Greenlee Foundry Co. v. Borin Art Products Corp.

• Decision Date: 13 May 1942
• Docket Number: No. 26385.,26385.
• Citation: Greenlee Foundry Co. v. Borin Art Products Corp., 379 Ill. 494, 41 N.E.2d 532 (Ill. 1942)
• Parties: GREENLEE FOUNDRY CO. v. BORIN ART PRODUCTS CORPORATION et al.
• Court: Illinois Supreme Court

379 Ill. 494

41 N.E.2d 532

GREENLEE FOUNDRY CO.

v.BORIN ART PRODUCTS CORPORATION et al.

No. 26385.

Supreme Court of Illinois.

March 16, 1942.

Rehearing Denied May 13, 1942.

Suit by the Greenlee Foundry Company against the Borin Art Products Corporation and others to enjoin defendants from constructing a switch track and for a mandatory injunction to compel them to remove part of the switch track already laid.From the decree, defendants appeal.

Affirmed.

FARTHING, J., and MURPHY, C. J., dissenting.Appeal from Circuit Court, Cook County; George Fred Rush, judge.

Orr, Vail, Lewis & Orr and Simon Herr, all of Chicago (Warren H. Orr and Loren E. Lewis, both of Chicago, of counsel), for appellants.

McNab, Holmes & Long, of Chicago (Allan W. Cook, of Chicago, of counsel), for appellee.

WILSON, Justice.

The plaintiff, Greenlee Foundry Company, filed its complaint in the circuit court of Cook county, seeking to enjoin the defendantBorin Art Products Corporation and certain other defendants from constructing a switch-track along Fourteenth street in the town of Cicero, and for a mandatory injunction to compel the defendants to remove part of said switchtrack already laid.

The plaintiff, Greenlee Foundry Company, is a corporation engaged in the manufacturing business and an owner of property extending along Fourteenth street from the Baltimore and Ohio Chicago Terminal Railroad Company's right of way to Forty-seventh avenue, a distance of practically one complete block.The property of the plaintiff is bounded on the east by the railroad right of way, on the south by Fourteenth street and on the west by Forty-seventh avenue.On the south side of Fourteenth street and opposite the property of the plaintiff, is the property of Taylor Forge and Pipe Works which occupies a corresponding position on the south side of Fourteenth street.The contemplated switch-track would extend, if completed, from the right of way of the Baltimore and Ohio Chicago Terminal Railroad Company to the property of the defendants, located at Forty-seventh avenue and Fourteenth street, two intersecting streets in the town of Cicero.The defendants rely upon a certificate of convenience and necessity issued by the Illinois Commerce Commission and an ordinance of the town of Cicero, together with the consent of the Taylor Forge and Pipe Works, to use that part of Fourteenth street, which represents the easement which the Taylor Forge and Pipe Works has to the street proper, originally dedicated for street purposes, but the fee to which belongs to the aforesaid company.In the year 1923, a corporation known as the Limits Industrial Railroad Company undertook to lay a similar switch-track down Fourteenth street under the power granted it by the Illinois Commerce Commission in a certificate of convenience and necessity similar to that involved in this case and, also, by reason of the authority of an ordinance granted by the town of Cicero similar to that granted to the defendants in the present proceeding.The Limits Industrial Railroad Company filed a petition in the superior court of Cook county, seeking to condemn for its right of way a strip of land 17 feet wide over and along Fourteenth street from the Baltimore and Ohio Chicago Terminal Railroad Company's main track to the property involved in this case.The trial was had and the damages assessed.There were several defendants and among others the Greenlee Foundry Company and the American Spiral Pipe Works.The latter company prayed an appeal to this court, which is reported in the case of Limits Industrial Railroad Co. v. American Spiral Pipe Works, 321 Ill. 101, 151 N.E. 567, 569.The question as to the power of the Illinois Commerce Commission to issue its certificate of convenience and necessity under the circumstances in that case, as well as the validity of the ordinance relied upon, was given full consideration, and it was held that the Illinois Commerce Commission had no power to issue such an order inasmuch as the track was not for a public purpose and the commission had no right to issue an order in favor of a private enterprise.The court in its opinion said: ‘The terminal company could not have condemned the land either of the foundry company or the pipe works for a track from its railroad to 10 acres in question for the exclusive use of the owners of the tract, for such a track would have been a mere spur track of the terminal company for a wholly private use [Citations].’The judgment of the trial court in that case was reversed and remanded with directions to dismiss the petition.Later, the Limits Industrial Railroad Company again undertook to and did lay a track along Fourteenth street from the Baltimore and Ohio Chicago Terminal Railroad to the property involved in that case, and which is identical with the property involved here.This track passed over and along Fourteenth street, a public street in the town of Cicero, and in front of and adjacent to the property of the Greenlee Foundry Company, which brought a suit in ejectment, seeking to compel the Limits Industrial Railroad Company to remove its tracks from that portion of Fourteenth street in the town of Cicero extending along Fourteenth street and adjacent to the property of the plaintiff.Greenlee Foundry Co. v. Limits Industrial Railroad Co., 354 Ill. 11, 187 N.E. 805.As was stated by the opinion in that case the tracks were built between the hours of 6 o'clock P.M. on Saturday night and 8 o'clock on the following Monday morning.The Limits Industrial Railroad Company again relied upon the power given it by the Illinois Commerce Commission under a certificate of convenience and necessity and an ordinance of the town of Cicero authorizing it to lay the tracks over and along Fourteenth street.The question involved in that case appears to have been whether the street was created by virtue of a statutory or common-law dedication, and this court arrived at the conclusion, from the facts in that case, that it was a common-law dedication and the fee-simple title to the street did not pass to the municipality and the judgment was reversed with directions to enter a judgment in favor of the Greenlee Foundry Company.

