Greene v. Aurora Rys. Co.
| Decision Date | 06 September 1907 |
| Docket Number | 1,369. |
| Citation | 157 F. 85 |
| Parties | GREENE v. AURORA RYS. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Chester E. Cleveland, for appellant.
Charles P. Abbey, for appellee.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.
The appellant, Edward B. Greene, filed a bill in the court below for injunctional relief against the appropriation and use of his property by the Aurora Railways Company for railroad purposes, and this appeal is from a decree entered upon hearing of demurrer thereto dismissing the bill (as finally amended) for want of equity. The appropriation sought by the railways company is for right of way, for alleged commercial railway purposes, on Galena street, in the city of Aurora, Ill.; and the appellant owns an abutting lot, with title in fee extending to the center of such street, subject to the public easement of street use, which is included in the proposed taking for right of way without his consent. In various averments of the bill, both charter and ordinance authority to take and use the property for commercial railway purposes are distinctly challenged, and the pendency of condemnation proceedings therefor is averred in an amendment to the bill.
The question thus raised, of power conferred upon the railways company to appropriate this property for right of way, was the only one open to controversy, under the averments of the bill and admissions by demurrer; and the assumed delegation through its charter, of the sovereign power of eminent domain, was clearly subject to challenge by the property owner. The sufficiency of this ownership of the fee in the street, to entitle the owner to equitable relief against invasion for other than street use, is settled in Wilder v. Aurora, De K. & R. Elec. Trac. Co., 216 Ill. 493 526, 75 N.E. 194, if questionable at any stage, under the decisions in that jurisdiction. It is there settled, as well that a 'commercial railroad' is not a street railroad, and its use of a street 'constitutes a new and additional servitude upon the fee of the property owner to the center of the street. ' Under the general doctrine of equity the jurisdiction is unquestionable, with or without the pendency of statutory proceedings for condemnation, to ascertain whether power is vested in the railways company to thus take private property, and protect the owner against unauthorized invasion of rights therein, for which no...
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