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

• Decision Date: 13 April 1901
• Docket Number: 567.
• Citation: 107 F. 771
• Parties: GENERAL ELECTRIC RY. CO. v. CHICAGO, I. & L. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

107 F. 771

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

No. 567.

United States Court of Appeals, Seventh Circuit.

April 13, 1901

Edwin Walker and Thomas A. Moran, for appellant.

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

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

WOODS Circuit Judge.

The decision in this case was handed down on January 12, 1900 (39 C.C.A. 345, 98 F. 907), but, in deference to the opinion of the supreme court of Illinois in the case of General Electric Ry. Co. v. Chicago & W.I.R. Co., 184 Ill. 588 56 N.E. 963, which was claimed to have put upon the Doane Case, 165 Ill. 510, 46 N.E. 520, an interpretation essentially different from that which we had adopted, a rehearing was granted. Besides the original briefs and argument, additional briefs were filed, and an oral argument nominally in another case, was heard in support of the petition for rehearing; and, after the granting of the petition, further briefs were filed, and full argument at the bar of the court was again heard. Upon reconsideration of all these arguments and briefs, we abide by our first conclusion.

It is urged by counsel for the appellee that the case is not one in which the decisions of the state courts should be recognized as controlling, but is one of general equity, in which this court should exercise an independent judgment. We do not find it necessary, however, to rule upon the question. If the decisions of the state court do not relate merely to the question of remedy, but are to be regarded as determining the right of the abutting owner, denying him all damages, however real and substantial, beyond what a court of law may estimate, they should, perhaps, be followed; but if conceding the full right, they mean that the appropriate and only remedy is such as the courts of law can give, they are not binding. The federal courts decide for themselves whether, for an actual or threatened invasion of a conceded or asserted right, equity may afford relief.

The Chicago & W.I.R. Case contains nothing to modify our understanding of the opinion in the Doane Case, the different parts of which only upon that understanding can be harmonized with each other, with the decisions of other courts therein cited, with a later opinion of that court, with settled principles of equity, and with an enlightened sense of justice and right. The case was treated by counsel and by the court as one involving only compensable injury. The report of the case contains an abstract of the brief or argument for the appellee, in which there is not even a suggestion that the injury alleged was not remediable at law; and, according to the opinion, nothing more was alleged in the bill or insisted upon in argument, and no showing was made that the ordinance under which the work was being prosecuted was void for lack of power in the city council to pass it. The opinion contains no reference to the decision of the court, though it had been handed down some weeks before, and no mention of the distinction which we made between this case, as involving an irreparable injury, and the Doane Case, as involving nothing for which an adequate remedy could not be had in an action at law. The charge in the bill in the Chicago & W.I.R. Case, according to the opinion, was--

'That the laying of tracks and operating the street railroad upon the streets in the manner set out in the bill would take from the appellee property, and prevent ingress and egress to and from its property, and thus injure and practically destroy a large part of its property and improvements for the uses and purposes for which they were made.'

And, proceeding, the opinion says:

'The bill alleges and sets up facts charging that the ordinance under which the appellant claims the right to erect its track upon said street was obtained by procurement and fraud.'

And on the next page it is added:

'The decree restraining the street-railway company from laying its tracks on Custom House Place and on Plymouth Place is based upon the alleged right of the abutting owner to enjoin the erection of a street railway in the street, because there is no valid ordinance authorizing its structure, and because such street-car tracks injuriously affect the appellee, as an abutting owner. The injunction which prevents the building of a street railway across the tracks of a steam railroad on Fourteenth street is based upon the alleged ground that the crossing of the railroad track by the track of the street-railway company at grade is a physical taking of the steam-railroad company's property, and an invasion of its property rights, whereby its property is damaged, and the profitable use thereof diminished.'

Then, after declaring that the question 'whether or not the right of an abutting property owner to enjoin the construction of a street railway in the streets of a city or village on the grounds that the property of an abutting owner would be injuriously affected of damaged as a consequence of the building of such street railway, or that the street railway is without legal authority, is not an open question in this state,' and after quoting from the Doane Case, the opinion proceeds:

'The allegation of an abutting property owner that the construction and operation of a street railway in front of his property will lessen its value or injuriously affect it, or the allegation that the construction of the street railway in the street is illegal or unauthorized, will not give such abutting property owner a standing in a court of equity to enjoin the construction of such road.'

In all this there is no inconsistency with anything in the opinion of this court, and there is certainly nothing which can be said to so broaden the Doane decision, either in terms or in principle, as to cover a case of irreparable injury; and that the opinion was not intended to put upon the decision in the Doane Case an interpretation which should include cases of irreparable wrong is still the more probable, because in the case of Pennsylvania Co. v. City of Chicago, 181 Ill. 289, 54 N.E. 825, 829, written by the same judge, a contrary understanding had been distinctly indicated. In that case, as in the Doane Case, it was held that the Pennsylvania Company, owning the abutting property, could not have an injunction to restrain the city from establishing a hack stand in the street in front of the north end of the Union Station for passengers, because it had...