Bucklen v. City of Chicago

• Decision Date: 11 May 1897
• Citation: 46 N.E. 1073,166 Ill. 451
• Parties: BUCKLEN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

166 Ill. 451

46 N.E. 1073

BUCKLEN et al.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

May 11, 1897.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Suit by Herbert E. Bucklen and others against the city of Chicago and another. From an order dismissing bill as to defendant city, complainants appeal. Dismissed.

Hamline, Scott & Lord, for appellants.

W. G. Beale and Geo. A. Du Puy, for appellee.

WILKIN, J.

On April 21, 1893, appellants, with others, as owners of lots fronting on Lake Park, in Chicago, filed their bill in the circuit court of Cook county against the Illinois Central Railroad Company, praying that it be enjoined from using the park for railroad purposes, obstructing the view and access of complainants as such abutting owners. Prior to December 6, 1895, the bill was amended, and a supplemental bill filed, and on that day a second supplemental bill, making the city of Chicago a joint defendant, was filed. After reciting the contents of the bill as amended and former supplemental bill, the filing of an answer by defendant, and replication by the complainants, and reference of the cause to the master before whom it was then pending to take the evidence, this second supplemental bill charged that the railroad company had on October 21, 1895, procured the city council of the city of Chicago to pass an ordinance, setting the same forth at length. This ordinance purports to authorize the railroad company to place the structures upon Lake Park alleged by complainants, to obstruct and interfere with their rights. After stating many objections to the validity of the ordinance, it is alleged that the railroad company has declared its intention to, and will unless enjoined, avail itself of the grants, licenses, and privileges by said ordinance purported to be granted. The prayer is: ‘That said Illinois Central Railroad Company and the city of Chicago, who are made defendants, * * * may be required to make full, true, and direct answers, * * * and that said Illinois Central Railroad Company, its officers, agents, attorneys, and employés or licensees, and all others holding or acting under said Illinois Central Railroad Company, may be enjoined and restrained from entering upon or occupying or in any manner constructing anything upon the public grounds known as ‘Lake Park,’ north of the north line of block 23, in fractional section 15. * * * And that the said ordinance of October 21, 1895, and all licenses, permits, or contracts made in pursuance thereof, in so far as it or they grant to the Illinois Central Railroad Company any authority to occupy or use or deposit dirt, or construct or maintain walls or other structures on said public grounds west of the west line of said right of way of said defendant railroad, as defined by said decree, etc., or on said public grounds, or in the water next west thereof, and east of the east line of said right of way, or to construct any structures upon said right of way between the center line of Madison street on the north and the north line of block 23 in said fractional section fifteen; that the city of Chicago may be enjoined and restrained from constructing or permitting to be constructed upon said public park, either west of the aforesaid right of way of said defendant railroad or in the waters of Lake Michigan next east thereof, between the north line of block 23, etc., any structures, buildings, banks, walls, viaducts, bridges, or other obstructions of any kind that will cut off the access of your orators from their several lots over said public park to the waters of Lake Michigan, or that will obstruct the view from the level of your orators' respective lots over said public park to the waters of Lake Michigan; * * * and be forever enjoined from using or permitting said public park to be used for any other purpose than those of a public park and landing place.' Writs of injunction were asked against each of the defendants, enjoining and restraining them as prayed. The city demurred to the bill, and on February 15, 1896, by agreement of parties, it was ordered that the answer of the defendant railroad company to the original bill stand as an answer to the original bill as amended, and to the second supplemental bill, and that the replication of complainant on file stand as a replication to such answer, with leave to the railroad company to amend and file further answers within 20 days; all to be without prejudice to the previous reference to the master, and the evidence theretofore taken thereunder. At the same time leave was granted the city to amend its general demurrer, and file special grounds of demurrer instanter. The demurrer was then set down for hearing, and submitted on argument, and the matter taken under advisement by the court. On May 19th following the demurrer was sustained, and, complainants electing to stand by their bill, it was ordered that the same be dismissed as to the city of Chicago, at complainants' costs. From that order this appeal is prosecuted.

It thus appears from the record that as to the Illinois Central Railroad Company the cause is still pending and undetermined in the circuit court, and it is insisted by the appellee that for that reason this appeal must be dismissed. It is also contended that, in no view of the case, could the appeal be taken directly to this court, and on that ground also it should be dismissed. It is provided by our statute (Rev. St. 1893, c. 110, § 67) that: ‘Appeals from and writs of error to all circuit courts, the superior court of Cook county, * * * may be taken to the appellate court, from all final judgments, orders and decrees, except as hereinafter stated.’ Section 88 of the same chapter provides that all criminal cases above the grade of misdemeanor, and cases in which a franchise or freehold, or the validity of a statute, or construction of the constitution is involved, and all cases relating to revenue,...