Chicago v. the City of Joliet.

Decision Date30 September 1875
Citation79 Ill. 25,1875 WL 8565
PartiesCHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO.v.THE CITY OF JOLIET.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

On the 10th day of June, 1834, James B. Campbell laid out the town of Juliet, upon land then situate in the county of Cook. A plat thereof was made and recorded. There was a block of land on the plat marked “public ground.”

On the 16th of February, 1835, A. W. Bowen laid out the adjoining town of East Juliet. A plat thereof was made and recorded. On this plat there was also a space marked “public ground.” In fact, these parcels in the two plats marked ““public ground” were side by side, separated only by Chicago street.

January 12, 1836, the Act to establish the county of Will became a law. By its second section it provided:

Sec. 2. The permanent seat of justice of said county shall be at the village of Juliet, and the public buildings thereof shall be erected on the public square, recorded in the plat of said town as public ground, and adjoining to section fifteen.”

March 1, 1837, the town of Juliet was incorporated. The act authorized the corporation “to enjoy all the rights and privileges which are conferred upon towns incorporated under the act entitled ‘An act to incorporate the inhabitants of such towns as may wish to be incorporated,’ approved February 12, 1831.” Neither of these acts conferred upon the trustees of the town any control over public grounds, other than public streets and highways; and the one last mentioned provided, that, upon the dissolution of any town corporation, “all persons having funds belonging to such corporation in their hands, shall pay the same into the county treasury; and all bonds and securities taken for the same by such corporation, shall vest in the county commissioners, for the use of such county.” January 27, 1841, the act incorporating the town of Juliet, above mentioned, was repealed, and the then existing board of trustees were “authorized to settle all the accounts, debts or demands, either in favor of or against the corporation of the said town of Juliet.” It further declared, that, “for this purpose and no other, they shall be capable of suing and being sued, as under the provisions of the act hereby repealed.”

February 26, 1845, the name of the town “Juliet” was changed to “Joliet,” and it was declared that the additions to said town should thereafter be designated as “additions to Joliet.”

In 1846 and 1847, the present court house of Will county was erected by the authorities of the county on that part of the “public ground” which was embraced in the plat made by Campbell. Previous to that time, the court house stood on that part of the “public ground” embraced in Bowen's plat, being that portion east of Chicago street.

On the 27th day of February, 1847, the legislature created the Rock Island and LaSalle Railroad Company, with powers, among others, to construct a railroad from Rock Island to the Illinois river, “and to locate and construct the same on such line, course or way as may be designated or selected by the directors of said corporation, whereon to construct and make the same.” February 7, 1851, the company were authorized to construct their projected railroad from its then present termination, by way of Ottawa and Joliet, to the city of Chicago, under the same powers and privileges as above. By the same act, the name of the company was changed to “The Chicago and Rock Island Railroad Company.”

In the spring and summer of 1851, the line of the road was established by the directors of the company through the town of Joliet, and thence to Chicago.

In compliance with the popular wish. the line was located across this “public ground,” and within about twenty feet of the court house.

Afterward, November 6, 1851, the company submitted to the board of supervisors of Will county a petition, asking a grant of the right of way for the construction of the Chicago and Rock Island Railroad, as then located by the company “over the public square in Joliet, in said county.”

The petition was granted, and on the 8th day of November, 1851, the company and the board, by its chairman, entered into a formal written agreement, whereby the right of way across the public square was granted, upon certain terms and conditions, one of which being, that the company should inclose a portion of the public square with a good and suitable fence, to correspond with such as the people of the county might inclose the remaining part of the public square with.

The work of constructing the road in the city was commenced in the winter and spring of 1852. The first regular train arrived and passed over the “public ground” July 4, 1852. At this time, the “public ground” was open and unfenced, and never had been fenced. The principal business of the town was from two to six blocks north and north-west from the railroad.

On the 22d of June, 1852, the city of Joliet was incorporated, and on the 7th of August, 1852, the city government was organized.

Reference has before been made to the act incorporating the town of Juliet, in 1837, and its repeal in 1841. From the date of this repeal until the incorporation of the city, this community did not have any municipal organization.

At a meeting of the city council of the city of Joliet, held on the 3d day of January, 1853, the Chicago and Rock Island Railroad Company presented a petition, asking “for certain privileges, in order that they may locate their depot in the city of Joliet, on a part of blocks 2, 3, 19 and 20, in school section to Joliet.” The record of the city council recites, that an “ordinance was adopted in accordance with this petition.” Then follows the ordinance, which vacates certain alleys and parts of alleys, and authorizes the use by the company of portions of certain streets, for railroad purposes. It appears, that these privileges were available to the company only with the use of its right of way over the “public ground.”

In September?? 1863, the board of supervisors of Will county set about the building of an iron fence, with a stone foundation, around the public square, and notified the railroad company to build their portion of it, which they had agreed to build in consideration of the grant to them, in November, 1851, by the board of supervisors of Will county, of the right of way across the square. The company, afterward, in the fall of 1863, built their portion of the fence, to the satisfaction of the board of supervisors. Their whole expenditure about the square, including the cattle-guards, which they had also agreed to build, and filling in with earth a portion of the square, at the request of the board of supervisors, amounted to $4160.91.

On the 20th of August, 1866, the Chicago and Rock Island Railroad Company consolidated its property and franchises with those of the Chicago, Rock Island and Pacific Railroad Company, of Iowa, under the name of the latter.

From 1854 until about a year before the commencement of this suit, the city of Joliet levied special taxes for local improvements upon this “public ground,” as the property of the county, and these taxes were paid by the county.

In September, 1872, the city council passed an ordinance declaring the occupation of the public square and the operation of the railroad where its track crosses Chicago street, and on and along the curved line between Chicago and Scott streets, “shall be deemed and taken as a public nuisance,” and prohibiting such use and imposing penalties therefor.

On the 1st of November, 1872, the city of Joliet filed this bill. In the original bill, the board of supervisors was joined as a party complainant. On the 25th of January, 1873, the amended bill was filed, alleging that the action of the city in so joining the board had been repudiated by that body, and making said board a party defendant.

In this amended bill it is substantially alleged, that the company located and constructed its railway across the “public ground” mentioned, without any sufficient authority; that by reason of the noise and confusion produced by the running of trains over the public grounds?? the public business of the courts in the court house is very greatly disturbed and interrupted; that though the operation of the railroad was for some years the cause of but little annoyance, because of the sparseness of the population and the unimproved condition of the property along the line, it has now, by reason of the growth of that portion of the town, the erection of buildings near the track, and the increase of business generally near the road, become highly dangerous to persons and property; that it has thus become a public nuisance; that complainant had passed an ordinance declaring it such, and prohibiting the running of trains thereon; that the ordinance had been disregarded.

The prayer is for a decree restraining the operation of the railroad over the ““public ground” and over its crossings of certain streets.

The company answered, setting up its rights under its charters; the grant of the right of way over the “public grounds” by the board of supervisors; the action of the city after it became incorporated, vacating alleys and granting special privileges in the streets, for the purpose of enabling the company to build its depot in close proximity to said “grounds,” its continuous possession and enjoyment for more than twenty years, an estoppel in pais, right by prescription, and the Statute of Limitations; and denying that the grounds were ever dedicated to the public use as public grounds of the city of Joliet.

The board of supervisors answered, alleging that the county buildings were erected on these public grounds more than thirty years prior to the filing of the bill, by legislative authority; that the grounds had always been used and enjoyed by the county of Will, as the owner thereof; that they had...

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