘‘ doubt: The evidence shows a threatened nuisance
“tending to deprive appellee and others of the full and
‘‘ free use of the street as he is entitled to have it used,
‘‘ and this is a well recognized ground for equity proeeed-
‘‘ings.”
To the same effect are Village of Princeville v. Auzen,
et. al., 77 Ill., 325; and Atty. Gen. v. Chi. and Evans-
ton R. R. Co.. I I 2 Ill., 52O.
There is another ground upon which jurisdiction in
equity can be sustained, and that is the familiar ground
that the fee of the street is vested in the city in trust
alike for the public and for the abutting lot owners, and
that any beneficiary of the trust may maintain a bill to
restrain any act in violation or disregard thereof.
61
The law upon this point is without controversy. This
court in the cases of City of Jacksonville v. R. R. Co.,
67 Ill., 544, uses the following language:
“A court of equity has the right to enforce the execu-
“tion of a plainly declared trust, either upon the appli-
“cation of the owners of adjoining lots abutting upon
“ the square or upon the application of the city, the
“trustee. * * * The square is valuable property,
‘‘ intended for the use of the public and appurtenant to
“ the estate of the abutting lot owner, and the trustee
‘‘ must be permitted to preserve it for the express and
‘‘ intended purposes of the trust.”
To the same effect is Village of Brooklyn v. Smith,
IO4 Ills., 438.
In the case of Earll v. Chicago, I 36 Ill., 277, the
the same court says at page 208:
“Where there is a special trust in favor of an adjoin-
‘‘ing owner or a special injury, a bill for a suit may be
“ maintained by an individual in respect to a public
“street or highway.”
To the same effect is McKenzie v. Elliot, I 34 Ill.,
I 56.
In the case of Carter v. City of Chicago et al., 57.
Ills., 283, it is held that city authorities have no power
to appropriate space dedicated as a street to the purpose
of a roadway merely, and thus deprive the owners of lots
of one side of the street and fronting thereon, of the
sidewalk between the courtyard and the roadway proper.
The court say (We quote from the 3d section of the syl-
labus):
“The city holds the fee of the street in trust for the
‘‘ benefit of all the corporators, and in case of a violation
62
“ of such trust by an excess or abuse of power, and in
‘‘ bad faith, by public officers, as in such a case which
“would result in an injury to the rights and property of
‘‘ an individual. The court has jurisdiction and will not
‘‘‘ inquire whether the injury will be irreparable.”
To the same effect are:
Kane v. W. V. Elev. R. R. Co., 1 2 5 N
Y., 183.
Storey v. W. V. Elev. R. R. Co., 90
N. Y., 176.
Goodson v. Richardson, 9th Law Rep.
Chan. App., 22 I.
Wilts v. Szwämton Water Works Co., 9
Law Rep. Chy. App., page 45 I.
See also this connection:
Seneca Road Co. v. A. & R. R. Co., 5
Hill, 17o.
Dickenson v. Grand /unction Canal Co.,
I9 Eng. Law & Eq., 287.
2nd Wasburn on Real property, page 269.
AWich/im v. Williams, IO Exch., 259.
Bolivar Mfg. Co. v. Neponset Mfg. Co.,
I6 Pick., 24.I.
Embrey v. Owen, 6 Exch., 353.
Ashby v. White, 2nd Lord Raymond Rep.,
938.
Stowell v. Lincoln, I I Gray, 434.
2nd Tudor's Leading Cas. On Real Prop.,
224.
Penruddock's case, 5 Coke, 100 B., (Vol. 3.)
Miller v. Mayor and Aldermen of Mobile,
47 Ala., 163.
and Amer. Tel. Co. v. Pearce, 7 I Md.,
63.
535, cases strongly illustrating and establishing the prin-
ciples herein contended for.
B.
And in such suit the joinder of ozoners is proper.
Several owners of lots abutting on a street may join in
an action to restrain the erection of an obstruction in
such street.
It should be a sufficient reply to a contention that such
joinder is improper, that such bills have been constantly
filed and are being repeatedly filed, and that their pro-
priety has never been either questioned or challenged by
the courts of this state.
Two or more persons each owning adjoining lots or
buildings on a street of a city where it is proposed to
build a street railroad without authority from the city
which will when built will obstruct the use of the property
and cause a common injury to such proprietors independ-
ent and different from what the general public suffers,
may unite as plaintiffs and maintain an action to restrain.
such obstruction and nuisances.
A ſchison St. Ry. Co. v. Mave, I'7 Pac.
Rep., 587.
Taylor v. Bay City St. Ry. Co., 80 Mich.,
77.
Turner v. Hart, 7 I Mich, I 29.
Palmer v. Wadde//, 22 Kan., 352.
The law upon this point is so admirably stated by Mr.
Pomeroy, in his learned work on Equity Juris..., Vol. I,
Sec. 269, that we quote thence a summary of the entire
subject, which he treats in the preceding Sections, 243 to
268, inclusive. He says:
64
“The weight of authority is simply overwhelming
{
{
that jurisdiction should and may be exercised either on
{
{
behalf of a numerous body of separate claimants
{
(
against a single party, Or on behalf of a single party
{
&
against Such a numerous body, although there is no
{
{
‘common title ’ nor ‘community of interest,' or of
‘interest in the subject-matter’ among these individ-
uals, but where there is, and because there is merely a
{
t
{
{
ū
&
community of interest among them in the question of
&
{
law and fact involved in the general controversy, or in
G
{
the kind and form of relief demanded and obtained by
6
{
or against each individual member of the numerous
{
&
body. In a majority of the decided cases this com-
{
(
munity of interests in the questions at issue, and in the
$
(
kind of relief sought, has originated from the fact that
{
{
the separate claims of all the individuals composing
{
t
the body arose by means of the same unauthorized,
{
{
unlawful or illegal act or proceeding. Even this ex-
{
$
ternal feature of unity, however, has not always ex-
{
{
isted, and is not deemed essential.
“Courts of the highest standing and ability have re-
peatedly interfered and exercised this jurisdiction when
the individual claims were not only legally separate,
but were separate in time, and each arose from an en-
“tirely separate and distinct transaction, simply because
there was a community of interests among all the
{
{
-4
{
{
{
{
{
$
{
claimants in the question at issue and the remedy.
“ ” * * While the foregoing conclusions are sup-
“ ported by the great weight of judicial authority,
“ they are, in my opinion, no less clearly sustained by
“ principle. The objection which has been urged
‘‘ against the property, or even possibility of exercising
“ the jurisdiction, either on behalf of or against a numer-
65
‘‘ ous body of separate claimants, where there is no ‘com-
‘‘mon title' or community of right’ or of interest in
‘‘the subject-matter,’ is that a single decree of the court
“cannot settle the rights of all. * * * The sole
‘‘ and sufficient answer to the objection is found in the
“actual facts. The jurisdiction has been exercised in a
‘‘great variety of cases when the individual claimants
&
{
were completely separate and distinct, and the only
(
Ç
community of interest among them was in the question
{
(
at issue, and, perhaps, in the kind of relief, and the
&
{
single decree has without any difficulty settled the en-
{
{
tire controversy, and determined the separate rights
6
{
and obligations of each individual claimant.”
One of the original grounds of equity jurisdiction was
to avoid a multiplicity of actions. The theory is, that
the public interest is subserved by bringing into one ac-
tion and settling in one decree the rights of divers com-
plainants as against one defendant, growing Out of the
unauthorized, unlawful or illegal act or proceeding of
such defendant, and where the remedy sought by each
complainant, as in the present case, is the same, rather
than by having each complainant file a separate bill for
the same relief, or pursue a separate action at law for
damages for the same unauthorized or illegal invasion by
the defendant of a property-right or interest of the re-
spective complainants,
On this subject Mr. Justice STOREY asserts the jurisdic-
tion of equity in the following words:
“The propriety of preventing a multiplicity of suits is
‘‘ a ground of itself quite reasonable and sufficient to
‘‘ justify the relief, and one upon which courts of equity
‘‘ act as a distinct ground of original jurisdiction.”
1st Storey Eq. Jur., Sec. 64 K.
66
In Atchison St. Ry. Co. v. Nave, 17 Pac. Rep., 587, it
is held (we quote from the syllabus): “That two or more
“ persons each owning distinct though adjoining lots and
“buildings on the street of a city, where it is proposed
“to build a street railroad without authority from the
“city, which when built will obstruct the use of the
“ property and cause a common injury to such proprie-
“tors, may unite as plaintiffs and maintain an action to
“ restrain the threatened obstruction and nuisance.”
In the case of Taylor et al. v. Bay City, 8o Mich.,
77, it is held that owners of separate lots abutting on
the street may join in a bill to restrain the construction
of a street railroad therein, such railroad company not
having complied with a condition precedent.
In the case of Reed et al. v. Gifford et al., Hopkins,
4 I6, the court say:
“The complainants are several proprietors of distinct
‘‘ lands and mills and of separate parts of the natural
‘‘ water fall, and the defendants object that these com—
‘‘plainants having distinct rights, cannot join in this suit.
“This objection seems more specious than solid. The
‘‘ rights of the several complainants to their respective
‘‘ lands are indeed distinct, but the grievance in question
“ is a common injury to all the complainants, the water
“in its natural descent to the lake becomes the prop-
“erty of all the complainants successively; all the com—
‘‘plainants have the rights in the same subject; and the
“nature of the case forms a community of interest in
“ the complainants. One creditor may sue in equity for
‘‘ himself and other creditors having like rights, and yet
“ the debts demanded are distinct and arise from sepa-
‘‘ rate properties. The common claim of the different
‘‘ creditors to the same relief is considered in equity as
67
‘‘ one demand, and separate suits are not necessary. The
rule of equity is, that the matters which may be de-
manded by one suit must be of the same nature. (Mit-
ford, 146.) This suit is founded on an injury done to
all the complainants. The wrong is done or continued
by all of the defendants. It is a matter of one nature,
and the relief sought by all the complainants is the
‘‘ same.
*
&
W.
