Mills v. Parlin
| Decision Date | 29 March 1883 |
| Citation | 106 Ill. 60,1883 WL 10183 |
| Parties | HENRY MILLSv.WILLIAM PARLIN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Fulton county; the Hon. S. P. SHOPE, Judge, presiding.
Mr. HORATIO M. JONES, for the appellant:
The Appellate Court erred in taking jurisdiction of the appeal, because the case involves a franchise, within the meaning of the act regulating appeals from the circuit courts. The right to use a public street for the purpose of operating a railroad over the same is a franchise. Chicago City Ry. Co. v. People, 73 Ill. 541; Chicago and Western Indiana R. R. Co. v. Dunbar, 95 Id. 571; Hurd's Stat. 789, sec. 89.
The city of Canton can not grant railroad charters, nor can it grant franchises, and this court never intended so to intimate in Truesdale v. Grape Sugar Co. 101 Ill. 561.
The grant of the city in this case was to Parlin, Orendorff & Co. It was a grant of a private railroad, to be operated by horses, for their own exclusive use. The ordinances granting this privilege are invalid, for want of power on the part of the city to pass them. The city holds the soil of its streets in trust for the purpose of streets, and it has no power to repudiate such trust.
The remedy by injunction sought by Mills is the only adequate remedy. If he can not obtain it he is without remedy.
Messrs. BARRERE & GRANT, for the appellees:
There is no claim that appellees are not perfectly solvent, and if appellant has sustained any damage he has ample remedy at law. The switch on Fifth street was placed there under an ordinance of the city, and is so connected with the main track of the Chicago, Burlington and Quincy Railroad Company as to form and become one of the switches of that company. That company is by ordinance authorized to use such track as a switch or side-track, and to operate the same with steam engines.
The injury complained of is common to all the owners of property abutting on Fifth street, therefore appellant can not enjoin the use of steam engines thereon. High on Injunctions, secs. 522, 533, 790; G. R. and I. R. R. Co. v. Heisel, 38 Mich. 69.
The decision of the Appellate Court holding the fee of the streets to be in the city, and that it has the power to give the right to lay down a railroad track in one of its streets, and operate steam engines thereon, is in harmony with the laws of the State and the prior decisions of this court. Truesdale v. Grape Sugar Co. 101 Ill. 561; Stetson v. C. and E. R. R. Co. 75 Id. 74; Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Id. 439; Patterson v. C. and E. R. R. Co. 75 Id. 588; Moses et al. v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 Id. 516; Peoria and Rock Island R. R. Co. v. Schertz, 84 Id. 135; Murphy v. Chicago, 29 Id. 278; C. and V. R. R. Co. v. The People, 92 Id. 170; Chicago R. R. Co. v. McGinnis, 79 Id. 269; Quincy v. Chicago, Burlington and Quincy R. R. Co. 92 Id. 21; Chicago and Northwestern Ry. Co. v. The People, 91 Id. 241; G. R. and I. R. R. Co. v. Heisel, 38 Mich. 69.
The bill in this case was brought by Henry Mills, against William Parlin, William J. Orendorff, William H. Parlin, and the Chicago, Burlington and Quincy Railroad Company, and was to enjoin defendants from running or operating steam engines to propel cars over a track laid by defendants in a street of the city of Canton, which switch or track connects with the railroad track of the Chicago, Burlington and Quincy Railroad Company. Complainant alleges his dwelling house is situated on the street in which the track is laid, and that the running of steam engines over such track or switch will be a great damage to his property, and will render it useless to complainant and his family, and uninhabitable as a residence. The fee of the street on which the track or switch complained of is laid, was and is in the city of Canton. Permission was given by ordinance duly enacted by the city council, to defendants to...
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