Hickey v. the Chicago & Western Ind. R.R. Co.

• Decision Date: 31 March 1880
• Citation: 6 Ill.App. 172,6 Bradw. 172
• Court: United States Appellate Court of Illinois
• Parties: JOHN HICKEY ET AL.v.THE CHICAGO & WESTERN INDIANA RAILROAD COMPANY ET AL.

6 Ill.App. 172

6 Bradw. 172

JOHN HICKEY ET AL.

v.THE CHICAGO & WESTERN INDIANA RAILROAD COMPANY ET AL.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding. Opinion filed March 29, 1880.

Mr. CHARLES H. MORSE, for appellants; that any ordinance is void which delegates to others powers which have been delegated by the legislature to the city council, cited Foss v. City of Chicago, 56 Ill. 354; E. St. Louis v. Wehrung, 50 Ill. 28; Lyon v. Jerome, 26 Wend. 585; Clark v. Washington, 12 wheat, 40; Coffin v. Nantucket, 5 Cush. 269; Buggles v. Nantucket, 11 Cush. 433; Municipality, No. 3 v. Ursuline Nuns, 2 La. An. 611; Thompson v. Schermerhorn, 4 N. Y. 92; 9 Barb. 152; 4 Cush. 433; Dillon on Mun. Corp. 180.

The ordinance being void, the construction or operation of the railroad within the city is a public nuisance: 2 Bouv. Law Dic. 245; 3 Black. Com. 216; Washburn on Easements, 2 C. & P. 485; 5 Esp. 217; Wahle v. Rheinbach, 76 Ill. 322; Cleveland v. Citizens' Gas Light Co. 5 C. E. Green, 205; Russ v. Butler, 4 C. E. Green; Springfield v. Conn. R. R. Co. 4 Cush. 71; Commonwealth v. Nashua & Lowell R. R. Co. 2 Gray, 56; Commonwealth v. Old Colony R. R. Co. 14 Gray, 93; 1 Haw. P. C. 197; 1 Strange, 686; 2 Chitty's Cr. Law, 607.

Where a nuisance is threatened, the remedy is by injunction: Dunning v. City of Aurora, 40 Ill. 481; Francis v. Schoelkopf, 53 N. Y. 155; Pierce v. Dart, 7 Cow. 609; Commonwealth v Old Colony R. R. Co. 14 Gray, 93; Commonwealth v. Nashua, etc. R. R. Co. 2 Gray, 56; Wahle v. Rheinbach, 76 Ill. 322; Bliss v. Kennedy, 43 Ill. 67; Town of Lake View v. Letz, 44 Ill. 81; Kerr on Injuctions, 339; Waterman's Eden on Injunctions, 259; Wood on Nuisance, 812.

An injunction will be granted to prevent a railroad from exceeding its powers: Cobb v. Ill. & St. L. R. R. Co. 68 Ill. 233; Dun River Nav. Co. v. North M. R. R. Co. 1 Eng. R. Cas. 135; Hyde v. G. W. R'y Co. 1 Eng. R. Cas. 567: Sandford v. Railway Co. 24 Penn. 378; Gordon v. P. W. & B. R. R. Co. 3 Whar. 502; Morehead v. Little Miami R. R. Co. 17 Ohio 340; Pullman v. Mayor of New York, 49 Barb. 57; Oakey v. Trustees, 6 Paige's Ch. 262; Milhan v. Sharp, 15 Barb. 193; Dillon on Mun. Corp. § 561.

An injunction will be granted to prevent a multiplicity of suits: Swift v. Larrabee, 31 Conn. 225; Crews v. Burcham, 1 Black. 352.

The bill is not multifarious: Fellows v. Fellows, 14 Cow. 682; Ward v. Duke of Northumberland, 2 Ansth. 469; Story's. Eq. Pl. § 284.

Mr. HENRY CRAWFORD, for appellees; that the bill of complaint is multifarious, cited Hudson v. Madison, 12 Sim. 416; Hinchman v. Patterson, Horse R'y Co. 17 N. J. Eq. 82; Story's Eq. Pl. §§ 279, 554.

The railroad company was seeking to exercise the right of eminent domain, and a court of equity cannot interfere with condemnation proceedings when those interested are before the court: C. R. I. & P. R. R. v. Town of Lake, 71 Ill. 333; Dunham v. Hyde Park, 75 Ill. 371; Aurora R. R. Co. v. Miller, 56 Ind. 88; Cal. Pacific R. R. Co. v. Cent. Pacific R. R. Co. 47 Cal. 549; Deidricks v. N. W. U. R. R. Co. 33 Wis. 219.

An owner whose property is not physically appropriated or injured, cannot enjoin or recover damages for injuries merely consequential: Stetson v. C. & E. R. R. Co. 75 Ill. 74; Patterson v. C. D. & V. R. R. Co. 75 Ill. 588; Stone v. F. P. & N. W. R. R. Co. 68 Ill. 394; C. B. & Q. R. R. Co. v. McGinness, 79 Ill. 269.

The consent of the city is a mere license: Chicago City R'y Co. v. The People, 73 Ill. 541; W. D. R'y Co. v. Met. R'y Co. 87 Ill. 317.

Complainants cannot raise the question of validity of the ordinance in this proceeding: Yates v. Batavia, 79 Ill. 500.