&
§
{
Q
(
&
t
{
{
“As this case stands, the title of the complainants is
clear and certain. Their possession has been ancient,
and the defendants, without the pretense of right,
continue the injury. In such circumstances, the sole
question is whether the remedy shall be given by re-
peated suits for damage or by preventing a further
continuance of the wrong. The true reason for the
interposition of equity in such cases is, that the rem-
edy at law is imperfect, and the remedy at equity gives
effectual justice. Suits at law afford a species of re-
&
(
t
&
$
{
º
(
{
{
{
4.
{
{
{
{
{
{
&
('
dress, but, as they have no end, they also afford scope
Ç
{
for perverse litigation which may become as oppressive
and vexatious as the injury itself. Equity gives its
remedy by preventing a repetition or continuance of
the injury, but this remedy which compels the wrong
“ to cease is given only where the right is plain and the
{
*
(
{
(
*
(
{
redress at law is manifestly inadequate to the ends of
“justice.”
In the case of Palmer et al. v. Wadde// ef a/., 22
Kan., 352, it was held (we quote from the syllabus as
giving the essence of the opinion):
“That two or more persons having separate and dis.
“ tinct tracts of land which were injured or rendered less
‘‘ valuable by the overflow of water at certain seasons of
“ the year from the natural water course obstructed by
68
‘‘ ditches and dams, where such overflow was a common
“injury to the lands of both, might join in a suit as
“ plaintiffs to stay such nuisance, as such parties had a
“ common interest in the subject-matter thereof.”
In the case of Turner v. Hart, 7 I Mich., 129, it is
held that several land-owners injured by the maintenance
of a dam may join in a bill filed solely for injunctive re-
lief.
We do not deem it necessary to multiply quotations on
this point, and content ourselves by referring the court to
the following cases, which forcibly illustrate the rules an–
nounced in the texts above quoted, to wit:
Garrison v. Memphis Ins. Co., 19 How.
U. S., 3 I 2.
Fall of Meuse Mfg. Co. v. Ga. Home Ins.
Co., 26 Fed. Rep., I.
Black v. Shreve, 7 N. J. Eq., 440.
Town of Sullivan v. Phillips, I IO Ind.,
32O.
Tate v. Oh. etc. R. R. Co., IO Ind., I 74.
Pettibone v. Hamzz/ton, 40 Wis., 402.
C.
And the suit is properly brought by the complainants
on behalf of themselves, and all others in like predica-
ment.
Under this sub-head, we deem it sufficient to say that
such bills have been often brought in this state, and their
propriety has never been either questioned or challenged.
The case of Smell v. Buresh, et al., 123 Ill., I 5 I,
hereinbefore quoted, was a suit brought in this form, and
no question was raised upon its correctness. . And in the
69
case of Reed v. Gifford, et al., Hopkins 416, hereinbefore
quoted, the court say: §
“One creditor may sue in equity for himself and other
‘‘creditors having like rights, and yet the debts de-
“manded are distinct, and arise from separate con-
‘‘ tracts.” w
We do not deem it necessary to cite further authority
on this point.
V.
TO SUSTAIN A BILL OF THIS KIND IT IS SUFFICIENT THAT
THE INJURY TO COMPLAINANT IS DIFFERENT IN KIND
FROM THAT SUSTAINED BY THE GENERAL PUBLIC.
The allegations in the bill on this point are: That
Kedzie avenue is a residence street of narrow width, and
is used by complainants for driving purposes, and for the
purpose of ingress and egress to and from their respect-
ive premises so abutting on the same, that said com-
panies, or either of them, are so building the said road
that the said street cannot be so used, but on the con-
trary, the said road is laid upon the surface of the road-
bed of said Kedzie avenue in such manner as to wholly
obstruct travel thereon, and that the laying of railway
tracks in the manner as aforesaid, or in any other man-
ner, and the running of cars thereon, will greatly impede
their ingress and egress as aforesaid, and greatly injure
the said Kedzie avenue between the points as aforesaid,
for the use of complainants as a driveway, and that the
laying of the tracks therein and the running of cars
thereon, and the noise caused by the same, will be a
great and peculiar special damage and injury to complain-
ants, and each and every of them.
70
Other allegations in the bill are that the property of
complainants was purchased with reference to certain
maps and plats; that the lots abut on Kedzie avenue, and
that by reason thereof they have a right in the said street
incident to their property.
It is sufficient to maintain a suit of this kind if the
complainants suffer an injury different in kind from that
sustained by the general public.
Milhau v. Sharp, 27 N. Y., 612.
City of Chicago v. Union Blag. Assn.,
I O2 Ill., 323.
It appears from the allegations of the bill in this case
complainants certainly sustain Such injury.
VI.
The bill in this case was filed in apt time.
Broome v. W. Y. & W. J. Co., 42 N. J.
Eq., I42.
A.
Action under a void ordinance cannot be restrained
until steps are taken under it.
It is the well established law of this state that no in-
junction will lie to restrain a railroad company from lay-
ing its tracks in a street under a void ordinance until such
company begin the work of laying such tracks, and we
cite, in support of this proposition, the City of Chicago
v. Evans, 24 Ill., 52.
71
B.
The allegations of the bill allege that the work under
the ordinance was but just begun.
The allegations of the bill on this point are:
“Have or has commenced the construction of a railway
“in said Kedzie avenue between the points as aforesaid;
‘‘ and have or has in part built or constructed a small
“ portion thereof, * * * and will proceed at once
“to complete said railway in the manner aforesaid upon
“ said Kedzie avenue between the points as aforesaid.”
The tense used is what is called the “perfect tense,”
y
the sign “ have '' indicating it. Now, if that expression
confines the work done to the present time, that is, the
time of filing the bill, then, of course, there can be no
laches. On this tense Lindley Murray says:
“The perfect tense not only refers to what is past,
‘‘ but also conveys an allusion to the present time, as ‘I
“ have finished my letter,’ and signifies that the finishing
‘‘ of the letter, though past, at a period immediately pre-
ceding the present time. The perfect tense and the
imperfect tense both denote a thing that is past, but
“ the former denotes it in such a manner that there is.
{
{
(
{
6
&
4
still actually remaining some part of the time to slide
“ away wherein we declare the thing has been done,
$
{
whereas the imperfect denotes the thing or action past
“ in such a manner that nothing remains of that time in
4
t
which it was done. In general, the perfect tense may
‘‘ be applied whenever the action is connected with the
“ present time.”
Lindley Murray's Grammar, pages 122 and
I 23.
72
Under that construction, and giving the words their
plain meaning, the words “ have or has commenced the
‘‘ construction of a railway”, brings the time of such
commencement down to a period of time immediately
anterior to the filing of the bill, and including the filing
thereof.
The next allegation is that the railroad company “will
“ proceed at once to complete said railway.”
The word “proceed ” means, as defined by Webster,
“to go forward with or continue something commenced.”
So, take the whole expression together, it is conclusive
that, giving the language its grammatical construction,
and the words their ordinary meaning, that from the alle-
gation it appears that the work was just begun at the time
of filing the bill.
V II.
THE ALLEGATIONS OF THE BILL ARE SUFFICIENT.
The allegations of the bill, whether stated on informa-
tion and belief, or stated upon personal knowledge, are
positive allegations. They allege that such facts exists.
If of their own knowledge, it is stated ; if on informa-
tion and belief, it is so stated. But, however stated, the
allegations are positive that such facts exist, and the de-
murrers admit their truth, so it is absolutely immaterial
whether they be stated on personal knowledge or on in-
formation and belief.
Beach Mod. Eq' Prac., Sec, 96.
Campbell v. Paris R. Co., 7 I Ill., 6 II.
Lucoe v. Oliver, 34 Ala., 626.
Wells v. Bridgeport Hydraulic Co., 30
Conn., 3 I 6.
73
The allegations are of negative facts. The knowledge
of which are peculiarly within the breasts of the defend-
ants, and to hold that they must be alleged as of personal
knowledge, is either to encourage perjury or deny justice.
We respectfully submit that there is manifest error in
the record, and ask that the decree of the trial court and
the judgment of the Appellate court be reversed.
Respectfully submitted,
J. G. KRAL,
CONDEE & ROSE,
A tºys. for Appellants.
74
APPENDIX.
OPINION OF THE APPELLATE COURT.
Mr. Justice SHEPARD delivered the opinion of the court:
The bills that were filed in these two causes in the Cir-
cuit Court, present substantially the same questions upon
the appeals from the order there entered sustaining gen-
eral demurrers and dismissing the bills for want of equity,
and for convenience sake we will consider both cases
together, as appears to have been done below.
Both bills attack the same ordinance of the city of
Chicago upon substantially the same grounds, and seek
relief by way of injunction against the appellees, from
constructing their railways in and along certain specified
Streets, under the authority of said ordinance.
The ordinance, the validity of which is attacked, was
passed by the city Council on April 5, 1893, and the com-
plainants in both bills were separate owners of certain
separate lots abutting respectively upon certain of the
streets therein named.
The two principal objections to the validity of the or—
dinance are, that the ordinance is void, first : because
passed without the necessary petition by the owners of
the land fronting on the streets in question, as required
by paragraph 90, Sec. I, Art. V., Chap. 24, Rev. Stat.
Ill., entitled Cities, Villages and Towns; and second:
because passed without the necessary notice having been
first given of the time and place of presenting the peti-
tion to the counsel, as required by Sec. 3, Chap. 66,
Rev. Stat. Ill., entitled Horse and Dummy Railroads.
The ordinance was set forth and made a part of each
75
of the bills, and on its face conferred the authority upon
the appellees to do the acts complained of.
The powers of the city council in cities organized
under the Act entitled Cities, Villages and Towns, as
finally amended March 30, 1887, are, so far as the ques-
tions here involved are concerned, contained in para-
graphs 9, 24 and 90, of Sec. I, Art. V., Chap. 24 Rev.
Stat., above referred to. It has been held that the pro-
visions of paragraph 90 constitute a limitation upon the
powers granted by paragraphs 9 and 24.
Hunt v. C., H. & D. Ry. Co., I 2 I Ill.,
638.
