City of Chicago v. Union Stock-Yards & Transit Co.

• Decision Date: 09 November 1896
• Citation: 164 Ill. 224,45 N.E. 430
• Court: Illinois Supreme Court
• Parties: CITY OF CHICAGO et al. v. UNION STOCK-YARDS & TRANSIT CO.

164 Ill. 224

45 N.E. 430

CITY OF CHICAGO et al.

v.UNION STOCK-YARDS & TRANSIT CO.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from circuit court, Cook county; John Gibbons, Judge.

Suit by the Union Stock-Yards & Transit Company against the city of Chicago and others. There was a decree for complainant, and defendant the city of Chicago appeals. Affirmed.Hamline, Scott & Lord and Perry Trumbull, for appellant.

Winston & Meagher, J. J. Herrick, and J. P. Wilson, for appellee.

The appellee filed its bill in equity to restrain appellant and its commissioner of public works from removing, or causing to be removed, the railroad tracks, side tracks, switches, and turnouts which consitute the railroad connecting appellee's stock yards, on the west, with the Illinois Central and Michigan Central Railroads, on the east end, with intermediate connecting roads, in pursuance of a resolution of appellant's city council adopted on the 26th of March, 1894. This resolution was as follows: ‘Resolved, that the commissioner of public works be, and he is hereby, directed to notify the Union Stock-Yards and Transit Company to cause its railroad tracks to be removed at once off and from the following avenues and places, viz.: Butterfield street, Burnside street, State street, Wabash avenue, Michigan avenue, Indiana avenue, Prairie avenue, Calumet avenue, Vincennes avenue, Union avenue, Langley avenue, 41st street, Cottage Grove avenue, Ellis avenue, Lake avenue, and Washington avenue, running east from Lake avenue; and that, unless said company proceed to remove the same within ten days after such notice, the commissioner of public works shall cause the same to be removed at the expense of said company.’ The streets named in the resolution are intermediate streets crossed by the railroad, and the removal of the tracks from one or more of these streets would destroy the continuity of appellee's line of road, and sever the connection thus made between its stock yards and two or more railroads. The tracks sought to be removed are two main tracks, one laid in the year 1865, and the other in 1875. At the time of the passage of this resolution, appellee or its lessees had maintained and operated the first-named track for upward of 29 years, and the second track for upward of 20 years. The city answered the bill, claiming that the said tracks were unlawfully in the streets mentioned, and also that, in their use and operation by appellee, they constituted and were a nuisance; claimed the right to have the said tracks removed from said public streets, and to abate the nuisance. The bill and answer were sworn to, and a motion was made by the complainant for preliminary injunction, which was heard on the bill, answer, and affidavits. Before the motion was decided, it was stipulated by the parties that the bill, answer, and affidavits be treated as depositions, and that the hearing should be a final one, and the decree entered in the cause a final decree. The decree was entered in accordance with the prayer of the bill, finding ‘that the complainant has a lawful right to maintain and operate the railroad tracks, side tracks, switches, and turnouts as laid and maintained by it at and prior to the time of the filing of said amended bill, on the said right of way mentioned in said amended bill, and more particularly described as the right of way of the Union Stock-Yards and Transit Company, extending from the Illinois Central Railroad, near the shore of Lake Michigan, on the east, to the stock yards of said Union Stock-Yards and Transit Company, on the west, in the county of Cook and state of Illinois, being the railroad tracks, side tracks, switches, and turnouts shown on the plat, marked 'Exhibit C,’ to said amended bill, and filed with the same, and that the defendants have no legal right to remove said railroad tracks, side tracks, switches, and turnouts, or any part thereof, as directed by the said resolution of the city council of the city of Chicago, passed on the 26th day of March, 1894, set forth in said amended bill.' And the city and its officers were ‘perpetually enjoined from removing or causing to be removed the said railroad tracks, side tracks, switches, turnouts, or any part thereof on the said right of way of the complainant, the Union StockYards and Transit Company, * * * extending from the Illinois Central Rnion StockYards and Transit Company, on the west.’ The city appealed to this court from that decree.

