Bass v. Metropolitan West Side El. R. Co.

• Decision Date: 07 April 1897
• Docket Number: 405.
• Citation: 82 F. 857
• Parties: BASS v. METROPOLITAN WEST SIDE EL. R. CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

82 F. 857

BASS v. METROPOLITAN WEST SIDE EL. R. CO. et al.

No. 405.

United States Court of Appeals, Seventh Circuit.

April 7, 1897

occupation and use for railroad purposes of real estate in Chicago, between Van Buren and Jackson streets, fronting to the east on Market street, and extending to the Chicago river on the west, described as lot 10 in the subdivision of lots 2, 3, and 4 in block 84, School Section Addition to Chicago. The essential facts, as shown by the bill, answer, and proofs, are these:

In 1888, the appellant, Clara F. Bass, leased the premises to John P. Altgeld for the term of 90 years, at an annual rental of $2,500 for the first 10 years, and thereafter of 5 per centum of the 'fair salable value of the leased premises exclusive of the buildings,' to be ascertained by appraisement on July 1, 1898, and every succeeding tenth year, but at no time to be less than $2,750 per annum, the tenant paying all taxes, rates, charges, and assessments, and maintaining in good repair buildings and improvements. Of the numerous provisions and covenants in the lease, binding upon or for the benefit of the respective parties, their heirs representatives, or assigns, those especially pertinent to the present discussion are, in substance, the following: The tenant shall forthwith erect on the premises 'a good and substantial building of brick, stone, and such other material as is commonly used on the outside and in the inside of first-class buildings, the foundations and walls to be sufficiently strong to support a building eight stories high and the building to be at least seven full stories in height above the grade of the street, and to cost not less than the sum of $50,000, according to designs, plans, and specifications, to be approved in writing by the lessor, * * * and in accordance with the building ordinances of the city of Chicago, covering the entire premises aforesaid. ' The tenant shall keep the building insured for three-fourths of the value, and, in case of destruction or damage by fire 'shall repair the same upon designs, plans, and specifications to be approved by the party of the first part, * * * so that the building shall entirely cover said premises, and shall be at least seven full stories in height above the grade of the street, also of such materials and with such foundations and walls as shall be approved by said party of the first part, * * * to cost not less than $35,000, exclusive of foundations, and have the same rebuilt and ready for occupancy within eighteen months from such loss and destruction'; and, in case of failure to rebuild, all insurance money shall belong to the lessor. In the event of the determination of the lease before the expiration of the term for breach of any covenant herein, the building, fixtures, and improvements on the premises shall be forfeited to and become the property of the owner of the fee, 'without any compensation therefor' to the tenant. At the end of the term of 90 years the owner of the fee shall either purchase the building, fixtures, and improvements on the premises, paying sixty per cent. of their cash value, as determined by an appraisement provided for, or make a new lease for forty years on the terms of the original lease, except that, in lieu of the clause for the purchase of building, it shall be provided that, if the lease expires by lapse of time or otherwise, the building or buildings, with all improvements and fixtures then on the premises, shall become and be the property of the owner of the fee, without rendering any compensation therefor. The tenant shall at no time permit any part of the premises to be occupied adversely to the interest or title of the lessor. No assignment of the lease shall be made without giving the owner of the fee the option to buy the leasehold interest at the price of the proposed assignment. 'In order to secure the payment of all rent due, accruing, or to accrue under this lease, and also all sums advanced or paid for taxes, duties, rates, charges, assessments, or impositions as aforesaid, or due upon any other account whatever, and for which said lessor, her heirs, executors, administrators, or assigns, may be entitled to repayment hereunder, she, he, or they shall have at all times a first and valid lien upon all improvements and tenements, and the materials thereof, which may be at any time upon the said leased premises,' 'meaning and intending hereby to give the party of the first part, her heirs, executors, administrators, and assigns, a valid and first lien upon any and all buildings, improvements, and other property on said premises belonging to the party of the second part, his heirs, executors, administrators, and assigns, as security for the payment of said rent in the manner aforesaid, anything hereinbefore contained to the contrary notwithstanding.' A seven-story brick building was accordingly erected, at a cost of more than $50,000, and covering the entire lot except a strip, five or six feet wide, next to the river.

In 1894, the appellee, the Metropolitan Elevated Railroad Company, a corporation organized to operate an elevated railroad in Chicago, acquired the premises adjacent to the appellant's lot on the north, extending from Market street to the river, and, having removed existing buildings, constructed thereon an elevated railroad, upon which its trains run, and for some months prior to the filing of the bill had been running, in their passage to and from the western road in process of construction in the city, the Metropolitan Company found it necessary to cut away the northeast corner of the appellant's building above the first story thereof, and, in order to accomplish that end without resort to proceedings for condemnation under the statute of the state, procured an assignment to itself of the leasehold estate; Altgeld having assigned in 1889 to John J. Mitchell, who on August 29, 1895, assigned to the Metropolitan Company. These assignments were made with the consent of the appellant. Upon coming into possession, and before the filing of the bill, the Metropolitan Company proceeded to cut away the northeast corner of the building above the first story, the portion removed being in the form of a prism, with three plane faces extending from the top of the building, the lines of section of the walls being 13.4 feet on the north and 12.4 feet on the east from the northeast corner of the building. A freight elevator which had been in that corner was removed, and re-erected next to the north wall, at a point halfway from Market street to the river. According to the plans in evidence, no supporting columns have been or will be placed upon the land of the appellant, but the portion of the first story not cut down will be crossed by a girder upon which will rest the track connecting the road of the Metropolitan Company on the north side of the premises with the road of the Union Consolidated Elevated Railroad Company in front of the premises on Market street. The Metropolitan Company is insolvent, and its road is in the hands of a receiver, the respondent and appellee Dickson MacAllister.

The prayer of the bill is that the appellee be enjoined from placing the proposed structure across the premises, and from running trains thereon within the lines of the lot; that the receiver be required to perform the covenants of the lease, to restore the building to the condition in which it was before the cutting off of the corner, and thereafter to maintain the same in accordance with the terms of the lease; and that, in default thereof, the lease be forfeited, and the premises surrendered to the appellant.

It is shown that the Metropolitan Company paid Mitchell for the leasehold $84,000, and, in addition, expended upon the property, for necessary improvements and repairs, more than $10,000, and that in the present condition the building is a better security for the payment of rent and the performance of other covenants of the lease than it was before the Metropolitan Company took possession. The constitution of Illinois (article 2, Sec. 13) provides 'that private property shall not be taken or damaged for public use without just compensation,' which, 'when not made by the state, shall be ascertained by a jury, as shall be prescribed by law'; and by article 11, Sec. 14, it is provided 'The right of trial by jury shall be inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.' Section 2 of an act 'to provide for the exercise of the right of eminent domain' (Rev. St. Ill. c. 47) requires the railroad company which proposes to take property to file in court 'a petition setting forth, by reference, his or their authority, in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested therein as owners or otherwise, as appearing of record, if known, or if not known stating that fact, and praying such judge to cause the compensation to be paid to the owner to be...