People ex rel. Mather v. Marshall Field & Co.

• Decision Date: 17 February 1915
• Docket Number: No. 9743.,9743.
• Citation: 107 N.E. 864,266 Ill. 609
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. MATHER v. MARSHALL FIELD & CO. et al.

266 Ill. 609

107 N.E. 864

PEOPLE ex rel. MATHER

v.MARSHALL FIELD & CO. et al.

No. 9743.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Circuit Court, Cook County; John P. McGoorty, Judge.

Information in the name of the People, by Maclay Hoyne, State's Attorney, on relation of Stephen T. Mather against Marshall Field & Company and others, to enjoin defendants' use and occupation of certain passageways or tunnels under Washington Street in the City of Chicago, etc. From a decree dismissing the information, relator appeals. Affirmed.

Maclay, Hoyne, State's Atty., and George P. Merrick, both of Chicago, for appellant.

Wm. H. Sexton, Corp. Counsel, and Joseph F. Grossman, both of Chicago, for appellee City of Chicago.

Tolman & Redfield, of Chicago (John P. Wilson and Edgar B. Tolman, both of Chicago, of counsel), for Marshall Field & Co.

CARTER, J.

This is an appeal from a decree of the circuit court of Cook county dismissing for want of equity an information brought in the name of the people by Maclay Hoyne, state's attorney, upon the relation of Stephen T. Mather, to enjoin the use and occupation of certain passageways or tunnels under Washington street, in the city of Chicago, by Marshall Field & Co., and to restrain the city of Chicago from permitting the subsurface of Washington street to be so used, and to have a certain ordinance granting such use declared null and void. The trial court certified that, the validity of a municipal ordinance being involved, the public interests required an appeal directly to this court.

The ordinance in question was passed by the city council of Chicago on November 18, 1912. It provides, among other things, as follows:

‘Section 1. That for the purpose of connecting the basements of the building now standing or hereafter to be erected upon block thirteen (13) in Fort Dearborn addition to Chicago, with the basement of the building now standing or hereafter to be erected upon lots one (1), two (2) and three (3) in block fourteen (14), Fort Dearborn addition to Chicago, and under the east half of Holden court, adjoining said lots one (1), two (2) and three (3), permission and authority be and the same are hereby given and granted to Marshall Field & Co., a corporation, its successors and assigns, (hereafter designated as the grantee,) to excavate, use and occupy a tunnel or passageway under the surface of Washington street, extending from the north to the south curb line thereof, the center line of which tunnel or passageway shall be midway between the west line of Wabash avenue and the east line of Holden court. Said tunnel or passageway shall not exceed eighty (80) feet in width nor fifteen (15) feet in depth below the grade of the street there. That for the purpose of connecting the subbasements of the buildings now erected or hereafter to be erected on the aforementioned premises, permission and authority are also given and granted to said grantee to excavate, use and occupy a tunnel or passageway under the surface of Washington street from the north to the south curb line thereof, the center line of which tunnel or passageway shall be ten (10) feet east of the center line of Holden court extended across said Washington street. Said tunnel or passageway shall not exceed twenty (20) feet in width nor fourteen (14) feet in height and shall not extend more than twenty-seven (27) feet below the level of the street there. The depth of said passageways shall be computed exclusive of the thickness of the pavement: Provided, however, that said tunnels or passageways shall not be used at any time for the sale of any goods or merchandise whatsoever.

‘Sec. 2. The permission and authority herein granted shall cease and determine twenty (20) years from and after the date of the passage of this ordinance, or may be revokedat any time prior thereto by the mayor, in his discretion, without the consent of the grantee herein named. This ordinance shall also be subject to amendment, modification or repeal at any time without the consent of the said grantee, and in case of such repeal all the privileges herein granted shall thereupon cease and determine. In the event of the termination, revocation, amendment or modification of the authority or privileges hereby granted, by lapse of time, the exercise of the mayor's discretion or the exercise by the city council of the powers above reserved, the grantee, by the filing of the written acceptance hereinafter provided for, shall be understood as consenting that the city shall retain all money it shall have previously received from said grantee under the provisions of this ordinance, said money to be treated and considered as compensation for the authority, permission and privileges enjoyed from the date of the passage of this ordinance until such repeal.’