Tióðetts v. Street Ry. Co., I 53 Ill., 147.
Same case, 54 Ill., App. 18O.
And it was held in Metropolitan City Ry. Co. v. Chi-
cago, 96 Ill., 62O, which was the case of a municipality,
as trustee for the public, asking substantially the same
relief which is sought by these complainants in their ca-
pacity of private persons, that the notice required by Sec.
3, Chap. 66, Rev. Stat., aforesaid, to be published, was
essential to the validity of an ordinance of this kind.
The allegations concerning the lack of publication of
notice of the time and place of presenting the petition for
the passage of Said ordinance are made upon ‘‘informa-
“tion and belief,” only. It is not even averred that the
complainants are informed and believe, and upon such
information and belief state and charge the fact to be,
that no notice was given.
Allegations concerning fundamental facts upon which
the validity of municipal Ordinances depend, must be
more precise and certain than to show upon mere informa-
tion and belief what may, under such an allegation, have its
76
existence in bare rumor only; and the rule that all allega-
tions will be most strongly construed against the pleader
has especial application where the validity of the act of
a public corporation, like a city, is involved.
It is made to appear by the allegations of both bills
concerning the lack of necessary petitions by the owners
of land fronting upon the streets in question, that peti-
tions by such owners for the passage of the ordinance
were presented to the city council, but it is alleged that
such petitions were insufficient in not including a majority
in measurement of frontage owners, and for other less
material reasons.
It is not alleged that any fraud was practiced upon
either the council or the property owners in the matter
of the petitions that were presented. All that is, in
effect, alleged is that the petitions were insufficient on
account of the deficiencies stated.
Now, we have held that in determining the sufficiency
of such petitions the city council acts in a quasi judicial
character. Tióðitts v. Street Ry. Co., 54 Ill. App., 18O;
North Chicago Street Ry Co. v. Cheetham, (No. 5516,
this term). And that being the rule, its judgment upon
the fact of the sufficiency of the petition before it, in
the absence of allegations of fraud, will not be in-
quired into by the courts upon the application of a pri-
vate person, who, if he be damaged, has a clear remedy
at law for all the injury he may sustain through the im-
position upon the surface of the street of an additional
use by the public.
The reasons for not interfering in such cases are for
the purpose of this opinion, sufficiently stated in the
Tibbitts case, supra, and need not be repeated. We re-
77
fer, also, to Stewart v. Chicago General Street Ry. Co.,
(No. 5,561), filed this term.
It is unnecessary to comment upon the other points
argued, for they all depend in substance upon those that
we have noticed, except that of laches in filing the bills,
and upon that we refer, also, to the Tibbitts' case, supra,
wherein the delay was even less than in these cases.
The decree of the Circuit court in each of the causes
is affirmed.
Affirmed.
" * *
... • Term No. 16019. . . . . . . | ls Gen. No. 141284.
STATE OF ILLINOIs, }ss
COUNTY OF GOOK.
CIRCUIT COURT OF COOK COUNTY.
-A-T Tu-A-TVX7".
TO THE APRIL TERM, A. D. 1895.
WEST AND SOUTH TOWNS STREET RAIL-
WAY COMPANY
*
Q)S. - Case.
WEST CHICAGO STREET RAILWAY CO.,
CHARLES T. YERKES ET AL.
Conspiracy. -
PECK, MILLER & STARR,
C. C. & C. L. Bonn EY and
LYMAN M. PAINE,
Attorneys for Plain/iff.
*** -º-º-º-º: “-------~ *-**mºmºsºm-º.
CHICAGO :
Printed by the Chicago Legal News Company.
I895.
STATE OF ILLINOIs, SS
County OF COOK.
IN THE
CIRCUIT COURT ()F COOK COUNTY.
OF THE APRIL TERM, A. D. 1895.
WEST AND SOUTH TOWNS STREET
RAILWAY COMPANY
U.S.
THE WEST CHICAGO STREET RAIL-
ROAD COMPANY, CHARLES T.
YERKES, JOHN B. PARSONS, THE \ Declaration on the
AMERICAN SURETY COMPANY OF -
NEW YORK, GUST,\V H. CARLSON,
THE UNION PLANING MILL COM-
PANY., JOHN KUMMER, JOHN VAN-
DERPOEL, JOHN VANDERPOEL, JR.,
STEPHEN V. BRUNDAGE, FRANK
KIRCH MAN, JOSEF SHIMA AND
JOSEF BAUMRUK.
Case for Conspiracy.
The West and South Towns Street Railway Company, a
corporation duly organized under the laws of the State of
Illinois, the plaintiff in this case, by the undersigned,
its attorneys, complains of the West Chicago Street Railroad
Company, Charles T. Yerkes, John B. Parsons, The Amer-
ican Surety Company of New York, Gustav H. Carlson,
The Union Planing Mill Company, John Kummer, John
2
Vanderpoel, John Vanderpoel, Jr., Stephen V. Brundage,
Frank Kirchman, Josef Shima and Josef Baumruk, of a
plea of trespass on the case.
For that, whereas, heretofore, to wit, on or about the 22d
day of August, A. D. 1891, to wit, at the county and State
aforesaid, the plaintiff was duly incorporated under the
laws of the State of Illinois, for the purpose of constructing
and operating a horse, electric, cable or dummy railroad, on
any or all such streets and alleys within the present or fu-
ture limits of the city of Chicago, as might be granted to it
by the city council of said city: .
And, whereas, also, afterward, to wit, at the county of
Cook aforesaid, on or about the 8th day of February, A. D.
1892, the city of Chicago, a municipal corporation in the
said county of Cook and State of Illinois, organized under a
certain act of the General Assembly of the State of Illinois,
entitled “An Act to provide for the incorporation of Cities
and Villages,” approved April 10, A. D. 1872, and in force
July 1, A. D. 1872, did, by its city council, pass, ordain and
enact a certain ordinance whereby it gave and granted
unto the plaintiff certain licenses, franchises, rights of way,
rights of occupancy, rights of use, privileges and authority,
which were expressed, clothed and conveyed in the terms
following, in substance, that is to say:
“To lay down, construct, operate and maintain a single
or double track street railway, with all the necessary and
convenient turnouts, turn-tables, side tracks, connections
and switches, in, upon, Over and along certain portions of
certain streets, lots, blocks, or ground in the city of Chicago,
including the right to cross all connecting, abutting or in-
tersecting streets, avenues, courts, places, alleys and public
highways, as follows: -
Upon that portion of Twenty-second street lying between
the east line of Grove street and the west line of Johnson
street; also upon that portion of Twenty-second street lying
between the west line of May street and the west line of
Crawford avenue; also upon that portion of Lawndale ave-
nue lying between the north line of West Twenty-second
3
street and the south line of Thirty-fifth street; also con-
necting the road terminating at the west line of Johnson
street with the road beginning at the west line of May
street, by constructing or operating over, along and across
such blocks, lots, ground, public highways, or tracks now
laid, as it may have or acquire by lease, contract, purchase,
condemnation or otherwise, according to law, said con-
nection to be made within three hundred and fifty (350)
feet north or south of the center line of said Twenty-second
street. Which said grant and which said licenses, fran-
chises, rights of way, rights of occupancy and privileges,
and which said ordinance the plaintiff on, to wit, the 9th
day of February, 1892, duly accepted in writing :
And, whereas, also, afterward, to wit, on or about the 5th
day of April, A. D. 1893, the city of Chicago, by its city
council, also passed, ordained and enacted a certain other
ordinance, approved, to wit, April 6, 1893, and in force on
the same day, wherein and whereby said city council gave
and granted unto the said plaintiff certain other licenses,
franchises, rights of Way, rights of occupancy and use, priv-
ileges and authority, which are expressed, clothed and set
forth in the terms following, in substance, that is to say:
“To construct, operate and maintain a single or double
track street railroad, with all necessary and convenient
curves, turnouts, side tracks, connections and switches, in,
upon, over and along the streets mentioned as follows:
On West Twenty-fifth street, beginning at the west line of
Lawndale avenue and extending to the east line of Rock-
well street; on Rockwell street, commencing at the South
line of Twenty-sixth street, and extending to the north line
of Nineteenth street; on Kedzie avenue, counmencing at the
north line of Twenty-second street and extending to the
south line of Thirty-first street; on Homan avenue from
the north line of Twenty-second street to the south line of
Twenty-third street, including the right to cross all con-
necting, abutting or intersecting streets, avenues, courts,
places, alleys and public highways:”
Which said last mentioned ordinance was, and purported
4
to be, an extension of and addition to the ordinance of
the said city council above mentioned; and was enacted for
the purpose of extending and enlarging said first mentioned
grant to said plaintiff; which said grant, and which said
licenses, franchises, rights of way, rights of occupancy
and privileges, and which said ordinance the plaintiff on,
to wit, the 6th day of April, 1893, duly accepted in writing.
And, whereas, also, the ordinance aforesaid, and each of
them, and all and singular the licenses, franchises, grants,
privileges and authority therein specified, were thereupon,
duly accepted by said plaintiff; and said plaintiff thereupon,
without unnecessary delay, to wit, on or about the to wit,
the 28th day of April, A. D., 1892, to wit, at the county
aforesaid, entered upon the actual construction of the said
street railway so authorized by said ordinances aforesaid,
and proceeded in the work of said construction until the
same was hindered, obstructed, and for a time prevented,
by reasons of the combinations, conspiracies and other un-
lawful doings hereinafter set forth :
And whereas, also, at the time of the passage of the ordi-
nances aforesaid, respectively, and for many years prior
thereto, the said Twenty-second street, which is mentioned
in said ordinances, was a public highway and thoroughfare
of the said city of Chicago, and then and there extended in
a westerly direction from the South branch of the Chicago
river, in said city, to and for the space of more than five (5)
miles beyond said south branch of said river, to wit, to the
western limits of the said city of Chicago, and by reason of
the direction of said river, and the docks located along the
same, and the other circumstances and conditions of that
portion of the said city of Chicago, the said Twenty-second
street constituted the principal east and west thoroughfare
for a large number of people and citizens of said city, to
wit, more than two hundred thousand (200,000) persons
thereof, which number of said people and citizens then re-
sided, and still reside, along or in the vicinity of West
Twenty-second street; and who, for a long space of time
theretofore, had been without any adequate means of trans-
5
portation upon and along said West Twenty-second street,
and were, accordingly, in great and urgent need thereof;
to supply which need and promote and perform the objects
of said incorporation, the said plaintiff was duly incorpo-
rated as aforesaid, and received and accepted said ordi-
mances and licenses, grants, franchises and privileges
therein and thereby conveyed, and began the construction
of its said railway as aforesaid.
