Chicago, R.I.&P. Ry. Co. v. People ex rel. Dailey

• Citation: 78 N.E. 790,222 Ill. 427
• Court: Supreme Court of Illinois
• Decision Date: 23 October 1906
• Parties: CHICAGO, R. I. & P. RY. CO. et al. v. PEOPLE ex rel. DAILEY, State's Atty., et al.

222 Ill. 427

78 N.E. 790

CHICAGO, R. I. & P. RY. CO. et al.

v.PEOPLE ex rel. DAILEY, State's Atty., et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Appellate Court, Second District.

Proceedings by the people, on the relation of John Dailey, state's attorney, and others, against the Chicago, Rock Island & Pacific Railway Company and another. From a decree of the Appellate Court, affirming the decree of the trial court rendered in favor of the relators, defendants appeal. Affirmed.Stevens & Horton, for appellants.

Robert Scholes, State's Atty., Sheen & Miller, and Henry Mansfield, for appellees.

This cause was brought to this court by appeal from the Appellate Court for the Second district to reverse the judgment of that court affirming the decree of the lower court. The statement of the Appellate Court, which we adopt, fairly sets out the facts, and is substantially as follows:

‘This is an appeal from a decree of the circuit court of Peoria county declaring void a certain ordinance passed by the city council of the city of Peoria in November, 1898, and enjoining appellants from exercising any rights or privileges under it. The ordinance gave permission to the Chicago, Rock Island & Pacific Railway Company and the Rock Island & Peoria Railway Company, their successors and assigns, for a period not to exceed 50 years, in consideration of the annual payment of $500, ‘to rearrange and reconstruct their existing tracks, and to construct additional tracks, spurs, sidings, and switches in and upon Water street and the public grounds lying between Water street and the Illinois river and between Fayette street produced on the east and the land owned by said companies at the foot of Fulton street produced on the west,’ according to plans shown by a plat attached to the ordinance. The ordinance also authorized said companies ‘to construct and maintain upon said public grounds, and use for the purpose of a passenger depot, a permanent stone and brick building, with such necessary and convenient sheds, platforms, and tracks in connection therewith, as the said companies, their successors and assigns, shall deem necessary.’ The ground referred to lies between the front of blocks 1, 2, 3, and 4, in the city of Peoria, and the Illinois river. It is of irregular width, varying from 200 to 250 feet, and is 1,200 feet long. Said blocks front on Water street, which is a public street and extends in a northeasterly and southwesterly direction along, and parallel to, the river front. For many years prior to the passage of the ordinance 110 feet of the space between the river front and the blocks mentioned, and next to said blocks, had been used and traveled as a street. The remainder of the space was, it appears, not used for travel along Water street, but was used as a boat landing or levee, and, as alleged, as a kind of storage or ‘dumping ground.’ Several years before the passage of the ordinance in question, by permission of the city, certain railroad tracks were laid in Water street by the appellants upon and along the southerly side of the 110 feet used for street travel, but these tracks are not involved in this litigation. The bill is filed in the name of the people, by the state's attorney, and a number of individuals, some of whom are owners of property fronting on Water street and some of whom are engaged in river traffic as common carriers, join as complainants, and allege that their property and business are injured and damaged by the use and occupation of the land in dispute by appellants. It does not directly aver that all the territory within the limits mentioned is Water street. The averments are that it was held and used and recognized by the city of Peoria ‘as a public street and public boat landing, public harbor and public wharf or public levee.’ The appellants by their answer admit ‘that all of said ground lying between the present northerly line of Water street, as indicated by the curbing and the river, was, and is, a part of Water street’; ‘deny that there was any limit to the width of Water street except such as was contained between what is at the present time the northwesterly line of Water street and the river, but its depth was limited between the boundaries aforesaid’; and ‘deny that any of the land ever was held by the county commissioners or the county of Peoria or the city of Peoria as and for a boat landing, and that such land was, is, and ever has been, a part of Water street as originally laid out and platted.’ The answer further denies that the portion of Water street next to the river has been used exclusively as a boat landing, and denies that there ever has been any limitation to the width of Water street as cared for by the city of Peoria, or that there ever has been any recognition of the rights of the river front as a landing place or levee, except by sufferance, or that any use thereof has in any manner changed or tended to change the character of the ground, or make it anything but a street owned by the city of Peoria, and under the control of the city authorities of the city of Peoria to the same extent as any and all other streets of said city.

