City of Chicago v. Chicago, R.I.&P. Ry. Co.

Decision Date29 October 1894
Citation38 N.E. 768,152 Ill. 561
CourtIllinois Supreme Court
PartiesCITY OF CHICAGO v. CHICAGO, R. I. & P. RY. CO. et al.

OPINION TEXT STARTS HERE

Appeal from circuit court, Cook county; Lorin C. Collins, Judge.

Bill by the Chicago, Rock Island & Pacific Railway Company and the LakeShore & Michigan Southern Railway Company against the city of Chicago. Complainants obtained a decree. Defendant appeals. Affirmed.Wilson, Moore & McIlvain, for appellant.

Robert Mather, for appellees.

SHOPE, J.

This is a bill in chancery in the circuit court of Cook county by appellees, railway companies, as complainants, to enjoin the city of Chicago, its officers, agents, etc., from interfering with complainants in the construction and maintenance of a fence along and upon certain lots in said city, owned by appellees as part of their right of way, and, with the exception of narrow strips of land on either side, occupied by a passenger depot erected thereon, and used by them jointly. Said lots were bounded on the north by Van Buren street, on the east by Pacific avenue, on the south by Harrison street, and on the west by Sherman street. The depot building fronted on Van Buren street, and in the construction thereof said narrow strips of land were left unoccupied, and were used by the public as parts of the highways; the one on the east side, adjacent to the west line of Pacific avenue, being some 27 feet wide, having been used continuously by the public, in connection with the street, since the construction of appellees' depot on said lots. The question here involved is as to the right of ownership and control of the strip of ground mentioned, lying between appellees' depot station and the east line of Sherman street on the west, and the west line of Pacific avenue on the east. It is insisted on behalf of appellant (1) that the two strips in question were dedicated by appellees to the public use as part of said streets, respectively, in said city; (2) that the public has been in the continued and uninterrupted use of the same as and for a public highway, under claim of right, for a period of 24 years, and has therefore acquired an easement therein by prescription. As to appellant's first contention it may here be said that there is no claim or pretense of a statutory dedication, but it is insisted that the evidence is sufficient to establish a valid dedication at common law.

It appears from the evidence that, in 1865 or 1866, appellees, being then the owners in common of a block of ground in the city of Chicago, bounded by the streets above stated, caused the same to be surveyed by the city engineer, and erected thereon a passenger depot. Pacific avenue (then known as Griswold street), on the east, was 40 feet wide, and Sherman street, on the west, for one-half the length of the block, was 40 feet wide, and from thence to Harrison street, on the south, 60 feet wide. It appears from the testimony of the architect, Mr. Bayington, who had charge of the design and construction of the depot building erected in 1865 and 1866, as well as that erected after the great fire, that there was quite a strip of land on the east, and a smaller strip on the west, between the building and street line. In answer to the question as to what, if anything, was said to him by the officials of the railroads, at the time he was making his plans and superintending the work, with reference to the object or purpose for which the strip of ground was left on the east of the building, this witness testified: ‘I recollect the street line being staked out, and a consultation with the different interests of the railroads as to how much the building should cover of the lot. The arguments were: The street being narrow, the advantages of having the strip on the east, which would be the exit for passengers going out or going off. It would be very much to their interest to have a strip large enough to control the bus and hack approaches, or, in other words, for their own police control of that much ground, so that, if there was any objectionable parties backing in there or making a fuss, they could order them off onto the street. That that would be as advantageous to them as it would be under the roof of the building, and they concluded to have a strip there for that purpose. I think they put it in this form for their own accommodation, so that omnibuses and carriages might be standing on their own ground, and they could control their movements and conduct while there. That is the way they expressed themselves at that time.’ Mr. Albert Keep, at the time of the trial of this cause chairman of the board of directors of the Northwestern Railroad Company, testified: ‘I remember the construction of the present passenger depot and the one that was burnt down in 1871. * * * I was a director of the company and member of the executive committee when the plans of that building [the old one] were in preparation, and the building itself erected. The executive committee was selected by the board of directors from among its members. I remember that the depot did not extend, on either side, to the limits of the company's property. My impression is that about twenty-seven feet was left on the eastern side, and a less space on the west side. Q. Did you have any conversation with Mr. Phillips, the president of the Michigan Southern Railway Company, at or about that time, with reference to the purpose for which this space was left vacant? A. I did. Q. With reference particularly to the space adjoining Pacific avenue, you may state what, in substance, were those conversations. A. I talked with Mr. Phillips in regard to the space left on the eastern side of the building, and the reason why it was left. The reason was that the company desired to control the space where they thought it would be necessary for omnibuses to stand, so that those omnibuses might drive up on the company's grounds, and receiveand discharge their passengers, without being liable to be interfered with by the police or city authorities. That was the substance of the understanding, or the conclusion as the result of the understanding.’ To the same effect is the testimony of Charles Paine, of New York, in 1865 and for sometime thereafter chief engineer of the Michigan Southern Railroad, who testified, in substance, that the space was left for the express purpose of controlling teams, omnibuses, and express wagons which should be at the station, and that it was discussed among the officers of the companies in the preparations of plans for the building. Mr. Phillips, who at that time was president of the Michigan Company, testified that various conferences and consultations were had among the officials of the roads with reference to the strips,-to what they should be devoted,-and that the object and design of the companies was to enable them to control the access to the station. ‘The space was actually used by carriages, omnibuses, wagons, and other conveyances coming to or going from the station, to enable passengers to be received and delivered there with their baggage, on the companies's ground. There was a covered platform running on the east side of the building. Next to that came the wall which supported the train shed. There were several doors in that wall. There must have been fifteen or twenty, I should think, according to my recollection. And that there was no intention to leave the same to be devoted as part of the street,’ etc. Other witnesses were produced, who testified to substantially the same facts relating to the original purpose of the companies in leaving the strip out.

It also appears that in October, 1866, after the walls of the building had been commenced, the city of Chicago entered into two separate contracts providing for the paving of certain portions of Sherman and Griswold (or Pacific) streets within the recorded lines of said streets, which lines were surveyed for the purpose by the city engineer. The cost of paving the streets was assessed upon property benefited, the railroad companies paying their proportionate share thereof, assessed against their said property. The same contractor to whom the paving of said streets was let by the city also made a contract with said railroad companies to pave the strips of land lying between the building and said street lines, which contract was performed, and the paving paid for by the said companies. The evidence tends to show that, the pavement of the streets and of said strips being alike, a line of blocks was laid lengthwise in order to indicate the line separating the streets from said strips. The pavement for the railroad companies extended to a curb along the edge of a covered platform running the length of the building on either side, and, save the line of demarkation above mentioned, the pavement had the appearance of a continuous roadway from the sidewalks on the one side to the depot platform on the other. The curbstone along the platform was paid for by the railroad companies, and put there at their request, and was extended in a straight line from the south end of the depot to Harrison street on the south,-a distance of about 175 feet. In 1871 the depot was destroyed by fire, and the following year rebuilt on the same foundation; the platform and curbstones on either side being reconstructed on the previous lines. In 1877 Pacific avenue, from Van Buren to Harrison streets, was repaved under private contracts with owners on the respective sides of the street; the owners on the east side paying for 12 feet of paving, between the center line of the platted street and the outer edge of an 8-foot sidewalk in front of their premises, and the railroad companies, owning the entire frontage on the west side, paid for paving 20 feet, or the west half, of the street. At the same time the companies repaved the strip of ground in controversy, on the east side of their depot, and along the west line of the street; and, in order that their pavement be laid...

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