Englewood Connecting Ry. Co. v. Chicago & E.I.R. Co.
| Decision Date | 15 May 1886 |
| Citation | 6 N.E. 684,117 Ill. 611 |
| Court | Illinois Supreme Court |
| Parties | ENGLEWOOD CONNECTING RY. CO. v. CHICAGO & E. I. R. CO. |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
R. Biddle Roberts
, for appellant.
Wm. W. Armstrong, for appellee.
This was a bill brought in the circuit court of Cook county by the Chicago & Eastern Illinois Railroad Company to enjoin the Englewood Connecting Railway Company from constructing its track across the track of the Chicago & Western Indiana Railroad Company on Wallace street, in the town of Lake, in Cook county. The bill of complaint states that on the twenty-fourth day of October, 1879, the complainant made and entered into a written lease with the Chicago & Western Indiana Railroad Company, under and by virtue of which complainant acquired the right to use the tracks of said Western Indiana, from Dalton to the terminus, in the city of Chicago, for a period of 999 years; that a supplemental lease was made on the thirteenth day of December, 1880; that the lease and supplemental lease were recorded in the recorder's office of Cook county, Illinois, before the defendant was created; that the complainant has been in the use of said railroad track ever since the execution of said lease. The defendant put in an answer to the bill, in which it alleged that it was a corporation duly organized under the laws of the state of Illinois, with its principal office at Chicago; that it is empowered to construct a railroad from a point on the Chicago, Pittsburgh & St. Louis Railway, in the town of Lake, between Fifty-eighth and Fifty-ninth streets, to a point on the Pittsburgh, Fort Wayne & Chicago Railway, in said town, between Fifty-eighth and Fifty-ninth streets, with the right to construct all side tracks, etc., that its directors may determineupon. It is also set up in the answer that defendant has the right to cross Wallace street; that respondent on a certain date filed in the county court its petition to condemn, against the Chicago & Western Indiana Railroad Company; that said petition was tried; that judgment fixing the damages due to the Chicago & Western Indiana Railroad Company in the sum of $400 was entered and paid. The lease set up in the bill, and the condemnation proceedings set up in the answer, are made exhibits to the answer.
The cause came on to be heard upon bill, amended bill, answer, and exhibits, August 10, 1885, and on motion of plaintiff in error here the injunction was dissolved, and the bill was dismissed for the want of equity. The complainant appealed to the appellate court, where the decree of the circuit court was reversed, and the cause remanded for further proceedings not inconsistent with the opinion. To reverse the decision of the appellate court this writ of error was sued out by the defendant in the bill.
The first question for consideration is the motion of defendant in error to dismiss the writ of error for the alleged reason that the order of the appellate court is not such a final order as entitles plaintiff to appeal or have a writ of error. The only relief sought in the bill was an injunction, and, when the circuit court dissolved the injunction, the complainant requested that the bill might be dismissed, which was done, for the reason, as we suppose, that no other relief was prayed for in the bill. Had there been any other ground of relief, of course the bill would have been retained for the purpose of disposing of such matters. In the appellate court it was held that the complainant had property rights in the crossing which had never been condemned, as against the complainant, and that it was entitled to an injunction, and that the court erred in dismissing the bill for the want of equity. Then followed the order reversing, and remanding for further proceedings not inconsistent with the opinion. When the case goes back there is nothing for the circuit court to do but to enter a decree making the injunction perpetual. On bill, answer, and exhibits the circuit court held that complainant was not entitled to an injunction restraining the construction of the one railroad across the tracks of the other. The appellate court, on the same facts, on appeal, held that complainant was entitled to the injunction, and the cause is remanded. Obviously, when the case goes back, the duty of the circuit court would be to enter a decree in accordance with the decision of the appellate court. Now, under section 90 of the practice act an appeal or writ of error will lie from the appellate to the supreme court if the judgment, order, or decree of the appellate court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the appellate court. That was the case here. We think the case falls directly within the terms of the statute cited.
Buck v. Hamilton Co., 99 Ill. 507, has been cited and relied upon in support of the motion to dismiss. But there is no similarity between that case and the case before us. That was an action at law, and, when remanded, would stand for a new trial before a jury; but here the circuit court only had to obey the mandate of the appellate court and render a decree in accordance therewith. This case may be likened to International Bank v. Jenkins, 104 Ill. 143. The motion to dismiss will have to be overruled.
As to the merits of the case as presented by the record, but one question arises, and that is whether the Chicago & Eastern Illinois Railroad Company acquired such an interest in the railroad track of the Chicago & Western Indiana Railroad Company, under the lease, as to make it a necessary party...
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