General Elec. Ry. Co. v. Chicago, I. & L. Ry. Co.

• Decision Date: 02 January 1900
• Docket Number: 567.
• Citation: 98 F. 907
• Parties: GENERAL ELECTRIC RY. CO. v. CHICAGO, I. & L. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

98 F. 907

GENERAL ELECTRIC RY. CO. v. CHICAGO, I. & L. RY. CO.

No. 567.

United States Court of Appeals, Seventh Circuit.

January 2, 1900

An abutting property owner, who would suffer a special and irreparable injury from the construction and operation of a street railroad upon the street under an ordinance alleged to be invalid, may invoke equitable relief by injunction. The rule declared by the supreme court of Illinois that a court of equity will not enjoin the construction of a railroad upon a street at the suit of a private property owner, upon an allegation that the ordinance authorizing its construction is illegal, is placed upon the ground that for any injury to the plaintiff's property he has an adequate remedy at law and cannot be applied to a case where irreparable injury is shown, which would be to deny to the complainant any adequate remedy.

This appeal is from an interlocutory order, forbidding the appellant, the General Electric Railway Company, to enter upon 14th street at Dearborn street, and upon Custom House Place (Fourth street) between 14th street and Polk street, in Chicago, for the purpose of constructing thereon a street railway. The order was sought and granted on the ground that the presence and operation of the proposed railway would so interfere with access to the freight house and track yard of the appellee, abutting on the west line of Custom House Place between Polk and 14th streets, and with the use of its tracks therefrom to 14th street, that it would cause to the appellee special injury, for which an adequate remedy at law could not be had; and that the ordinance by virtue of which the appellant was asserting the right to construct the proposed railway was void because passed without requisite petition of the owners of one-half of the abutting properties. The order was granted after argument by counsel, upon a consideration of the bill and affidavits in support of its averments. The bill is long and a statement of its contents is not necessary to an understanding of the case. The scope of the discussion, which has been elaborate, is shown by the positions asserted and authorities cited in the briefs.

For the appellant the following:

(1) The facts well pleaded in the bill do not authorize equitable relief by injunction. Doane v. Railroad Co., 165 Ill. 510 46 N.E. 520, 36 L.R.A. 97. (2) The use of a public street in the city of Chicago for the purpose of furnishing additional facilities for travel or transportation by a street-railway company will not be enjoined at the suit of an abutting owner.

(a) The remedy for the unlawful use of a public street in the city of Chicago is by information in chancery by the attorney general, or by bill in chancery by the city. Moses v. Railway Co., 21 Ill. 516; Railway Co. v. Schertz, 84 Ill. 135; Corcoran v. Railroad Co., 149 Ill. 291, 37 N.E. 68; Doane v. Railway Co., 165 Ill. 510, 46 N.E. 520, 36 L.R.A. 97; Bond v. Pennsylvania Co., 171 Ill. 508, 49 N.E. 545; Blodgett v. Railway Co., 26 C.C.A. 21, 80 F. 601; Coffeen v. Railway Co., 28 C.C.A. 274, 84 F. 46; Henry Gauss & Sons Mfg. Co. v. St. Louis, K&N.W. Ry. Co. (Mo.Sup.) 20 S.W. 658, 18 L.R.A. 339; Hobart v. Railroad Co., 27 Wis. 194.

In addition to these points it was urged in argument that, confessing in the bill the existence of an ordinance, the complainant is not in a position to question its validity, or deny the jurisdiction of the common council to pass it. Commissioners v. Aspinwall, 21 How. 539, 16 L.Ed. 208; Bissell v. City of Jeffersonville, 24 How. 287, 16 .Ed. 664; Rubber Co. v. Goodyear, 9 Wall. 788, 19 L.Ed. 566; Mowry v. Whitney, 14 Wall. 434, 20 L.Ed. 858; U.S. v. American Bell Tel. Co., 128 U.S. 315, 9 Sup.Ct. 90, 32 L.Ed. 450; U.S. v. San Jacinto Tin Co., 125 U.S. 273, 8 Sup.Ct. 850, 31 L.Ed. 747; In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092; and City of Chicago v. Ramsey, 87 Ill. 348.

From the brief for the appellee the following:

(1) Cases brought by abutting owners for injuries to their abutting property, caused by intrusion of street cars and tracks upon streets, are divided into two classes: First. Cases wherein the abutting owner, as plaintiff, complains of an injury suffered in common with other abutting owners or with the public. In this class of cases the complaining abutting owner has adequate relief at law, and to this class the cases cited by counsel, and their argument, exclusively apply. Second. Cases in which the abutting owner is shown to suffer a special injury to his property or its use not common to other abutting owners or to the public. When it appears that plaintiff will suffer a special and irreparable injury, equity never refuses to furnish the remedy here granted by the court below. This distinction between these two classes of cases is clearly defined in Doane v. Railroad Co., 165 Ill. 510, 46 N.E. 520, 36 L.R.A. 97. In Chicago & W.I.R. Co. v. General Electric Ry. Co., 79 Ill.App. 569, the distinction was recognized, and relief by injunction granted. The same distinction in Cincinnati & S.G.A. St. Ry. Co. v. Village of Cummingsville, 14 Ohio St. 523; Field v. Barling, 149 Ill. 556, 37 N.E. 850, 24 L.R.A. 406; People v. General Electric Ry. Co., 172 Ill. 129, 50 N.E. 158; Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N.E. 758, 42 L.R.A. 696; Central City H. Ry. Co. v. Ft. Clark H. Ry. Co., 81 Ill. 523; Li Gare v. City of Chicago, 139 Ill. 46 28 N.E. 934; Frizell v. Rogers, 82 Ill. 109; Rigney v. City of Chicago 102 Ill. 72; Ninth Ave. R. Co. v. New York El. R. Co., 7 Daly, 174; Bridge Co. v. Summers, 13 W.Va. 476; Dubach v. Railway Co., 89 Mo. 483, 1 S.W. 86; McElroy v. Kansas City (C.C.) 21 F. 257; Pappenheim v. Railway Co., 128 N.Y. 436, 28 N.E. 518, 13 L.R.A. 401.