‘After replication filed, the cause was referred to the master in chancery to take the testimony and report his conclusions of both law and fact. The master found and reported that the appellants had taken possession of the strip of ground described in the ordinance, had rearranged and reconstructed their tracks, built new tracks, sidings, and switches, ‘and are now using said ground as a railroad yard, for switching, unloading, loading, and the storing of freight cars.’ He further found the ground described in the ordinance is a part of Water street; that ‘Water street contains all the ground between the front row of blocks and the river or lake, and was granted to the town of Peoria and dedicated to the county commissioners, who laid out the town for public purposes.’ He also finds that all the streets of Peoria were laid out 100 feet in width except Water street, which was extended to the river, and that ‘the increase in the width of it by the commissioners clearly indicated their intention to make it serve the purpose of a public landing in addition to its ordinary uses as a street; that the effect of the ordinance was to give appellants, without a petition of the owners of more than one-half of the land fronting on the portion of the street sought to be taken, the exclusive use and control of the portion of Water street embraced within its terms for a period of 50 years, and that the city of Peoria had no power to dispose of the use, control, and occupancy of any portion of Water street, and the public landing which is a part of the same, as was attempted by the ordinances. He therefore finds, and so reports, that the ordinance is void, and recommends that a judgment of ouster be rendered against appellants.’ Appellants filed objections to the report before the master, who overruled them, and the same objections were filed as exceptions in the circuit court, where they were by the court overruled and the report of the master approved in all respects as to the recommendation that a judgment of ouster be entered. The court found that the findings of fact reported by the master were sustained by the pleadings and proofs, and decreed the ordinance to be illegal and void; that appellants acquired no legal rights by virtue of it, and that the exercise of their pretended rights under it created a public nuisance and a purpresture upon the premises described and granted in and by said ordinance, and perpetually enjoined the exercise of any rights or powers under or by virtue of it.'CARTER, J. (after stating the facts).

The contention of appellants that the state's attorney is a mere nominal party to this proceeding is not supported by the record. They filed a demurrer to the original bill in the trial court raising this point, and on a hearing the court overruled the demurrer. There is nothing before us to justify appellants' claim that the state's attorney is lending the use of his name and official character at the request of outside parties. Holding, as we do, that the state's attorney is the actual, and not a mere nominal, party to the suit, we do not find it necessary to discuss the question whether or not private individuals joined with him could alone maintain this action.

Appellants very earnestly insist that the Appellate Court was wrong in holding that they were bound by their answer, wherein they aver that the land in controversy is, and ever has been, a part of Water street as originally laid out and platted, ‘or that there has ever been any recognition of the rights of the river front as a landing place or levee except by sufferance.’ They made no objection or exception to the finding of the master that said premises were a part of said street, nor did they, by their assignment of errors, in any way raise this question. If they had intended to claim that the premises were not a part of the street, they certainly ignored in their answer the familiar rule of pleading that a defendant is bound ‘to apprise the plaintiff, by his answer, of the nature of the case he intends to set up-and that in a clear and unambiguous manner-and that a defendant cannot avail himself of any matter of defense which is not stated in his answer, even though it should appear in his evidence.’ 1 Daniell's Ch. Pr. (6th Am. Ed.) 712; Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232,55 Am. Rep. 883;Home Ins. Co. v. Myer, 93 Ill. 271;Crone v. Crone, 180 Ill. 599, 54 N. E. 605;Jewett v. Sweet, 178 Ill. 96, 52 N. E. 962;Dorman v. Dorman, 187 Ill. 154, 58 N. E. 235,79 Am. St. Rep. 210;Kehm v. Mott, 187 Ill. 519, 58 N. E. 467;Mehan v. Mehan, 203 Ill. 180, 67 N. E. 770;Millard v. Millard, 221 Ill. 86, 77 N. E. 595; 1 Ency. of Pl. & Pr. 927. Had they desired to make the defense which they are now raising, they should have excepted to the...