Hill v. St. Louis & N.E. Ry. Co.

• Court: Illinois Supreme Court
• Writing for the Court: HAND
• Citation: Hill v. St. Louis & N.E. Ry. Co., 243 Ill. 344, 90 N.E. 676 (Ill. 1910)
• Decision Date: 03 February 1910
• Parties: HILL et al. v. ST. LOUIS & N. E. RY. CO.

243 Ill. 344

90 N.E. 676

HILL et al.

v.ST. LOUIS & N. E. RY. CO.

Supreme Court of Illinois.

Dec. 22, 1909.

Rehearing Denied Feb. 3, 1910.

Error to Circuit Court, Madison County; Charles T. Moore, Judge.

Suit by F. Louis Hill and others against the St. Louis & Northeastern Railway Company. There was a decree for complainants, and defendant brings error. Reversed and remanded.C. W. Terry (H. M. Steely and George W. Burton, of counsel), for plaintiff in error.

E. B. Glass, E. G. Hill, and C. H. Burlon, for defendants in error.

This was a bill in chancery filed in the circuit court of Madison county by F. Louis Hill and 19 other persons owning real estate abutting upon Hillsboro avenue, in the city of Edwardsville, against the St. Louis & Northeastern Railway Company, for an injunction to restrain defendant from hauling freight in car load lots upon Hillsboro avenue, in said city. After a demurrer was overruled to the bill, an answer and replication were filed, a trial was had before the court, and a decree was entered granting a perpetual injunction restraining the defendant from transporting over said Hillsboro avenue freight of any kind or character, except such freight as is transported by express companies, and then only in regular passenger cars or cars resembling passenger cars. The court having certified that the public interest required that the validity of the municipal ordinances hereinafter referred to should be passed upon by this court, the defendant has sued out a writ of error from this court to review said decree.

It appears from the record: That the plaintiff in error is a corporation organized under the general railroad act of this state. That the city council of the city of Edwardsville, on the 2d day of August, 1904, passed an ordinance known as ‘ordinance No. 184.’ authorizing the St. Louis & Springfield Railway Company, its successors and assigns, to whose rights the plaintiff in error has succeeded, to construct an interurban railroad through said city of Edwardsville, which, in part, was to pass over Hillsboroavenue, in said city; the requisite number of abutting owners upon Hillsboro avenue having given the statutory consent to the passage of said ordinance. That section 2 of said ordinance reads as follows: ‘It is expressly provided that no freight of any kind or character shall be transported in any interurban cars, except such freight as is transported by express companies. The cars in which such freight is transported shall be either the regular passenger cars of said interurban railway or cars resembling such passenger cars in appearance, as nearly as practicable.’ That in pursuance of the terms of said ordinance the railroad tracks of the plaintiff in error were laid in Hillsboro avenue, and it was operating cars upon said tracks. That after the passage of ordinance No. 184 the city council passed a resolution permitting plaintiff in error for a limited time to haul all classes of freight cars except hogs in stock cars and cars containing explosives, such as dynamite and nitroglycerin, over its tracks passing through the city of Edwardsville. And that on the 23d day of July, 1906, the city council passed an ordinance known as ‘No. 235,’ whereby section 2 of ordinance No. 184 was amended by adding thereto the following: ‘Provided, however, that between the hours of ten o'clock at night and six o'clock in the morning the said railway company, its successors and assigns, may have the right to haul materials and freight of a general character and bulk over and upon the streets named in section 1 of said ordinance No. 184 for the construction and operation of the line of railway of the St. Louis & Northeastern Railway Company, including its power plant and the power plant of the Edwardsville Light & Power Company, and their respective successors and assigns, and for such other public gas, heating and light or power plants as have been heretofore authorized by the city of Edwardsville, that may be located and operated within the city limits of the city of Edwardsville, Illinois.’ It also appears that the defendants in error have not given the statutory consent to the passage of any ordinance for the construction of an interurban railroad in Hillsboro avenue since the passage of ordinance No. 184. It further appears that subsequent to the passage of said resolution and ordinance No. 235 the plaintiff in error has been hauling, during the nighttime, freight in car load lots over its tracks located in Hillsboro avenue. The position of the defendants in error is that said resolution and said ordinance No. 235 are void, and that the plaintiff in error was unlawfully hauling freight cars over its tracks located in Hillsboro avenue, which was a residence street, in violation of the terms of ordinance No. 184, and that it should be enjoined, at their suit, from so doing.

HAND, J. (after stating the facts as above).