And whereas, also, the said West Chicago Street Railroad
Company then was, and for a long space of time theretofore
had been, engaged in the business of operating certain street
railways in other parts of the said city of Chicago, none of
which said street railways did nor could in any wise, prop-
erly accommodate and provide for the wants of the said
more than two hundred thousand (200,000) people afore-
said; and the said West Chicago Street Railroad Company
ought not in any way to have sought to interfere with, hin-
der or prevent the construction of the railway of the said
plaintiff:
Nevertheless, the said West Chicago Street Railroad Com-
pany, and said other defendants, not respecting either the
welfare of the people and citizens aforesaid, nor the just
rights of the said plaintiff in that behalf, thereupon, to wit,
at Cook county, aforesaid, on, to wit, the 18th day of March,
1892, and on divers other days between that date and the
time of the commencement of this suit, devised, formed and
entered into a conspiracy and agreement with each other
and with certain persons whose names are unknown to
plaintiff, in the manner hereinafter more particularly set
forth, with the wilful, unlawful and malicious purpose and
intent, wrongfully and wickedly to injure the business and
property of said plaintiff, and hinder and prevent the con-
struction, maintenance and operation of its said railway,
and to prevent and stifle competition in the business and
trade of carrying passengers in that portion of the city of
Chicago, known as the West Division thereof, and to restrain
trade and traffic in the carriage of passengers in the streets
thereof, and in violation of public policy and the law of the
6
land; to hinder, obstruct and prevent the plaintiff from
operating its said property, as a public servant and carrier
of passengers; and from performing the duties imposed
upon it by the said ordinances giving and granting the
licenses, franchises, privileges and authority aforesaid:
And the Said plaintiff avers that in pursuance of said
fraudulent, malicious, wrongful and wicked conspiracy to
injure the business and property of said plaintiff, and of
the unlawful purposes and objects, and by the unlawful
means herein set forth, the said defendants did each and
every of the acts and things against plaintiff as hereinbefore
and hereafter set forth, and instigated the bringing and
prosecuting of divers suits, more fully described as follows,
to wit: On the 14th day of October, 1892, at, to wit, said
county of Cook, at the said instigation of said defendants
and in pursuance of said conspiracy, a certain suit was
brought by the Union Mill Planing Company in the
Superior Court of Cook County against this plaintiff
and the city of Chicago, known as General No. 142,891
in said court; and also, at defendant's instigation as
aforesaid, and in pursuance of said conspiracy, as aforesaid,
on, to wit, the 16th day of December, 1892, at, to wit, said
county of Cook, a certain other suit was brought by John
Vanderpoel, John Vanderpoel, Jr., and Stephen Brundage
in the Circuit Court of said county, against this plaintiff,
known as General No. 110,378 in said court; and also at de-
fendants’ instigation, as aforesaid, and in pursuance of said
conspiracy as aforesaid, a certain other suit was brought by
A. E. Smith, Frank Kirchman, Elizabeth Benton, Bertrand
Descouzaux and John Lobstein on, to wit, the 23d day of
September, 1893, against the plaintiff, known as general No.
120,955 in said Circuit Court, and also at defendants’ in-
stigation as aforesaid, and in pursuance of said conspiracy,
as aforesaid, at to wit, said county of Cook, a certain other
suit was brought on, to wit, the 14th day of October, 1893, by
Josef Matousek, Josef Strnad, Josefa Kral, John Vachout,
John Flusek, John Dedic, Josef Vlach, John Novak, John
Kristufek, Josef Kral, James Kacirek, Frank Nemec, Frank
7
Kastner, Frank Medel, Frank J. Ring, Josef Macek, Frank
Beran, Frank Vittner, Frank Zajicek, Frank Fortelka,
Frank Kirchman, Oldrich Farsky, Karel Moulik, Anton
Bunda, John Baumruck, Ignatz Weiss, Vojteck Stocklas,
Vincenc Sadilek, William M. Ervin, Maria Krska, Frank
Pleticha, Frank Mejzlik, Josef Baumrek, Vaclav Peceny,
Frank Sequens, Matej Tintera, Jan Chalupa, Anton Dlouhy,
Frederick Frish, Josef Lukes, Josef Stein, Frank Talman,
Frank Slepicka, Vaclav Caba, Frank Macek, John Baum-
ruk, Thomas Lyndon, Matej Kara, Vaclav Slepicka, Frank
Kacena, Josef Zahradka, William Martin, G. R. Bachelle,
Charles Stepanek, Matej Matousek and Josef Lurie, admin-
istrators of the estate of Adolf Lurie, Matej Padrta, Martin
Straka, Benedict Irmis, and Joseph Vachulka, in the Circuit
Court of Cook County, aforesaid, against this plaintiff, and
against the Chicago General Street Railway Company, known
as General No. 121,878 in this court; and also, at defendants
instigation, as aforesaid, and in pursuance of Said conspiracy,
as aforesaid, on, to wit, the 8th day of August, 1894, at, to
wit, said county of Cook, a certain other suit was brought by
Josef Shima and Vaclav Halama, in the Circuit Court of
Cook County, against this plaintiff and against the Chicago
General Street Railway Company known as General No.
132,704 in this court; and also, at defendants' instigation,
as aforesaid, in pursuance of Said conspiracy, as aforesaid,
said defendants procured the issuing, service and continu-
ing of divers orders and writs of injunction in said suits,
restraining and preventing the construction and operation
of the plaintiff’s said lines of railway, and of certain por-
tions thereof, to wit, in the said suit brought by the Union
Planing Mills Company, restraining and preventing the
construction and operation of plaintiff’s lines of railway,
and portions thereof, to wit, between the west line of John-
son street, and the west line of May street fronting on 22d
street; and in said suit brought by John Vanderpoel, John
Vanderpoel, Jr., and Stephen V. Brundage, restraining and
preventing the construction and operation of plaintiff’s lines
of railway, and portions thereof, to wit, on 22d street from
S
Grove street to Crawford avenue; and in said suit brought
by Josef Matousek, Josef Strnad, Josefa Kral, John
Vachout, John Flusek, John Dedic, Josef Vlach, John
Novak, John Kristufek, Josef Kral, James Kacirek, Frank
Nemec, Frank Kastner, Frank Medal, Frank J. Ring, Josef
Macek, Frank Beran, Frank Vittner, Frank Zajicek, Frank
Fortelka, Frank Kirchman, Oldrich Farsky, Karel Moulik,
Anton Bunda, John Baumruck, Ignatz Weiss, Vojtech
Stocklas, Vincenc Sadilek, William M. Ervin, Marie Krska,
Frank Pleticha, Frank Mejzlik, Josef Baumruk, Vaclav
Peceny, Frank Sequens, Matej Tintera, Jan Chalupa, Anton
Dlouhy, Frederick Frish, Josef Lukes, Josef Stein, Frank
Talman, Frank Slepicka, Vaclav Caba, Frank Macek,
John Baumruk, Thomas Lydon, Matej Kara, Waclav
Slepicka, Frank Kacena, Josef Zahradka, William Martin,
G. R. Bachelle, Charles Stepanek, Matej Matousek,
and Josef Lurie, administrators of the estate of Adolf
Lurie, Matej Padrta, Martin Straka, Benedict Irmis
and Joseph Vachulka, restraining and preventing
the construction and operation of plaintiff’s line of
railway, and portions thereof, to wit, between 22nd street
and 31st street on Kedzie avenue; and in said suit brought
by Josef Shima and Vaclav Halama, restraining and pre-
venting the construction and operation of plaintiff's line of
railway, and portions thereof, to wit, between Rockwell street
and Lawndale avenue on 25th street; and to wit, in said case
brought by said A. E. Smith, Frank Kirchman, Elizabeth
Benton, Bertrand Descouzaux and John Lobstein, in pur-
suance of said conspiracy, said defendants sought to obstruct
and prevent the construction and operation of plaintiff’s
entire lines of railway in 22nd street; and by means thereof
interfered with the construction and operation of said rail-
ways of said plaintiff whereby the construction and equip-
ment of said railways and the operation of the same, were
greatly hindered and delayed, and said plaintiff for a long
space of time, to wit, the space of, to wit, two (2) years, was
hindered, obstructed and prevented from constructing and
completing, equipping and operating its railway, as it law-
9
fully might have done, and as it was for its interest and
benefit to do, and as the needs of said people and citizens
required, as said plaintiff would otherwise have done;
whereby the said plaintiff was deprived of a very large
amount of income, gains and profits, to wit, the sum of
eight hundred thousand dollars ($800,000), which it would
otherwise have made and realized by the operation of its
said railway, and the carriage and transportation of the
people aforesaid, according to the original intent and pur-
pose of the ordinance aforesaid, respectively.
And said plaintiff further avers that in the pursuance of
the said fraudulent, unlawful, wrongful and wicked com-
bination, conspiracy and agreement, the said defendants in
and about the matters aforesaid, put the said plaintiff to
great labor, annoyance, vexation and expense, in contest-
ing, opposing, vacating, dissolving and removing the
means, to wit, the said orders and writs of injunction by
which the said defendants, as aforesaid, hindered, delayed,
obstructed and prevented the construction and operation of
the railway of the said plaintiff.