The rights of the Borin Art Products Corporation and the other defendants who have joined in this appeal are in no way different from that of the Limits Industrial Railroad Company as pointed out in the two prior decisions.Consequently, it must be held in accordance with the previous adjudication of this court in Limits Industrial Railroad Co. v. American Spiral Pipe Works, supra, that the purpose is purely a private purpose and the certificate of convenience and necessity issued by the Illinois Commerce Commission is unavailing.Certain cases cited by counsel for the defendant to the effect that a railroad company has a right to build a spur-track to the property of others for a public purpose are without force inasmuch as the facts found in the cited case have negatived that position.This being a private purpose it necessarily follows that the town of Cicero had no power to pass an ordinance authorizing the use of the street for a purpose purely private in its character.Gerstley v. Globe Wernicke Co., 340 Ill. 270, 172 N.E. 829;Chicago, Rock Island & Pacific Railway Co. v. People, 222 Ill. 427, 78 N.E. 790;Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91, 50 N.E. 256,40 L.R.A. 621.Where a street has been dedicated by a common-law dedication the fee remains in the property owners abutting the street but its use is dedicated to the city in trust for street purposes only.The building of a railroad switch-track upon and along such a street would create an obstruction which would be in violation of the property rights of owners abutting upon said street.Nor would it make any difference because of the fact that it was built upon one side of the street instead of down the middle of said thoroughfare.The duty of the city is as to the whole street and not as to a portion under a common-law dedication.Ginter-Wardein Co. v. City of Alton, 370 Ill. 101, 17 N.E.2D 976;Gerstley v. Globe Wernicke Co., supra.

It is earnestly contended by counsel for the defendants that the plaintiff has no right to equitable relief by injunction but that it should be relegated to its damages under a common-law action.This, however, is not the law.This court in the case of Ginter-Wardein Co. v. City of Alton, supra[370 Ill. 101,17 N.E.2d 979], says: ‘It is urged that the plaintiff should be remitted to an action in damages rather than be permitted pursue its remedy by injunction.This argument would presuppose the validity of the ordinance because if the ordinance is invalid, as we find it to be, then it purports to authorize an unlawful obstruction in a public street which would be a nuisance per se.People v. Wolper, 350 Ill. 461, 183 N.E. 451;Stephens v. Chicago, Burlington & Quincy Railroad Co., 303 Ill. 49, 135 N.E. 68;Field v. Barling, 149 Ill. 556, 37 N.E. 850,24 L.R.A. 406, 41 Am.St.Rep. 311;Gerstley v. Globe Wernicke Co., supra;Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91, 50 N.E. 256,40 L.R.A. 621.The power of a court of equity to enjoin the obstruction of a highway has long been recognized and sustained.Green v. Oakes, 17 Ill. 249;Nelson v. Randolph, 222 Ill. 531, 78 N.E. 914.’

An examination of the record discloses that the Baltimore and Ohio Chicago Terminal Railroad Company is itself not attempting to lay this track as a spur-track to be used as part of its system.While it does appear from the record that this railroad company agreed to furnish service after the track in question had been laid and connections made, nevertheless, this effort to lay a switch-track is not by any legally organized railroad company operating under the laws of the State.Under all the circumstances, as disclosed by the record, we are of the opinion, based...