The first question which arises for consideration in this case is: Has a court of equity power, upon a bill filed by an abutting owner, to enjoin a railroad company from operating its railroad in a public street of a city, the title to which is in the city, where the railroad company has been granted power by the city council to operate its road in said street, on the ground that the railroad is violating the ordinance under which it has been authorized to construct and operate its road, or on the ground that the resolution or ordinance under which the road was constructed and operated is void?

This court has repeatedly held that an injunction will not be granted at the suit of an abutting property owner to restrain the construction or operation of a railroad in a street of a city which has been authorized by the city council. Moses v. Pittsburgh, Ft. Wayne & Chicago Railroad Co., 21 Ill. 516;Murphy v. City of Chicago, 29 Ill. 279, 81 Am. Dec. 307;Stetson v. Chicago & Evanston Railroad Co., 75 Ill. 74; Patterson v. Chicago, Danville & Vincennes Railroad Co., Id. 588; Chicago, Burlington & Quincy Railroad Co. v. McGinnis, 79 Ill. 269;Peoria & Rock Island Railway Co. v. Schertz, 84 Ill. 135;Penn Mutual Life Insurance Co. v. Heiss, 141 Ill. 35, 31 N. E. 138,33 Am. St. Rep. 273;Corcoran v. Chicago, Madison & Northern Railroad Co., 149 Ill. 291, 37 N. E. 68;White v. Metropolitan West Side Elevated Railroad Co., 154 Ill. 620, 39 N. E. 270;Doane v. Lake Street Elevated Railroad Co., 165 Ill. 510, 46 N. E. 520,36 L. R. A. 97, 56 Am. St. Rep. 265;Stewart v. Chicago General Street Railway Co., 166 Ill. 61, 46 N. E. 765.

In Chicago, Burlington & Quincy Railroad Co. v. West Chicago Street Railroad Co., 156 Ill. 255, on page 273, 40 N. E. 1008, on page 1012 (29 L. R. A. 485), the court said: ‘Where the fee of the street is in the city, such damages as the abutting owner may suffer from the laying of a railroad track in the street are merely consequential, so far, at least, as they affect the property abutting on the street. In such case, as there is no physical taking of the land, injunction will not lie to enjoin the taking; the remedy being an action at law for damages.’

In Doane v. Lake Street Elevated Railroad Co., supra, the court said (page 519 of 165 Ill.,page 522 of 46 N. E. [36 L. R. A. 97, 56 Am. St. Rep. 265]): ‘The real ground upon which relief by injunction is denied in such cases is that, the use of the street being within the purposes for which it is laid out, and therefore a proper use, the right to occupy is properly a question between the defendant and the municipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public generally; the individual being left to his action for damages for any injury resulting to his property. He has no standing in equity on account of public injury or for the purpose of inflicting punishment upon the defendant for its wrongful acts. He can only invoke that jurisdiction in order to protect his property from threatened injury. His injury is a depreciation of the property, which is capable of being estimated in money and recoverable in an action at law. Therefore a court of equity will not interfere by injuncition.’

In Stewart v. Chicago General Street Railway Co., supra, it was said (page 63 of 166 Ill.,page 765 of 46 N. E.): ‘This court held, in Doane v. Lake Street Elevated Railroad Co., 165 Ill. 510 [46 N. E. 520,36 L. R. A. 97, 56 Am. St. Rep. 265], that an abutting lot owner on a street had no such an interest in the street that he could maintain a bill for injunction against the use of the street by a street railroad company, where such use was authorized by an ordinance.’ It is also held that, where the use of the street has not been legally authorized by the city, the suit for an injunction to restrain its use by the railroad company should be brought by the Attorney General or state's attorney or by the city.

In Doane v. Lake Street Elevated Railroad Co., supra, on page 521 of 165 Ill.,page 523 of 46 N. E. (36 L. R. A. 97, 56 Am. St. Rep. 265), it was said: ‘Where the use of the street has not been legally authorized, as held in McCartney v. Chicago & Evanston Railroad Co., 112 Ill. 611;Hunt v. Horse & Dummy Railway Co., 121 Ill. 638 [13 N. E. 176];Chicago, Burlington & Quincy Railway Co. v. City of Quincy, 136 Ill. 489 [27 N. E. 232]; and Metropolitan City Railway Co. v. City of Chicago, 96 Ill. 620-an information in chancery by the Attorney General or state's attorney on behalf of the people, or, as in the last-named case, a bill for injunction by the city, affords a proper and complete remedy. If, as contended, the abutting owner can also maintain a bill on the same ground-that is, that the building of the road is without the valid consent of the city-then the language in the Patterson Case, ‘and any such excess of authority in...