The appellee company was incorporated by special charter approved and in force February 13, 1865. By section 2 of the charter, the company was authorized to locate and maintain, at a point to be selected by ti, within a territory named, south of the city limits, ‘the necessary yards, buildings, railway lines, tracks, etc., for the reception, safe-keeping, feeding and watering, and for the weighing, delivery and transfer of cattle and live stock, and also dead and undressed animals,’ and ‘for the accommodation of the business of a general union stock yard for cattle and live stock,’ including the erection of one or more hotel buildings, ‘for the convenience of drovers, dealers and the public doing business' at the yards. Section 3 of the act provided as follows: ‘The said company shall construct a railway with one or more tracks, as may be expedient, from the grounds which may be selected for its yards, so as to connect, outside of the city of Chicago, the same with the tracks of all the railroads which terminate in Chicago, the lines of which enter the said city on the south, between the lake shore, in the southeast corner of said city, and on the west between said last-named point and the north line of section number 19,’ etc., ‘and shall have power and authority to locate and from time to time to renovate, change, alter, construct and reconstruct and fully to finish and maintain its said railroad or railroads, side tracks and connections, and to transport or allow to be transported thereon, between said railroads and cattle yards, all cattle and live stock and persons accompanying the same, to and from said yards, and may also transport or allow to be transported between the railroads entering said city, and so connected by the road or roads hereby authorized, by steam or other power, freight and property of every kind, as well as stock and cattle. * * * The said company shall have the right, with the consent of the proper authorities having control thereof, to locate or construct its road across any street or highway, doing as little damage and discommoding the public as little as may be consistent with the use of said tracks so laid.’ In 1865, after obtaining its charter, the appellee located its road, and, by condemnation and purchase, procured the right of way between said streets where its tracks are now located; but there is a controversy between the parties as to whether appellee obtained the consent of the proper authorities having control of the streets in question before laying its tracks across said streets. Further facts will be found stated in the opinion of the court.

CARTER, J. (after stating the facts).

It is in the first place contended by appellant that appellee has not maintained its right to the decree enjoining appellant from removing the railroad tracks from the streets in question. because, as it is claimed, there is no competent evidence in the record that appellee ever obtained the consent of the municipal authorities of the village of Hyde Park and the town of Lake, through which village and town the railroad was built, to lay the tracks across such streets. It is not denied that such consent was necessary, but appellee insists that the required consent was in fact given, although no record of the action of the village and town authorities in respect to the matter could be found. Much of the argument is devoted to the question of the competency of the testimony of numerous witnesses admitted by the court on behalf of appellee to prove that meetings of the village and town authorities were in fact held, and consent voted to lay the tracks across the streets in question, without any sufficient proof that any record of any such meetings and vote was ever made, or, if made, could not, upon proper search, be found. We do not deem it necessary in the decision of the case to enter upon any discussion of either the evidence or the law on this branch of the case. We are satisfied that the evidence, when fully and fairly considered, shows that the municipal authorities, respectively, of the village and town, and of their successor, the city of Chicago, have, by long acquiescence and by many affirmative acts, recognized the right of appellee to maintain and operate its road across these streets. During the period of more than 20 years since the last track was laid, appellee has, in obedience to the commands of the municipal authorities, expended considerable sums of money in improvements at the street crossings, in constructing and repairing culverts, planking the crossings, erecting and maintaining safety gates and electric lights, constructing plank and cement walks and other improvements beneficial to the general public and the municipalities, as well as to the appellee itself. The board of trustees of Hyde Park approved the plat of the right of way of appellee through the village in 1883, and the same year adipted a resolution permitting private parties to lay tracks to their coal yards connecting with appellee's road as laid, gave permission to appellee to build depots, and from time to time, before the annexation of the village to Chicago, passed many orders and resolutions making mention of these tracks as established monuments in fixing grades and directing other public work. The same course of recognition was followed after annexation by the city of Chicago, up to within a short time before the passing of the resolution directing the removal of the tracks; and it is now...