The judgment of the railroad company as to the location of its route, when exercised in good faith and not oppressively, cannot be controlled by other authority: C. B. & Q. R. R. Co. v. Wilson, 17 Ill. 123; C. R. I. & P. R. R. Co. v. Joliet, 79 Ill. 25; C. R. I. & P. R. R. Co. v. Lake, 71 Ill. 333; Marsh v. F. P. & N. W. R. R. Co. 64 Ill. 414; Bestor v. Wathen, 60 Ill. 138; St. L. J. & C. R. R. Co. v. Mather, 71 Ill. 592.

The law does not require any precise location: Heuline v. The People, 81 Ill. 269; Chamberlain v. C. B. & Q. R. R. Co. 84 Ill. 338.

The control of this question is left with the city council, and the court cannot annul its legislative act: Mason v. Shawneetown, 77 Ill. 337; Bond v. City of Newark, 10 N. J. Eq. 377; Brush v. Carbondale, 78 Ill. 74; Chicago Packing Co. v. Chicago, 88 Ill. 225.

The court will not interfere on behalf of one who claims relief not through equities of his own, but of other parties, who do not themselves insist upon them: Att'y Gen. v. U. K. Elect. Tel. Co. 30 Beat. 287; Roberts v. Bozon, 3 L. J. 113; Kerr on Injunctions, 207.

The wrong is a public one, and must be redressed by a public prosecution: Fall River I. W. Co. v. O. C. & F. R. R. R. 5 Allen 223; Bigelow v. Hartford Bridge Co., 14 Conn. 565; Dunning v. Aurora, 40 Ill. 481; Bliss v. Kennedy, 43 Ill. 67; Lake View v. Letz, 44 Ill. 81.

MCALLISTER, J.

This is an appeal from the decree of the circuit court of Cook county, sustaining a demurrer to, and dismissing out of court for want of equity, appellant's bill in equity, brought by them as the owners of real estate in the city of Chicago about to be taken or specially damaged thereby; to restrain by injunction the Chicago & Western Indiana Railroad Company and others from constructing a railroad, to be operated by steam power, over and near said lands within the city of Chicago; the bill showing that said railroad company was incorporated under the general railroad act of 1872, and claims the right to construct and operate such road in said city under the provisions of said act, and an ordinance of the city council of Chicago passed Sept. 8, 1874, which latter upon grounds stated in the bill is alleged to be null and void.

The principal questions are, whether said railroad company possessed the power to construct said road in the city, by virtue of said statute. If not, then, whether it was conferred by said ordinance; the ultimate question being, whether the act threatened to be done under claim of right, was not in fact and in law, without or beyond the legal powers of said railroad corporation to do.

These questions will be considered in their natural order.

Whether such a power of running into any incorporated city or village, and establishing its terminus therein at its own pleasure, is given to it by the general railroad act, is a question which may be disposed of in few words.

It is true, Sec. 20 (R. S. 1874, p. 803) confers upon each railroad company organized under that act, authority to select its own route, to lay out its road, not exceeding one hundred feet in width, and to construct the same. This power carries with it as a necessary incident, that of fixing the terminal points, and if there was no limitation in the act, the railroad company might as a general rule, establish such points anywhere, according to its discretion. But the same section contains the proviso: “That nothing in this act contained shall be construed to authorize the construction of any railroad upon or across any street in any city, or incorporated town or village, without the assent of the corporation of such city, town or village.” This proviso is, in terms, a restraint upon the powers of such corporation to construct its railroad where it pleases; for our common knowledge teaches us that no railroad could be proceeded with any considerable distance in a city, without coming to a street. So that proviso operates not only as a limitation of powers, but as a practical exclusion of such railways from incorporated cities, except upon the condition of obtaining the consent thereto, not of some of the officers, executive or ministerial, but of the corporation of such city; which can only be through the action of the city council within the powers conferred upon that body.

Inasmuch as the general railroad act contains no provision as to how such consent is to be obtained, but impliedly authorizes the construction of a railroad within any incorporated city, when, where and in such manner as the corporation of such city shall prescribe; the provisions of the general railroad act must, in this respect, be taken to be in pari materia with those of the general statute for the incorporation of cities and villages, passed at the same session, though at a date later than that of the railroad act; and this brings us to the second question, whether the ordinance of Sept. 8th, 1879, purporting to give such consent to the railroad company in question, was a valid exercise of the powers conferred and the duties imposed upon the corporation of Chicago, acting under and governed by the provisions of the general incorporation act of 1872.

Section 62 of the last mentioned act (R. S. 1874, p. 218) contains definite specifications of all the powers conferred upon the city council, and winds up by the following: “To pass all ordinances, rules, and make all regulations, proper or necessary, to carry into effect the powers granted, with such fines or penalties as the city council shall deem proper; provided no fine or penalty shall exceed $200, and no imprisonment shall exceed six months.” Specification 7 gives to the council the power to lay out, establish, open, alter, widen, extend, grade, pave, etc., streets, alleys, avenues, sidewalks, etc., and vacate the same. 9. To regulate the use of the same. 10. To prevent and remove encroachments or obstructions upon the same. 24. “To permit, regulate, or prohibit the locating, constructing or laying a track of any horse railroad in any street, alley, or public place; but such permission shall not be for a longer time than twenty years.” These provisions all relate to the streets, alleys, etc., and confer a plenary power of control, subject to the limitation...