Ligare v. City of Chicago.

• Decision Date: 31 October 1891
• Parties: LIGARE v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

139 Ill. 46

28 N.E. 934

LIGARE

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from superior court, Cook county; JOHN P. ALTGELD, Judge.

This is a petition by the city of Chicago to condemn land under two city ordinances. The condemnation was ordered as prayed for. George A. Ligare, one of the owners of land sought to be taken, appeals. Reversed.

The first ordinance provides as follows: ‘Section 1. That, in consideration of the agreements hereinafter contained, the right is hereby granted to the Chicago, Madison & Northern Railroad Company, its lessees, successors, and assigns, to construct, maintain, and operate a railroad with two or more main tracks and necessary side or connecting tracks, turn-outs, switches, and appurtenances, over such lands as it now has, or may hereafter in any manner acquire, the right to lay tracks upon, and over, across, or along all intervening streets, alleys, and public grounds along and upon the following route. * * * Sec. 5. Whereas, an ordinance has been introduced and is now pending in the city council for the widening of Archer avenue, between Bushnell street and Sanger street by appropriating therefor the land on the south side of said avenue, lying north of the following described line, to-wit: * * * Now, in case said ordinance shall go into effect and said avenue is widened, permission and authority are hereby granted to the Chicago, Madison & Northern Railroad Company, its lessees, successors, and assigns, to lay down, maintain, and operate four railroad tracks, and to the Chicago & Alton Railroad Company, its lessees, successors, and assigns, to lay down, maintain, and operate two railroad tracks, on that portion of Archer avenue, when widened as aforesaid, lying between the two following lines, to-wit: One line north of, and nearly parallel to, and seventy (70) feet distant from, the south line of widened Archer avenue, as said line is above described; the other line north of, and nearly parallel to, the said described line, and one hundred and sixty (160) feet distant therefrom. The permission and authority granted in this section are upon the condition, however, that no steam railroad track shall be laid down or maintained on said Archer avenue, between Bushnell street and Sanger street, except between the two lines last above described; and upon the further condition that the cost and expense of procuring the land necessary for the widening of Archer avenue as aforesaid, and all damages occasioned thereby, and the cost of grading and paving the same, and also so much of the said street adjoining it on the north as shall be occupied by the tracks of the Chicago, Madison & Northern Railroad Company and the tracks of the Chicago & Alton Railroad Company, shall be paid for by the Chicago, Madison & Northern Railroad Company, and a special assessment for the aforesaid cost and expense may be levied solely on the property of said railroad company. And the said Chicago, Madison & Northern Railroad Company shall build, at its own expense, in conformity to plans to be approved by the commissioner of public works, along the south side of its roadway, the entire length of Archer avenue, which it shall traverse, a substantial brick or stone wall 12 feet in neight, with stone coping, which said company shall keep in good condition and repair, and shall also construct a sidewalk along the south side of said wall whenever the same shall be ordered by the municipal authorities of said city. Sec. 6. The rights and privileges hereby granted to the several railroad companies herein named in Archer avenue are subject to the rights and privileges therein of the Chicago City Railroad Company, and permission and authority are hereby granted, upon the completion of the widening of Archer avenue, as aforesaid, to the said Chicago City Railroad Company, if it elects so to do, to remove their tracks from their present location in that portion of Archer avenue so to be widened, and to relay them upon the south 70 feet of Archer avenue, as widened: provided, however, that said removal shall not be made until a permit therefor shall be obtained, and the proposed location of said tracks on said 70 feet has been approved by the commissioner of public works, and said tracks shall be relaid subject to the approval of the said commissioner. Such removal shall be a waiver and abandonment of the rights of said Chicago City Railway Company as to the portion of Archer avenue from which said tracks are removed. Sec. 7. All that portion of Ogden slip lying south of the north line of Archer avenue, as the same shall be widened as recited in section 5, shall be permanently filled with earth, and the cost of the said improvement shall be paid by the Chicago, Madison & Northern Railroad Company. * * *’

The second of said ordinances is as follows: ‘Section 1. That the portion of Archer avenue, lying between a point on the south line of said avenue 100 feet east of the east line of Bushnell street and the easterly line of Sanger street, be, and the same is hereby, ordered widened, as follows, viz.: By taking or appropriating therefor the land on the south side of said avenue lying north of the following described line. * * * Sec. 2. Any legal proceedings necessary to accomplish the widening of Archer avenue as aforesaid are hereby authorized, and the counsel to the corporation is hereby directed to file a petition in a court of competent jurisdiction in Cook county, Ill., in the name of the city of Chicago, praying that ‘the just compensation to be made for private property to be taken or damaged for said improvements or purpose specified in this ordinance shall be ascertained by a jury;’ and to file a supplemental petition in accordance with the provisions of section 53 of article 9 of an act of the general assembly of the state of Illinois entitled ‘An act to provide for the incorporation of cities and villages.’ Sec. 3. The improvement hereby ordered shall be made and the cost thereof paid for by a special assessment to be levied upon the property benefited thereby, to the amount that the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation, in accordance with article 9 aforesaid.'C. C. Bonney and R. S. Thompson, for appellant.

E. H. Gary, for appellee.

SCHOLFIELD, C. J.

It is, to our minds, clear that both ordinances before us in this case are but parts of a single and entire scheme. They were adopted on the same day, and the former expressly refers to, and is by its terms dependent upon, the adoption and enforcement of the latter; and it requires that the entire cost and expense of enforcing both ordinances, and all damages which may be adjudged against the city by reason of their being adopted and enforced, shall be paid by the railroad company. Moreover, the attempt to widen Archer avenue for the limited distance, and in the peculiar manner, described in the second ordinance is manifestly to meet a local want in that respect; and the first ordinance conclusively shows that that local want is space for laying down additional railroad tracks, and nothing else. It is also of some significance, as confirmatory of this view, that the petition for condemnation alleges that the second ordinance contemplates the closing and filling up of Ogden slip, and that can only be upon the assumption that the first ordinance is supplemental to the second; for Ogden slip is not mentioned or referred to,...