Section 3 provides that the city of Chicago shall be paid a certain compensation by Marshall Field & Co. for the first 10 years of said period, and for the last 10 years such compensation as may be determined by the city council of said city.

Section 4 provides that the work of putting in such tunnel shall be done in accordance with the plans signed by the building commissioner, commissioner of public works, and the fire marshal of said city, and under the supervision of the latter two of said officials.

Section 5 reads:

‘Sec 5. At the termination of the privileges herein granted, whether by lapse of time, revocation by the mayor or by amendment, modification or repeal by the city council, said grantee shall immediately vacate said Washington street and immediately remove therefrom all construction installed, under authority of this ordinance, below the surface of said street (including the filling up of the space beneath the street), and shall place the surface of the street in condition for use by the public at its own expense, without cost of any kind whatsoever to the city of Chicago; and in the event of the failure, neglect or refusal on the part of said grantee to comply with the provisions of this section of this ordinance the city of Chicago may proceed to remove the same and fill the space and charge the expense thereof to said grantee. Said grantee shall never set up any claim against the city of Chicago which would operate to extend its right to use said space beyond the date of termination of the privileges herein granted by lapse of time, revocation by the mayor or by amendment, modification or repeal by the city council.’

Section 6 provides that Marshall Field & Co. shall give a bond of $100,000 to the city of Chicago to secure the faithful performance by said company of the contract and to indemnify said city against all loss, damage, or expense of any kind under it.

Section 7 provides that before putting in the tunnel Marshall Field & Co. shall provide for the care and adjustment, under the direction of the commissioner of public works and to his satisfaction, of the sewers, water pipes, electric light conduits, and other public utilities in that portion of Washington street covered by the ordinance, at the expense of said company.

And section 8 provides that Marshall Field & Co. shall not prevent or delay any revocation of said ordinance by the mayor or city council by any action at law or in chancery.

The cause was heard by the chancellor on amended bill and answers. From the pleadings and proof introduced, it appears that the title to Washington street is in the city; that the subsurface of the street at the point in question is now, and has been for years, used for public utilities, including sewers, water pipes, gas mains, gas pipes, electric light wires, and conduits; that some 52,800 cubic feet of space are taken for said tunnels and they occupy under said street 4,800 square feet of superficial area; that the tunnels, at the time of the hearing below, were practically completedat a cost of about $70,000 and were then being used and occupied in accordance with the provisions of the ordinance; that the upper tunnel, situated halfway between Wabash avenue and Holden court, was 80 feet in width and 9 feet and 2 inches in height, the bottom being 15 feet below the surface of the ground; that the lower or subbasement tunnel, located substantially under the east half of Holden court if extended across Washington street, was 20 feet in width and 14 feet in depth the bottom being 27 feet below the surface of the street; that while said tunnels were being constructed, or thereafter, the grantee at its own expense, under the direction of the city officials and working with the officials of the various public utility companies affected, had changed the gas mains, gas pipe, electric light wires, telephone wires, conduits, etc., and placed them above the upper tunnel but below the surface of the street. It further appears from the record that under the supervision of the city authorities Marshall Field & Co. had changed the six-inch water pipe in the street, which theretofore was laid at grade about six feet below the surface at this point, so that it ran down one side of the upper tunnel and under and then up the other side, so that the water would run through the bend somewhat on the principle of a siphon. It further appears that, before these tunnels were constructed, Holden court at this point, where it crossed Washington street, was the summit of a sewer in that street, so that the sewage in the sewer east of Holden court would run towards Wabash avenue and the sewage in the sewer west of Holden court would run west to State street; that the grade, however, of the sewer at Holden court in either direction was very slight; that in constructing the upper tunnel Marshall Field & Co., under the supervision of the city, cut out the section of the sewer from Holden court to the east side of said upper tunnel and blocked or stopped the end of the sewer west of Holden court and the end of that part of the sewer remaining east of said upper tunnel, leaving that...