(2) If the injury amounts to a destruction of the total or substantial use of the property, it is equivalent to an actual taking, and the question is one of compensation, and not consequential damages, and in such case equitable jurisdiction may be invoked for injunction. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; Dodson v. City of Cincinnati, 34 Ohio St. 276; Cooley, Const. Lim. 677; Railway Co. v. Mills, 85 Mich. 624, 48 N.W. 1007.

(3) A city, by valid ordinance, could not thus destroy the use of Custom House Place for access by the shipping and teaming public to the freight house of a common carrier. Li Gare v. City of Chicago, 139 Ill. 46, 28 N.E. 934; Pappenheim v. Railway Co., 128 N.Y. 436, 28 N.E. 518, 13 L.R.A. 401; Newell v. Sass, 142 Ill. 104, 31 N.E. 176.

(4) The compromise contract ordinance of 1883, and its acceptance by the Western Indiana Company, vested in it absolute property rights in the streets, which cannot be devested by the city, or by appellant as its alleged subsequent grantee. By the acceptance of this compromise ordinance by the Western Indiana, and its compliance with the terms therein recited, it became a contract between the parties, which cannot be changed, impaired, or abrogated by any subsequent ordinance without the consent of the Western Indiana. Carter v. City of Chicago, 57 Ill. 283; Const. Ill. art, 2, § 13; Const. U.S. Amend. art. 5; Chicago & W.I.R. Co. v. General Electric Ry. Co., supra; Cicero Lumber Co. v. Town of Cicero, supra. The validity of this contract ordinance has been adjudged by the supreme court of Illinois. Chicago v. W.I.R. Co. v. Dunbar, 100 Ill. 122; Same v. Illinois Cent. R.Co., 133 Ill. 156; City of Chicago v. Chicago & W.I.R. Co., 105 Ill. 73.

(5) An ordinance attempting to give the right of a street for a street railroad without the consent of the majority of street frontage is wholly void. Hunt v. Railway Co., 121 Ill. 638, 13 N.E. 176; Chicago & W.I.R. Co. v. General Electric Ry. Co., 79 Ill.App. 569. If a street-car track is laid in the street without such consent, it is a public nuisance. McCartney v. Railway Co., 122 Ill. 611; North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207; Metropolitan City Ry. Co. v. City of Chicago, 96 Ill. 620; Railway Co. v. Loeb, 118 Ill. 216, 8 N.E. 460. The threatened construction of such a nuisance may be enjoined at the suit of an abutting owner, if such construction and continuance of the nuisance would inflict substantial and material injury to his property or its use. Rainey v. Herbert, 5 C.C.A. 183, 55 F. 443; Kavanaugh v. Railway Co., 78 Ga. 803, 4 S.E. 113; City of East St. Louis v. O'Flynn, 119 Ill. 200, 10 N.E. 395; Smith v. McDowell, 148 Ill. 68, 35 N.E. 141; Cicero Lumber Co. v. Town of Cicero, supra; Chicago & W.I.R. Co. v. General Electric Ry. Co., supra.

(6) An alleged ordinance may be attacked for want of power or jurisdiction in the city council to pass, in any proceeding where it is offered to justify a trespass. Hurd's Rev.St.Ill. 1898, c. 24, par. 90; Hunt v. Railway Co., 121 Ill. 638, 13 N.E. 540; Roberts v. Easton, 19 Ohio St. 78; Hayes v. Hones, 27 Ohio St. 219; Mulligan v. Smith 59 Cal. 206; Ogden City v. Armstrong, 168 U.S. 224, 18 Sup.Ct. 98, 42 L.Ed. 444; Ziegler v. Hopkins; 117 U.S. 687, 6 Sup.Ct. 919, 29 L.Ed. 1019; Page v. Mayor, etc. 34 Md. 558; Mayor, etc., v. Radecke, 49 Md. 217; Town of Covington v. Nelson 35 Ind. 532; Phil.Ev. (St Ed., Cowen & H. Notes) 801; New Orleans Waterworks Co. v. City of New Orleans, 164 U.S. 481, 17 Sup.Ct. 161, 41 L.Ed. 518; Metropolitan City Ry. Co., v. City of Chicago, 96 Ill. 620; Damp v. Town of Dane, 29 Wis. 419; Dows v. City of Chicago, 11 Wall. 108, 20 L.Ed. 65; Sharpe v. Speir, 4 Hill, 76; Bonaparte v. Railway Co., 1 Baldw. 205, Fed.Cas.No. 1,617; Erwin v. Fulk, 94 Ind. 235.

Thomas A. Moran, for appellant.

E. C. Field and G. W. Kretzinger, for appellee.

Before WOODS and JENKINS, Circuit Judges, and SEAMAN, District Judge.

WOODS Circuit Judge, after stating the facts as...