And the said plaintiff avers that it was thereby compelled
to and did pay out and expend large sums of money, to
wit, fifty thousand dollars for reasonable fees and charges
of its solicitors and counsel in and about procuring the dis-
solution of said orders and writs of injunction in said causes,
thereby rendered necessary therein by reason of the wrong-
ful suing of the same; and in like sum by reason of other
fees and charges of its solicitors and counsel, necessarily
incurred by this plaintiff, and by it so incurred in said
suits; and in like sums by reason of other disbursements
and expenses necessarily incurred by this plaintiff, and by
it so incurred in and about the procuring of the dissolution
of said injunction, and that the same was rendered nec-
essary by the wrongful acts of the defendants aforesaid.
And the said plaintiff further avers that the said West
Chicago Street Railroad Company, and the said Charles T.
Yerkes, and the said John B. Parsons, who were the origi-
nators and chief actors in the organization and execution
10
of said conspiracy, unlawful combination and agreement,
then and there well knowing that the persons whom they
then intended to induce to enter into and become parties to
said conspiracy, would not be willing, and would not be able
to furnish the security and bonds of indemnity which would
in due course of the proceedings, be required of and from
said parties, as the complainants of record in the suits which
the parties last aforesaid then proposed and intended to pro-
cure to be brought in the execution of said conspiracy, for
the purpose of preventing the construction of the railway
of the said plaintiff as aforesaid; thereupon, then and there,
sought and obtained the co-operation and aid of the said
defendant, The American Surety Company, of New York;
and in consideration of certain moneys to be paid to said
Surety Company from time to time, induced the said Surety
Company to enter into an agreement, and undertake to fur-
nish all such security and bonds of indemnity as should
from time to time be required in the course of the suits so
as aforesaid intended to be brought, for the purpose afore-
said; whereby the said Surety Company, well knowing that
the persons aforesaid, by whom its co-operation and aid was
sought, and by whom it was to be compensated and paid
for such co-operation and aid, were rivals in business of said
plaintiff, and had no other interest in the suits so as afore-
said proposed to be brought for the purpose of preventing
the construction of the railway of the said plaintiff, then
and there entered into and became a party to said conspir-
acy, and in pursuance of the same afterward became the
surety, and furnished the bonds of indemnity required in
the five several cases, so as aforesaid, brought for the pur-
pose aforesaid, in pursuance of Said conspiracy; by means
whereof the said American Surety Company of New York
became one of the chief actors in the execution of said con-
spiracy, and liable to said plaintiff for all the damages re-
sulting therefrom.
And the said plaintiff further avers that the said West
Chicago Street Railroad Company was the real principal in
all the suits so brought as aforesaid, to prevent the construc-
11
tion of the railway of said plaintiff; and that in truth and
in fact, said West Chicago Street Railroad Company under-
took to indemnify and save harmless all the other parties
so as aforesaid induced to become members of said conspi-
racy; but that for the purpose of concealing its own prin-
cipalship therein, and avoiding the liabilities, which it well
knew would thereby be incurred, the said West Chicago
Street Railroad Company, in manner aforesaid, and for the
consideration aforesaid, induced the American Surety Com-
pany of New York, as a member of said conspiracy, to take
its place and appear to the public as the surety of the sev-
eral parties complained of in the suits aforesaid respect-
ively.
And the said plaintiff further avers that on September
3, 1892, the plaintiff contracted with the Chicago Railway
Construction Company for the construction of four (4)
miles of double track railway on said 22d street, between
Grove street and Lawndale avenue, and also on other por-
tions of its said line of railway set forth in said ordinance,
passed April 5, 1892, and for material therefor, and for
prices which, in the aggregate, amount to about the sum of,
to wit, one hundred thousand dollars ($100,000), and before
October 1, 1892, said contractor began the work and bought
the material therefor, and began the construction of said
railway, and continued the construction thereof until the
same was stopped by the said wrongful acts of defendants;
that about two and one-half (2%) miles of double track and
1,100 feet of single track had been laid prior to said stop-
page, but that the further construction of said railway and
the completion and performance of said contract, and the
construction of the remainder of said railroad, in addition
to that provided for under said contract, was prevented,
and nothing could be done and nothing was done upon
the same from the date of the issuing of said injunction
wrongfully procured by said defendants in pursuance of
said conspiracy, and in the name of said defendant, the
Union Planing Mill Company, on the 7th day of Novem-
ber, 1892, until the date of the dissolution thereof, to wit,
12
the 4th day of May, 1894, to the great loss of income, gains
and profits as aforesaid. -
And plaintiff further avers that it paid out on said con-
tracts, while said injunction was in force and undisposed of,
and while it was unable to utilize and use said material, a
large sum of money, to wit, the sum of upwards of, to wit, one
hundred thousand dollars ($100,000), and so lost the use
thereof, and the other benefits it would have otherwise re-
ceived therefrom.
And this plaintiff further avers that, prior to the wrong-
ful issuing of said injunctions, it had issued bonds for the
sum and par value of, to wit, five hundred thousand dol-
lars ($500,000), to wit, five hundred (500) bonds of the par
value of, to wit, one thousand dollars ($1,000) each, which
were placed in the hands of a trustee for sale and disposi-
tion; and that at the time of the wrongful issuing of said
injunctions, this plaintiff had negotiated the sale of,
and said trustee had sold and delivered in pursuance.
thereof, to wit, fifty thousand dollars ($50,000) of said bonds;
and that the remainder of said bonds were still in the hands
of said trustee at the time of Said wrongful issuing of said
injunctions, and said other wrongful and unlawful acts of
said defendants in pursuance of said unlawful conspiracy;
that the said bonds were negotiable, and were issued to be
disposed of for the purpose of raising funds for the construc-
tion of said company’s railroad.
That said bonds were interest bearing at the rate of six
per cent, and were secured by a trust deed upon the fran-
chises and property of this plaintiff, and were valuable se-
curities and of great market value, to wit, of the market
value of five hundred thousand dollars ($500,000); and
plaintiff had contracted for the sale and disposition of a large
portion of said bonds, to wit, about two hundred thousand
dollars ($200,000) thereof, in addition to the said fifty thou-
sand dollars ($50,000) of bonds which had been disposed of,
and all of said bonds were readily saleable, and would have
been easily disposed of at their market value, to wit, at the
par value thereof, but for the wrongful issuing out of said
13
injunctions, and said other wrongful and unlawful acts of
said defendants, in pursuance of said unlawful conspiracy;
and by reason thereof, the parties who had agreed to take
and dispose of said two hundred thousand dollars ($200,000)
of bonds were unable to perform their said contract, and failed
so to do; and this plaintiff was deprived of the benefits of
said contract, and thereby sustained great damage, injury
and loss from the wrongful issuing of said injunctions and
said other wrongful and unlawful acts of said defendants in
pursuance of said unlawful conspiracy, to a large amount,
to wit, the surn of two hundred and fifty thousand dollars
($250,000).
And the plaintiff further avers that at the time of the
issuing of said injunctions, plaintiff was negotiating the pur-
chase of real estate for the purposes of its business, for a
large sum of money, and the completion of said purchase
was prevented by the wrongful issuing of said injunctions,
and said other wrongful and unlawful acts of said defend-
ants in pursuance of Said unlawful conspiracy, and plaint-
iff was deprived of the use and profits of said real estate
thereby, and thereby suffered other great losses and injuries
to a large amount, to wit, the further sum of twenty thou-
sand dollars ($20,000).
And the plaintiff further avers unto the court that before
the wrongful issuing of the said injunctions, and said other
wrongful and unlawful acts of Said defendants in pursuance
of said unlawful conspiracy, this plaintiff contracted with
the Siemens-Halske Electric Company for furnishing elec-
tric motive power for the operation of said railroad by a val-
uable contract, equivalent in value to the plaintiff of fifty
thousand dollars ($50,000); that said contract was impaired
and rendered liable to be lost to the plaintiff by said injunc-
tions and said other wrongful and unlawful acts of said de-
fendants in pursuance of said unlawful conspiracy; that
said Siemens-Halske Electric Company claimed that said
contract applied to the operation of the completed road of
this plaintiff, and to such completed road only; that by
reason of the wrongful issuing of said injunctions, and said
14
other wrongful and unlawful acts of said defendants in pur-
suance of said unlawful conspiracy, this plaintiff was pre-
vented from completing its said railroad; and said Siemens-
Halske Electric Company have rendered to this plaintiff
extra bill for power which said Siemens-Halske claim was
furnished to operate the uncompleted portion of said rail-
road, at a higher rate of expense than is provided for in
said contract; and this plaintiff does not admit said claim
of said Siemens-Halske Electric Company of America to be
true, that said contract applied only to a completed road;
that there is litigation now pending and undetermined in
this court between this plaintiff and said Siemens-Halske
Electric Company of America by reason of the fact that it
was prevented from completing said railroad by the wrong-
ful issuing of said injunction, and said other wrongful and
unlawful acts of said defendants in pursuance of said un-
lawful conspiracy; and that by the said claims of said Siemens-
Halske Electric Company on account thereof, and the costs
of said litigation to the plaintiff caused thereby, the plaint-
iff was and is further injured and in a further large
amount, to wit, the sum of ten thousand dollars ($10,000),
and if the claims of said Siemens-Halske Electric Company
should be sustained, this plaintiff will be further injured
and damaged thereby in a further large amount, to wit,
the sum of five thousand dollars ($5,000).
