City of Sullivan v. Cent. Illinois Pub. Serv. Co.

• Decision Date: 20 February 1919
• Docket Number: No. 12481.,12481.
• Citation: 122 N.E. 58,287 Ill. 19
• Parties: CITY OF SULLIVAN v. CENTRAL ILLINOIS PUBLIC SERVICE CO.
• Court: Illinois Supreme Court

287 Ill. 19

122 N.E. 58

CITY OF SULLIVAN

v.CENTRAL ILLINOIS PUBLIC SERVICE CO.

No. 12481.

Supreme Court of Illinois.

Feb. 20, 1919.

Appeal from Circuit Court, Moultrie County; Franklin H. Boggs, Judge.

Bill by the City of Sullivan asking for a mandatory injunction to compel the Central Illinois Public Service Company to vacate its streets and alleys. From a decree for complainant, the defendant appealed to the Appellate Court. Transferred on motion of appellee on ground that freehold was involved. Cause transferred to Appellate Court.

Vause, hughes & Kiger, of Mattoon, for appellant.

J. K. Martin, City Atty., and E. J. Miller, both of Sullivan, for appellee.

CARTER, J.

This was an amended bill filed by appellee, the city of Sullivan, in the circuit court of Moultrie county, asking for a mandatory injunction to compel appellant company to vacate the city's streets and alleys and require it to cease using its poles, wires, transformers, and other property in said city. After the pleadings were settled the case was referred to a master to take the proof. He reported in favor of allowing the prayer of the bill. The chancellor approved the finding of the master and entered a decree in accordance with the prayer of the amended bill, requiring the company to vacate the streets and alleys of the city as prayed. From that decree an appeal was taken to the Appellate Court, and on motion of appellee was transferred to this court on the ground that a freehold or franchise is involved. A motion has been made in this court by appellant to transfer the case to the Appellate Court because the question of a freehold or franchise is not involved, and that motion was taken with the case, and must be first considered and decided.

In order to reach a correct conclusion on the question of jurisdiction it is necessary to refer briefly to the issues involved herein.

In 1891 an ordinance was passed by said city granting to John H. Baker for 20 years the right to furnish electricity to consumers in that city. In 1913 the appellant company acquired the property from Baker, and thereafter furnished electricity to the citizens. Before the expiration of the 20-year period allowed in said ordinance Baker apparently attempted to obtain from the city a further period of time in which to carry on his business in said city, but failed of obtaining such permission from the city authorities. After the purchase of the property by the appellant it appears that representatives of the company attempted at different times to obtain ordinances from the city granting further, time in which to conduct its business in the city; these negotiations having been continued up to the commencement of these proceedings, but no such ordinance was ever passed. It appears that much of the time since its purchase of this property in 1913 appellant has furnished electricity to the city as one of its customers, for which at the time of the trial the city owed appellant the conceded amount of $691.73. It also further appears that at the request and command of the city authorities appellant has removed its poles and wires from the public square and placed them in alleys, at an expense of some $2,000. It also appears that at the time appellant purchased the property it was in a somewhat run-down condition, and that shortly after scquiring the property, and during the negotiations with the city for the extension of the right to conduct business, appellant made improvements at an expense of approximately $12,000 in resetting and repairing its poles, wires, and other property connected with its business, and other amounts subsequently, so that the total expended was over $22,000, and that these improvements have apparently been made, if not with the sanction, at least with the acquiescence, of the city authorities. It is alleged in appellant's answer that it will suffer great financial loss if not permitted to carry on its business in said city, that it would be inequitable and unjust to make it cease business, and that the city is estopped by its previous sanction and acquiescence in the improvements made by appellant in the conduct of its business from compelling appellant to remove its poles and wires and vacate the streets and alleys of the city as prayed for in the amended bill.

Counsel for appellee state in their briefs that both a franchise and a freehold are involved in this proceeding, but do not argue or cite any authorities as to a franchise being involved. They do not argue that the title to the streets is put in issue by the pleadings herein, but that it is claimed by appellant, in effect, that the facts set up in the answer operate as an estoppel against the city of Sullivan ousting appellant from the streets and alleys, and that appellant, in effect, thereby claims a right to maintain its poles and wires in the streets and alleys which may be in perpetuity, and that therefore a freehold is involved. Counsel for appellant deny that their pleadings, in effect, claim that appellant has an easement in perpetuity in said streets and alleys, and we are disposed to agree with them on that question. It has been held that, in order to authorize this court to take jurisdiction by a direct appeal from the circuit court, it must appear from the record, and not merely from the statement of counsel and argument, that some question is involved which authorized the appeal. People v. Cannon, 236 Ill. 179, 86 N. E. 215.

It is further argued by counsel for appellee that, even though the claim of appellant in its answer as to the city being estopped, if sustained, does not give the company an easement in perpetuity, yet, if appellant's claim be sustained, it certainly would have an easement for an indefinite time, and that therefore a freehold is involved. In People v. Union Gas Co., 254 Ill. 395, 418, 98 N. E. 768, 776 (Ann. Cas. 1916B, 201), where the question of estoppel against a city was involved, and it was held that the city was estopped from ousting the gas company from the city streets by an information in quo warranto, the court stated that this holding as to the city being estopped would not ‘have the effect, as suggested by counsel for the city, of giving appellant an exclusive or irrevocable right or privilege to use the streets, but in the conduct and management of its business it will still be subject to the Constitution and laws and the control of the city council acting thereunder.’ Appellant was incorporated under the act concerning corporations, approved July 1, 1872 (Laws 1871-72, p. 296), and therefore by section 2 of that act the duration of its legal existence in this state was limited to 99 years. Hurd's Stat. 1917, p. 699. It has been held by this court that, where a municipal corporation grants a utility the right to use the public streets without a time limit as to the duration of the right, such grant is not perpetual, and is necessarily limited to the life of the corporation granting it (People v. Chicago Telephone Co., 220 Ill. 238, 77 N. E. 245;Venner v. Chicago City Railway Co., 236 Ill. 349, 86 N. E. 266); and it...