Chicago v. Dunbar
| Decision Date | 30 September 1881 |
| Citation | 1881 WL 10600,100 Ill. 110 |
| Parties | CHICAGO AND WESTERN INDIANA RAILROAD COMPANY et al.v.EUGENE M. DUNBAR et al. |
| Court | Illinois Supreme Court |
AGREED CASE from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.
The following are the facts shown in the record in this case: On the 4th of June, 1879, the Chicago and Western Indiana Railroad Company was duly organized under the general law of this State in force July 1, 1872, which provides for the incorporation of such corporations, and defines their powers. (Rev. Stat. 799.) The purpose and object of the corporation, as stated in articles of association, was to construct and operate a railroad, the line of which “will begin at a point on the boundary line between the States of Illinois and Indiana, in the south-easterly part of Thornton township, Cook county; thence through or near the town of Dalton to such terminus in the city of Chicago as may be selected by said corporation,--all such line of railroad being in Cook county, Illinois.”
On the 15th of September, 1879, the city council, at the request of said corporation, adopted an ordinance, of which the following is a copy:
“ Be it ordained by the City Council of the City of Chicago:
SECTION 1. That permission and authority be and the same is hereby given and granted to the Chicago and Western Indiana Railroad Company to lay down, maintain and operate a railroad, with one or more tracks, and such switches, sidings and turn-outs as may be necessary, along and upon the following route in the city of Chicago, to-wit: Commencing at the southern boundary line of the city of Chicago, at some point within one hundred feet of the west line of Stewart avenue, and thence northwardly over such lots, lands and property as the said company now owns or hereafter may acquire, by lease, purchase, condemnation or otherwise, parallel to said Stewart avenue, to the intersection of Grove street and said Stewart avenue, and thence over and upon such lots, lands and property as the said company now owns or hereafter may acquire, by lease, purchase, condemnation or otherwise, unto such terminus as it may establish between the east bank of the south branch of the Chicago river and the west side of State street, and between Sixteenth street and the south line of Van Buren street, in said city.
Sec. 2. The said railroad company may cross any and all intervening streets, alleys and railroad tracks upon or along the line of the said route, as designated in the first section, said company to be subject at all times to the direction of the department of public works, or other proper department or officer of said city, in the construction of its said tracks, in making the crossings or connections with other roads, and the keeping in repair of so much of said streets, alleys and crossings as may be occupied by said railroad company with its tracks, switches and turn-outs. Sec. 3. The said railroad company may, and it is hereby authorized to, lay down, maintain and operate one or more railroad tracks, with such turn-outs, side-tracks and switches as it shall deem necessary, over and across any land which it may acquire upon the line of said route, by lease, purchase, condemnation or otherwise; and the said railroad company may use and operate the railroad tracks hereby authorized to be laid, with locomotive engines and cars, subject to all ordinances of the city of Chicago applicable to railroads which are now or hereafter may be in force.
Sec. 4. The permission, authority and privileges hereby granted are upon the express condition that the said railroad company shall erect and maintain viaducts over any of its said tracks, on any street or streets of said city which may be crossed by its said tracks, where and as the said city council may from time to time require, and under the supervision of the department of public works, or other proper department or officer of said city, and erect and construct the approaches to all such viaducts, with proper areas on either side of such approaches: Provided, however, that where any such viaduct can not be built at any such street crossing without the same be built over the track or tracks of some other railroad company or companies, then the said Chicago and Western Indiana Railroad Company shall only be obliged to join with such other last mentioned railroad company or companies in the construction and maintenance of such viaduct, and to pay their fair proportion of such viaduct or viaducts; and if such other railroad company or companies shall not join in the erection of any such viaduct, then, when the proportion of such other company or companies shall be otherwise provided, the said Chicago and Western Indiana Railroad Company shall pay its fair proportion of the cost of any such viaduct.
Sec. 5. The said railroad company shall be subject to all general laws and ordinances of the city of Chicago in relation to railroads, which are now or may hereafter be in force.
Sec. 6. The permission and authority hereby granted are upon the further express condition, that the said railroad company shall and will forever indemnify and save harmless the city of Chicago against and from any and all damages, judgments, decrees and costs and expenses of the same which it may suffer, or which may be recovered or obtained against said city, for or by reason of the granting of such privileges and authority, or for or by reason of, or growing out of or resulting from, the passage of the ordinance, or any matter or thing connected therewith, or with the exercise by said company of the privileges hereby granted, or from any act or acts of the said company under or by virtue of the provisions of this ordinance.
Sec. 7. The permission and authority herein granted are upon the further express condition, to-wit: That said railway company shall permit any corporation, person or persons, duly authorized by ordinance of said city, to construct side-tracks to intersect any track or tracks of said railroad company within the limits of said city, for the purpose of conveying property to and from such railroad to any warehouse, lumber yard, coal yard, or any manufactory situated within one thousand feet of said railroad; and upon reasonable compensation being made therefor, shall, at all times, permit the owners or lessees of any such side-track, or the consignees of any property, to take the cars containing such property to him or them consigned, to any such warehouse, lumber yard, coal yard or manufactory, situated upon any such side track: Provided, however, that any cars so taken shall be returned without any unnecessary delay, and that any such owner, lessee or person conducting or carrying on any such warehouse, lumber yard, coal yard or manufactory, shall be entitled to have any property taken from any such warehouse, lumber yard, coal yard or manufactory, over any such sidetrack, to and upon the tracks of said railroad, under the directions and regulations, to said railroad company, without unreasonable delay: And provided further, that the privileges authorized herein are granted upon the express condition that the Chicago and Western Indiana Railroad Company shall permit any other railroad companies, not exceeding two in number, which have not at present any right of entrance into the city of Chicago under any existing ordinance, to use the said main railroad tracks herein authorized to be laid jointly with the said Chicago and Western Indiana Railroad Company, upon such fair and equitable terms as may be agreed upon by said companies; and in event that said companies can not agree upon such terms, the same shall be settled by three disinterested persons, one to be selected by said Chicago and Western Indiana Railroad Company, one to be named by such other company as may desire to use said tracks, and the third by said two persons, and the terms and conditions which shall be fixed and determined by said persons, or a majority of them, shall be the terms and conditions upon which said companies, respectively, shall use and occupy said tracks; and upon the further express conditions that said Chicago and Western Indiana Railroad Company, and any other railroad company or companies that shall construct or operate said railroad under this ordinance, or under lease from or contract with the said Chicago and Western Indiana Railroad Company, shall be held jointly bound to pay all legal damages that may accrue to the owners of property by reason of the construction or operation of said railroad under the ordinance.
Sec. 8. The privilege and authority hereby granted are so granted upon the further express condition that the tracks authorized by this ordinance shall be laid down and constructed within one year from the passage of this ordinance; and if not so constructed and in operation, all the rights and privileges granted by this ordinance to such company shall cease, and be null and void.
Sec. 9. This ordinance shall be in force from and after its passage.”
This ordinance was passed without any previous petition by the owners of property fronting upon any of the streets or alleys intersected or to be intersected by the line of said railroad, asking that the consent of the city should be given to the railroad company to lay down its tracks over or across any of such streets or alleys.
Before the adoption of this ordinance, the railroad company had located and surveyed its line from the point on the State line to a point on the south boundary of the city of Chicago, and had selected a contemplated line in the city, within the bounds named in the ordinance, and had purchased large amounts of lots and lands on and near its proposed line. After the passage of the ordinance, and before the filing of the bill in this case, the railroad company had fixed its northern terminus on the south side of Van Buren street,...
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