The plaintiff further avers that at the time of the wrong-
ful issuing of said injunctions, and said other wrongful and
unlawful acts of said defendants in pursuance of said un-
lawful conspiracy, the construction of said railroad was be-
ing carried on rapidly, and plaintiff was prepared to com-
plete its road and put it in operation quickly; and that the
same could have been completed and put in operation
within ninety (90) days next after the date of the wrongful
issuing of the first of the said injunctions and said other
wrongful and unlawful acts of said defendants in pursuance
of said unlawful conspiracy, and would have been com-
pleted and put in operation within ninety days after the
15
date of the issuing of the first of same, if the work had not
been stopped thereby. -
This plaintiff further avers that in a further endeavor to
serve and promote the welfare of itself and of the said popu-
lation of about 200,000 people, living in the vicinity of said
railway of the plaintiff, and dependent upon the construc-
tion and operation of said road for transportation and com-
munication between the portions of the city through which
said road extends, and thence by connections with other
roads to other portions of the city of Chicago, said plaintiff
had opened negotiations which were pending at the date of
said injunctions, and said other wrongful and unlawful
acts of said defendants in pursuance of said unlawful con-
spiracy, to connect said railroad with the Cicero & Proviso
Railroad Company, which owns and operates an electric
road to the west of the city of Chicago, beginning at the
city limits of Chicago on the west, and near the terminus of
the road of this plaintiff; but that said negotiations were
brought to an end and stopped entirely by said wrongful
issuing of said injunctions and said other wrongful and un-
lawful acts of said defendants in pursuance of said unlaw-
ful conspiracy, and since the issuing of said injunctions and
said other wrongful and unlawful acts of said defendants in
pursuance of said unlawful conspiracy, and prior to the dis-
solution thereof, the said Cicero & Proviso Railroad was
purchased, and the control thereof obtained by persons
acting in the interests of the said West Chicago Street Rail-
road Company, a railway company which was and is as
aforesaid, a rival and competitor of the plaintiff company,
and thereby said connection with said Cicero & Proviso
Railroad has been entirely prevented, and this company
has been permanently injured and damaged thereby, and
has sustained a further loss of reven we from through travel
which it would otherwise have received from said Cicero &
Proviso Railroad, which loss amounts to the further large
sum of, to wit, one hundred and fifty thousand dollars
($150,000).
And plaintiff avers that its line of railroad aforesaid, was
16
and is laid out so as to connect the lumber and manufact-
uring districts of Chicago, on each side of 22nd street, and
between Western avenue and Lumber street, about two and
one half (23) miles long, and the large manufacturing estab-
lishments in the same district, with the residence settlement
and districts of Lawndale, and thereabouts, and connects
such residence districts and lumber manufacturing districts
with the South Side of the city, and the residence districts
and railroads east of the river. And but for the wrongful
acts aforesaid by defendants committted in pursuance of
said conspiracy, would have begun to operate throughout
its said entire line in 22nd street, on or about, to wit, De-
cember 15, 1892, and would, from the said beginning of its
operation, throughout its line in 22nd street, aforesaid, have
carried a large number, to wit, 35,000 people a day and up-
wards, for the fare of five cents a head, and that the net re-
ceipts of said railroad over operating expenses, would have
amounted to, to wit, upward of one thousand seven hun-
dred dollars ($1,700) a day, and, to wit, upward of two
hundred and fifty thousand dollars ($250,000) a year; that
the wrongful issuing of said injunctions and said other
wrongful and unlawful acts of said defendants in pursuance
of said unlawful conspiracy, has caused the plaintiff damage
by reason of the prevention of the operation of said rail-
road, and the prevention of the receipt of said net revenues
of not less than $1,700 per day from the date at which the
same would have been completed, if the completion had
not been prevented, to wit, from the date about the 15th
day of December, 1892, to the 15th day of January, 1895;
and that thereby the plaintiff was damaged to the extent of,
to wit, five hundred thousand dollars ($500,000).
And the plaintiff further avers that in addition to the
aforesaid damages which it has sustained it was further
damaged in this, by the issuing of said injunctions and said
other wrongful and unlawful acts of said defendants in
pursuance of said unlawful conspiracy; that in the year
1893, there was held in the city of Chicago the World's Co-
lumbian Exposition, an international exposition of the arts,
17
sciences, manufactures products, manners and customs of
the nations of the world, also known as the World's Fair;
that in and about the erecting and establishing of said ex-
position the sum of, to wit, thirty-five million dollars were
expended; and said exposition continued for a period of six
months, from about the 1st of May, 1893, to about the 1st
of November, 1893, and was attended by an average of, to
wit, 110,000 persons per day; that said exposition was held
at the southeast portion of the city of Chicago, at a distance
of about five miles from the eastern terminus of the plaint-
iff's line of railway, and at a distance of about, to wit, nine
(9) miles from its station at Lawndale Ave.; that said expo-
sition was the greatest of its kind that has ever been held,
and was eagerly visited by the entire population living
along the line of plaintiff’s railroad many times during its
continuance; that if the construction of the said rail-
road of said plaintiff, and its operation as a completed
road had not been prevented by the wrongful
issuing of said injunctions and the said other
wrongful and unlawful acts of said defendants in pur-
suance of said unlawful conspiracy, that plaintiff would have
been able to carry, and would have carried, to wit, 20,000
passengers per day and upwards thereof, in addition to the
carriage of, to wit, 35,000 people per day, as aforesaid, be-
ing, to wit, ten thousand passengers in each direction in
each day of the six months, and thereby have gained and
received a net profit of, to wit, $1,000 per day for the said
World's Fair trade, amounting in all to, to wit, $183,000;
that in addition thereto, immediately preceding the opening
of said Fair to the world, there was a large amount of travel
thereto, and there were many people living along the line
of said railway who desired to go and see the Fair in its
incompleted state, and that therefrom plaintiff, if it had
not been prevented from completing its said road as afore-
said, by the wrongful issuing of said injunctions and said
other wrongful and unlawful acts of said defendants in
pursuance of said unlawful conspiracy, would have received
18
additional income from carrying passengers therefor, prior
to the opening of Said Fair, amounting to a large sum, to
wit, two hundred dollars ($200) per day; and was deprived
thereof by the wrongful issuing of said injunctions and said
other wrongful and unlawful acts of said defendants in pur-
suance of said unlawful conspiracy, and this plaintiff was
thereby further injured and damaged in said amounts re-
spectively. * * -
And the plaintiff further avers that its said line of rail-
way in 22d street, as laid out and proposed, effected a
junction with the tracks of the Chicago City Railway Com-
pany, on the South Side of the City of Chicago, at the east-
ern terminus of the plaintiff’s line of road, and that at the
time of the issuing of Said injunctions and said other wrong-
ful and unlawful acts of said defendants in pursuance of
said unlawful conspiracy, said tracks of plaintiff were laid
within about five hundred (500) feet of the point of said
junction; and that said Chicago City Railway Company’s
road extended from thence to the gates of said Exposition;
that the eastern terminus of the plaintiff’s railroad was
within a short distance, to wit, five hundred (500) feet of
the tracks of a certain other railroad, to wit, the South
Side Elevated Road, which extended thence to the gates of
the said Exposition; that said junction and connection
would have been made, and the business of said plaintiff
would have been largely increased but for the wrongful
and malicious suing of Said injunctions, and said other
wrongful and unlawful acts of Said defendants in pursu-
ance of said unlawful conspiracy, whereby the plaintiff
was deprived of other large gains and profits. +
And the said plaintiff further avers that in pursuance of
the conspiracy, combination and agreement aforesaid, the
said defendants respectively, also induced other persons,
whose names are yet unknown to said plaintiff and there-
fore can not here be set forth, to unite with them in the un-
lawful doings aforesaid; and also in many other ways than
those which are above set forth, hindered, delayed, ob-
structed and inflicted damage and injury upon said plaint-
19
iff in and about the matter of its said railway, and the con-
struction, completion, equipment and operation thereof,
and thereby prevented said plaintiff from receiving the
gains, income and profits which would otherwise have
accrued therefrom.
By means of all which premises the said plaintiff has sus-
tained great damage, to wit, to the amount of one million
dollars ($1,000,000); wherefore it brings suit, etc., by
PECK, MILLER & STARR,
C. C. & C. L. BONNEY,
L. M. PAINE,
Attorneys for Plaintiff.
12.


No Seat, no Fare,
in ECIrope.
A copy of this report will be mailed to any address in the
United States upon request sent to
C. L. BONNEY,
Vice-President Chicago General Railway,
5 II Tacoma Building,
Chicago.
NO SEAT, NO FARE, IN EUROPE.
*-i-º---------------------------e.
CHICAGO, September 30, 1895.
To Hon. George B. Swift, Mayor, and the Honorable Aldermen of the
City of Chicago : -
GENTLEMEN, -A trip to the capitals of Europe was recently
made by me for the purpose of obtaining information of the rates of
fare and police regulations of street railways. Permit me to present
some of the data collected, for such use as you may think proper.
LONDON.
In London the intramural transportation business is done by
about thirty different companies and private individuals, who operate
respectively from one to one thousand vehicles. The largest of the
Loíldon companies in 1894 carried I.33, 131,902 passengers. London
has a graded system of fares, which is a very expensive system for
the company. The lowest fare is a halfpenny, or one cent, and is
increased according to distance, so that the passenger pays about one
cent for each mile of ride. The average fare received by the com-
pany referred to during 1894 was three and one-fifth cents, or equal
to six rides for twenty cents. Each vehicle requires a driver and
conductor, and its capacity is generally limited to twenty-six passen-
gers, fourteen on top and twelve inside. The Commissioner of Police
is authorized to make regulations in respect to the route to be taken
by each vehicle. No pictures or advertisements are permitted, unless
approved by the Police Department, and they must be so placed as
not to obstruct ventilation. Before each vehicle is licensed, it must
be brought to the police station, where it is examined by an Inspector
of Public Carriages. If he is satisfied that the vehicle is “fit for
public use,” he gives the vehicle its number. The license specifies
the number of passengers permitted to be carried, and the police reg-
ulations provide that an additional person shall not remain when
warned by the conductor that the vehicle is full. The conductor is
required not to permit such additional person to remain. This
additional person and the conductor are each subject to a fine of not
exceeding forty shillings in case of violation. Under these condi-
tions, the company last year paid eight per cent dividend on its
stock, and also carried all amount to its surplus account. In London
the cab fare for a two-wheeled vehicle is one shilling –— twenty-five
cents—and the charges are the same for one, two or three persons,
which makes serious competition for all the street railway compa-
nies. The metropolitan police district of London contains considera-
bly over five million people, and every person who rides is furnished
with a seat.
BERLIN. **
In Berlin the franchise of the principal street railway company
expires in 1911. During the life of this franchise the company will
pay into the city treasury two times its capital stock. At 1911 all
the street coustruction becomes the property of the city, and the
horses, cars, stables, etc., may be purchased by the city at its option.
