Lorie v. North Chicago City R. Co.

• Decision Date: 18 May 1887
• Citation: 32 F. 270
• Parties: LORIE v. NORTH CHICAGO CITY RY. CO. and others.
• Court: U.S. District Court — Northern District of Illinois

32 F. 270

LORIE v. NORTH CHICAGO CITY RY. CO. and others.

United States Circuit Court, N.D. Illinois.

May 18, 1887

Allan C. Story, Geo. W. Kretzinger, and James K. Edsall, for complainant.

Goudy &amp Green, for defendants.

GRESHAM J.

This suit was commenced by Nathan Lorie against the North Chicago Street-railroad Company, the North Chicago City Railway Company, and other corporations and certain individuals, to enjoin the defendants from constructing and operating a cable railway on Illinois street, between Wells and Clark streets on Clark street north of Illinois street; and in and through the La Salle street tunnel, in the city of Chicago. The questions which are now before the court arise upon the complainant's motion for a provisional injunction. The complainant owns a lot, and the buildings thereon, at the north-west corner of Clark and Illinois streets; his frontage being 50 feet on Clark street, and 80 feet on Illinois street. It is at this point that the railway passes from one street into the other.

The court should not thus reach out its strong arm unless the facts clearly call for such action. Even if the right to construct and operate the railway is not clear, the complainant is not entitled to the relief prayed for unless he has been, or will be, disturbed in the enjoyment of his property, for which he has no adequate remedy at law. The complainant has no other interest or right in the streets including the tunnel, than an easement in common with the public. His proprietary right does not extend to the middle of the street. The city owns the streets in fee. The complainant's property has not, therefore, been appropriated; nor is it proposed to appropriate any part of it for the use of the North Chicago Street-Railroad Company. No direct or physical injury can result to the complainant from the construction and operation of the railway in front of his premises. The constitution of Illinois declares that 'private property shall not be taken or damaged for public use without compensation. ' The damage, however, which the plaintiff will sustain, if any, by the construction and operation of the tracks over the streets in front of his property, will not be a damage, within the meaning of the constitution, for which compensation must be made in advance. The damage contemplated by the constitution is an injury resulting to the owner from an actual appropriation of his private property, and it may be that the taking of part only of a lot or parcel of land will entitle the owner to compensation in advance for the injury resulting thereby to the unappropriated part. Stetson v. Railroad Co., 75 Ill. 74.

If the complainant can show that the construction and maintenance of the tracks in front of his premises will result in special injury to him, -- not a mere injury which he will sustain in common with the public at large, -- his remedy will be at law for the special damage, and not by injunction. Osborne v Railroad Co., 5 Blatchf. 366; Currier v. Railway Co., 6 Blatchf. 487; Railroad Co. v. Prudden, 20 N.J.Eq. 530...