Beers v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 01 August 1905
• Docket Number: 1,143.
• Citation: 141 F. 957
• Parties: BEERS v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

141 F. 957

BEERS v. CHICAGO, M. & ST. P. RY. CO.

No. 1,143.

United States Court of Appeals, Seventh Circuit.

August 1, 1905

Frank Crozier, for appellant.

Chas B. Keeler, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge, delivered the opinion.

The bill in the Circuit Court was to enjoin the maintenance by appellee of its elevated railway tracks in a street in front of the appellant's lots, and to compel the removal of the tracks thus elevated. The bill asks, in addition, that appellee may be decreed to pay to appellant the damages sustained by reason of the trespass on his lots, and render reasonable compensation for the use thereof, and for other relief. The bill is predicated upon the theory that the street, occupied by appellee's elevated tracks, is a public street, and that though the occupation was under an ordinance regularly passed by the Council of the City of Chicago, the City of Chicago was wholly without power to devote such street to the purposes of track elevation wherefore, the appellant, an abutter on the street, dependent upon such street for ingress and egress, and cut off from the same by the elevation in question, is entitled to an order removing the embankment, or (as stated in oral argument at bar) to an ascertainment in equity of the damages sustained and an order for their payment.

Among other defenses to the bill thus stated, the appellee asserts that appellant has been guilty of laches. The bill was dismissed for want of equity by the Circuit Court.

Appellant is the owner of lots fronting on Bloomingdale road, occupied since 1872 by the tracks of the appellee's railroad. Under an ordinance of the city, of February 21st, 1898 requiring an elevation of appellee's tracks, work was begun in March, 1898, and finished during that year. The work thus ordered, carried appellee's elevation in front of, and beyond appellant's lots; but in front of appellant's lots, the elevation was already descending to the surface, so that it constituted an embankment variously estimated as averaging from two and one-half feet, to eight feet in height, on either side of the base of which in the street was width sufficient to afford ingress to, and egress from, appellant's lots.

January 13th, 1902, the city passed another ordinance, ordering the extension of the elevation westward. The effect of this ordinance was to raise the earth embankment opposite appellant's lots to the standard height of twelve feet and to extend the base of the embankment to the full width of the street. Both this ordinance, and the preceding one, provided that the side slopes and lateral dimensions of the embankment should be determined by the natural angle of repose of the material used' and there is no averment or evidence, that in extending the width of the base of the embankment, this natural angle was exceeded. Work under this...