All street repairs are done by the city, at the expense of the com-
pany, but, unlike American customs, the repairs are carefully and
economically made. The police control the traffic in the streets in
every respect. Berlin has a graded system of fares. In 1894,
I31,800, Ooo passengers were carried by this company, for which it
received an average of a trifle more than eleven pfennings, or two
and three-quarter cents per passenger, or six rides for seventeen
cents. With this rate of fare, sufficient surplus is being accumulated
to retire all bonds before 191 I, and leave two hundred (200) per cent
for the stockholders. The stock of the company is now quoted at
--
three hundred (300). This street car company is subject to effective
competition of an omnibus company. Tickets are not sold in
advance, but are given to each passenger as they pay their fare, and
the police regulations require the passenger to retain and to produce
such ticket on demand of the conductor or inspector. Every passen-
ger is provided with a seat.
A COMPARISON FOR 1894.
London Company seated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I33, I 3 ſ, 902
Berlin Company seated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I31,800,000
West Chicago Company freighted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85,287,302
Chicago City Company freighted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84,794,987
North Chicago Company freighted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,571,463
PARIS.
In Paris the rate of fare is high, inside the vehicle being thirty
centimes (which includes a transfer ticket), or six cents, The fare
on top, which does not include a transfer, is, however, three cents.
Special 'buses also run between the railway stations at a charge of
five cents, but are not permitted to take on or let off passengers
between the terminals. The competition from the hack service is
a very effective one, two or three people being carried for thirty (30)
CentS. Q
..ST. PETERSBURG AND MOSCOW.
In St. Petersburg and Moscow the fare is uniform ; inside the
cars it is two cents and a half, and on top one cent and a half. The
competition of the cab service is carried on at the rate of twelve and
a half cents for one or two persons.
CHRISTIANIA AND STOCKHOLM.
In Christiania and Stockholm the uniform fare of ten ore — two
and a half cents — is charged.
VIENNA.
In Vienna the graded fare is from four cents up, according to
distance. -
BRUSSELS.
In Brussels the graded fare is from two cents up, according to
distance.
A SEAT FOR EVERYONE.
In all of these cities, and I believe in every other city in Europe,
every passenger is provided with a seat, and the regulation is so well
understood that it does not produce any disorder or complaint. In
fact, the overcrowding practiced in American cities would not be
tolerated at all.
JOINT USE OF TRACKS.
In pioneer days the American street car privileges were declared
to be legal contracts which could not be subsequently altered with-
out consent of the street railway company, but with the progress of
civilization the courts have discovered that, although the municipal
body may contract or sell the property of which it is proprietor, it
cannot either contract or sell the rights held by it as trustee for the
whole people. The American street railway privileges are not con-
strued to be exclusive, except when so expressly stated, and even
then the rule of construction limits the exclusive rights of the
railway company, as much as possible, in favor of the people. The
principle that the people own the fee of the streets, and that the
l
municipal body may grant to a new railway company the right to
use the tracks of the old company, upon paying compensation, has
been developed in Ohio and Massachusetts to a praiseworthy
extent. The Supreme Court of Illinois now holds that the ordi-
nances of the city council granting street railway privileges are not
franchises but mere licenses. • In nearly all of the American cities
Some old railway company has occupied the principal streets with
tracks, and in many cases has not operated the same until some
new company offered competition, then the agents of the old com-
pany would preach to the signers of frontage that as the new-born
company was neither big nor rich it should not be allowed to live.
If the new ordinance was secured, the new company would be noti-
fied that its franchise would be “smashed,” and bogus injunctions
would then be brought to sink the new-born in a mire of lawyers'
fees and court costs, and every struggle of the new-born to exist
would be branded as blackmail to force the old company to buy out
the new. This condition of affairs naturally led to the new law of
Ohio and Massachusetts. The above data indicate that in the
European cities competition is fostered and monopoly discouraged,
but it is not so in the American cities, except in theory.
GENERAL LAWS, NOT INDIVIDUAL PRIVILEGES.
I have to petition your honorable body that the general ordi-
nances relating to street railway licenses be revised by the City Law
Department, and in which it shall be declared to be the public
policy of the city not to renew or extend any street railway “con-
tracts '' after the original terms of the same shall expire, but that
“licenses” may thereafter be issued under the general law by the
City Clerk, and subject to such general laws, to any person, firm
or corporation who may apply for the same to operate a street car,
as is done with hacks and other vehicles used by common carriers.
The movement of such cars on the public street to be under the
control and regulation of the Superintendent of Police. That a
license fee of . . . . . . . . dollars be charged for each car, which license
shall be posted in the car for which it is issued, and that one-half
of all license fees collected may be used by the Commissioner of
Public Works in keeping the tracks now laid, or to be laid, in
proper repair. The Police Department should also have authority
to require vestibuled cars for the protection of smokers and employes.
MUNicipAL ownBRSHIP.
The proposed general ordinance should distinguish between
municipal ownership and municipal regulation ; the former should
include everything attached to the public highway — track, poles,
wires and everything which the Police Department may desire to
change or remove at any time. The latter should relate to the
movable private property of the street car company, as the same
may be engaged in public service on the public street. I do not
think the City should attempt to own or operate the vehicles in
which the business of the common carrier is conducted. I am
informed that such a system is now in operation in Toronto and
with great success. In case a new company also desired to use the
cable or trolley-power of an old company, the running arrange-
ments should be made by the Superintendent of. Police, and the old
company should receive compensation from the new company on
a mileage basis. This complication will not long exist, however,
as several independent motors are nearly ready for the market, which
will do away with both cable and trolley.
ENCOURAGE COMPETITION.
In this general ordinance the construction of tracks can be
declared to be a local improvement, which, under our constitution
can be constructed like water and sewer mains, by special assess-
ment on the property benefited. If the majority of the owners of
the land fronting on the street where said tracks are proposed to be
constructed, petition for the construction of such tracks, the ordi-
nances for the same may be passed as in other special assessment
cases. Such a system would not only encourage competition and
discourage monopoly, but would remove the scandal which some-
times attaches to the railroad company when it receives an individual
street railway franchise. Such a system would also give double
protection to the majority of abutting land owners about whose
right to enjoin the old companies of this city are now much worried.
I. Tracks will not be constructed on any street unless the
majority ask for it.
2. If the majority ask for the tracks, it is not probable that the
old companies would influence the suppression of the improvement,
as it, and every other company, individual or real estate speculator,
would be entitled to run independent cars on such tracks, under the
general license ordinances above proposed.
A FOUR-CENT FARE.
In the European cities roads are built for the profits of regular
operation, but in the American cities the profits of construction are
the first consideration. Watered stocks, windy debentures and mort-
gage securities are issued to so large an amount that many American
companies cannot pay expenses and fixed charges, much less make
money, even with a five-cent fare. The company with which I am
connected has, for more than two years, carried passengers, under
unfavorable circumstances, for six rides for twenty-five cents, or a
nominal four-cent fare, and has paid all its operating expenses and
fixed charges.
FRANCHISES OR LICENSES.
The so-called sale of franchises to the highest bidder should not
be established, as in so doing none but the very rich could buy.
The principle of paying the cities a gross sum for a “supposed
franchise’’ is also bad, as it perpetuates the idea of a privileged
monopoly as against the license theory. Why should not the people
themselves, through whose territory the road runs, be entitled to
some of the direct benefits, as by a reduction of fare, improved
service, or other advantages which would naturally come out of
fostered competition ?
Respectfully submitted,
C. L. BONNEY,
Vice-President, Chicago General Railway.
5 II Tacoma Building, Chicago.
[ANNUAL REPORTs.]
CHICAGO GENERAL RAILWAY COMPANY,
Operating the Lines of the West and South Towns’ Street
Railway Company.
OFFICES AND POWER PLANT, THIRTIETH STREET ANB KEDZIE AVENUE.
C. L. Bonney, president of the Towns' Company, and
vice-president of the General Company, submitted the follow-
ing report to the stockholders at the annual meeting, held
January 14, 1895 : es
GENTLEMEN, -In the spring of 1890 the principals of the Towns'
Company applied to the West Side Street Railway Company to extend
the Ogden avenue horse cars south on Lawndale avenue from Ogden
avenue. This the president of the West Side Company agreed to do if
an ordinance could be secured. It passed the city council November
I 7, 1890, its acceptance is reported in the council proceedings of Feb-
ruary 16, 1891, and the rails were distributed along the street from
Ogden avenue to the C. B. & Q. station. The West Side Company then
concluded to extend the Ogden avenue line west to some car barns,
which have since been built, and not south on Lawndale avenue, as
agreed, and the rails were thereupon removed. Having thus been
denied necessary accommodations by the old company, the Towns’ Com-
pany was organized August 22, 1891, to build the Lawndale avenue and
Twenty-second street lines, the franchise for which was secured Febru-
ary 8, 1892. Construction on the Twenty-second street road was com-
menced in September, 1892, and five miles of track was laid within
sixty days. The franchise for the Twenty-fifth street, Rockwell street,
Kedzie avenue and Homan avenue lines was obtained April 5, 1893.
The unscrupulous manipulation of the injunction mill, under the direc-
tion of the West Side Company, was commenced in December, 1892.
The first injunction issued tied up the entire Twenty-second street prop-
erty, and at irregular intervals new suits were started until construction
of every line was paralyzed and the sale of our securities nearly
destroyed. Our frontage petitions were stolen and we were then en-
joined without notice or trial under our present system of grinding out
justice on an affidavit, in which the maker stated, on information and
2
belief, that we did not have such petitions. After our property was
impounded by the majesty of the law in the manner described, applica-
tion was then made to the Commissioner of Public Works to remove
our partly constructed road from the street, the reason assigned being
that we failed to properly complete the same. On April 24, 1893, the
undersigned called on the president of the West Chicago Company
regarding the construction of some crossings, and was then informed by
that official that he would not permit us to operate in the territory of
his Blue Island avenue and Halsted street cable lines, and that he would
smash our franchise before he got through with us. His manipulation
of the injunction mill was intended to starve us to death before blind-
folded and misused justice could travel through the labyrinths of a con-
jured litigation. The principals of the Towns' Company, however,
being of the common walks of life and not being accustomed to the use
of luxuries, the starving process was not as rapid as had been calculated
by the extravagant purchaser of telescopes and European paintings.
We are to be congratulated that in the three years we have been defend-
ing ourselves from the attacks of a competitor in business who, through
the courts, would ruin our property, we have not only been able to
exist but to liquidate the attorneys’ fees, court costs, masters’ fees, print-
ing and other expenses, and thus it is said we have obtained “in the law,
right and justice freely and without being obliged to purchase it, com-
pletely and without denial, promptly and without delay.”
June 23, 1893, the first decision in the company’s favor was secured,
which dissolved the injunction on Twenty-second street from Craw-
ford avenue to Lincoln street. The line was put in operation the next
morning with two old horse cars which were rented from the Chicago
City Company. These horse cars were replaced by two electric cars,
November 22, 1893. The second victory was obtained March 6, 1894,
at which time the injunction on Twenty-second, between Lincoln street
and May street, was dissolved and the electric cars were extended to the
end of the constructed track at Dale place. On May 5, 1894, the third
victory was secured by release of the injunction on Twenty-second street
from May street across the river to the South Side. The favorable
opinion of the Appellate Court in the Tibbett's case was filed May 28,
1894, and which was appealed to the Supreme Court. In November,
another victory was obtained in the Supreme Court by an opinion which
affirmed the ruling of the Appellate Court. November 27, 1894, the
injunction which had tied up the Kedzie avenue road for more than a
year, and which prevented the company from reaching its new power
plant, was released, and the contempt proceedings which had been con-
jured up to prejudice the court against the company was dismissed at the
.3
same time. December 7, 1894, the injunction which had tied up the
Twenty-fifth street property was dissolved, which made eight continuous
victories secured for the Towns' Company, and removed the last legal
obstacle which had been created to embarrass us.
A combination to ruin a competitor's business, under the laws of
Illinois, is not only a criminal conspiracy, but subjects the parties
involved to individual legal liability. It is estimated that the loss of the
World's Fair business, which was caused by these injunctions, resulted
in a damage of not less than $600, ooo. The necessary papers are now
being prepared by the attorneys for the company to recover this amount
from the individuals who took part in this conspiracy.
To the eight legal victories over the West Side Company, enumer-
ated above, may be added the success in securing proper railroad cross-
ings over its Blue Island avenue and Halsted street cable lines and the
crossings over its horse railways on Western avenue, Leavitt street and
Robey street.
Several times during the last three years this company has offered
to arrange with the Chicago City Company for the operation of the cars
of the Towns' Company on the East Twenty-second street tracks of the
South Side Company to Indiana avenue, and on Clark street to Wash-
ington street, which attempted arrangement each time failed with the
statement by the officials of the Chicago City Railway Company that it
had made a contract with the West Side Company which would prevent
it from making any interchange of business with us except by the con-
sent of the president of the West Side Company. This attitude of the
Chicago City Company is verified by a statement of the General Counsel
of the City Railway, published in 77.e Inter Ocean of December 9 last,
in which he states that his company is on friendly terms with the West
Chicago Street Railway Company, and that “we would not do anything
against the interests of that road.” This statement having been made
in answer to a question as to whether his company had given us any
assistance or not. It having thus appeared certain that the guardianship
of the West Side Company over the South Side Company would prevent
any interchange of business between the Towns' Company and either
member of the old special charter combine, the Chicago General Com-
pany placed its right-of-way agents in South Side territory to construct
lines to the Illinois Central Railroad on Twenty-second street, and by
several routes to the Union Stock Yards, and also opened up considera-
tion of an independent down-town connection and loop.
The Towns’ Company has taken an active part in the agitation for a
better system of license regulations for all surface lines of Chicago, with
excellent results, March 18, 1894, a proposition was sent to the mayor
4
and aldermen, suggesting the passage of a general ordinance which ?
would require all surface companies to sell six tickets for 25 cents; also
that the general ordinance relating to street car licenses should be
amended, changing the license from $50 per car to one per cent of the
gross receipts. Continued complaints of the miserable system of trans-
fers now existing on the West Side led the mayor to appoint a special
committee of aldermen to consider the subject, and on October 15,
1894, a communication was sent to this committee suggesting that the
regulation of transfers should be made a condition of the annual street
car license. This communication was referred to Assistant Corporation
Counsel Jesse Barton, and his opinion approving the same is reported
to the council in the proceedings of January 3, 1895. In his opinion
Mr. Barton calls attention to the fact that the franchises on Madison
street to Western avenue, Lake street, Randolph street and Milwaukee
avenue, were originally granted to the South Side Company with the
rights of running on Cottage Grove avenue, State street, Clark street
and other streets, and with a provision that “the rate of fare for any
distance should not exceed 5 cents.” When it is considered that this
provision was incorporated into the ninety-nine year franchises of the
special charter combine, and that the right to amend the special charter
was cut off by the constitution of 1870, it seems impossible to under-
stand that any test case which can be arranged to try the question
should have any other result than a decision that it is not now possible for
either the legislature or the city council to release either of the old com-
panies from giving to the people the right to a continuous ride from
Thirty-first street to Western avenue.
The new power plant appears for itself. The foundations were
started on September 4, 1894, and the regular operation of the road
from the new power plant commenced January 3, 1895, so that in less
than four months the plans were prepared and work completed. The
principles followed in the construction of this plant were absence of
ornamental or useless material. Durability, convenience and econom-
ical operation, is what was attempted to be secured. Strange as it may
seem, the site of the new power plant is within the five-mile radius of
the city hall and has been within the city limits twenty-five years, but a
street car had not been within a mile and a half of the site of this
power plant until this company put its cars in operation.
The new equipment speaks for itself and is without exception the
finest street railway train ever put in service.
This company was the first to operate a trolley car within the west
division of Chicago ; it is the first to operate a storage battery car
within the city limits of Chicago ; it is the first of the Chicago com-
5 . . . "
panies, to adopt a vestibuled cab for the protection of the motormen,
conductors and smokers ; it is the first of the Chicago companies to
adopt the electric brake and it will be the first to put an electric train in
service in which the movement of every car is controlled by the motor-
man in the front cab. - ** ...”
The following is a trial balance of the bond account, the proceeds
of which were used in the construction department:
RECEIPTS. DISBURSEMENTS. r
From the sale of five hundred - Interest . . . . . . . . . . . . . . . . . . . $13,473.73
6 per cent gold bonds . . . . . $448,880.02 | Legal expenses. . . . . . . . . . . . . I5,818.58
Office expenses. . . . . . . . . . . . . I2, 49 I. I7
Operating expenses. . . . . . . . . 4,443.50
Equipment. . . . . . . . . . . . . . . . . 58,034. I4
Track . . . . . . . . . . . . . . . . . . . . . 209,530.46
Lawndale Ave. Power Plant. 22,997.23
Kedzie Ave. Power Plant. . . . 72,566.35
Contingent liabilities. . . . . . . . 30, OOO.oO ,
Surplus. . . . . . . . . . . . . . . . . . . . 9,524.86
$448,88o.o.2
STATEMENT OF OPERATING ACCOUNT,
May 1, 1894, to December 31, 1894.
RECEIPTS.
Cash Fares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $27,537. 55
Ticket Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I3, OIO. OO
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320. 28
$40,867.83
Suspense Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,679. O8
w *-- $45,546.91
DISBURSEM ENTS
Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,281, 53
Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I7,327.2 I
General Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,543. 52
Suspense Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,714.6I
$27,866.87
Cash on hand on account of fixed charges. . . . . . . . . . . . . . . . . 8,750. oo
Net surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,930. O4
——— $45,546,91
Net surplus of construction department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,524.86
& “ “ operating " . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,930. O4
Total net surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,454. 9o
r
{
- 6.
{ *
*
.*
Total miles run........ . . . . . . . . . . . . . . . .* * * * * * * * * > *, *, e s ∈ e º s m e º e º a tº * * * * * * * * I93,397
Passengers carried..... . . . . . . . . . . . . . . . . . . . . . . . • * g º º º A & tº a tº e s s e s e e s sº e º s e is 847,402
Number of passengers carried per car mile . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.37
Gross cost of operating, per car mile............................... Cents I+4+
Number of cars operated in May and June . . . . . . . . . . . . . , - - - - - - - - - - - - - - - - - 5
ſ: { § { “ July to December. . . . . . . . . . . . . . . . . . . . . . . . . . . * 7
Miles of single track operated in May and June. . . . . . . . . . . . . . . . . . . . . . . . . 6
& ſ { { § { “ July to November. . . . . . . . . . . . . . . . . . . . . . 8
{ % & 4 £ tº ‘‘ November and December . . . . . . . . . . . . . . I6
Miles of streets occupied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IO
All of which is within 5% miles of the city hall.
The lines of the Towns' Company were leased to the General Com-
pany May 1, 1894.
$500, ooo 6 per cent gold bonds issued by the Towns' Company, and
pays rent coupons of $30,500 on the Ist of May and November of
each year.
The four coupons payable in 1894 and 1895, and the May coupons
of 1896, 1897, 1898, 1899 and 190o were canceled by a vote of the
stockholders.
The outstanding coupons are as follows: d i
First coupon due, No. 6, on November 1, 1896, equal to dividend of 6 per cent.
Second f : No. 8, § { 1897, tº º § { § {
Third t t No. Io, 1898, t t § { § {
Fourth tº 4 No. 12, ſt { I899, § { 6 & § tº
Fifth { { 9. I4, t iſ I900, § { § { { {
After 'I 3; two coupons each year, equal to dividend of I2 per cent.
The directors elected were : L. E. McGann, J. H. Whitbeck, C. L.
Bonney, D. B. Scully, J. P. Black, Lawton C. Bonney, Lyman M.
Paine.
The Officers elected were : -
L. E. MCGANN, President and General Manager.
C. L. Bonn Ey, Vice-President.
LAWTON C. Bonn Ey, Secretary and Treasurer.
// ?/
The General Company assumes payment of the