People ex rel. Rinne v. Blocki

• Decision Date: 16 June 1903
• Citation: 203 Ill. 363,67 N.E. 809
• Parties: PEOPLE ex rel. RINNE v. BLOCKI, Commissioner of Public Works, et al.
• Court: Illinois Supreme Court

203 Ill. 363

67 N.E. 809

PEOPLE ex rel. RINNE

v.BLOCKI, Commissioner of Public Works, et al.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Circuit Court, Cook County; Frank Baker, Judge.

Petition by the people, on the relation of William P. Rinne, against Frederick W. Blocki, commissioner of public works, etc., and another. Judgment for defendant, and relator appeals. Affirmed.Pinckney, Tatge & Abbott, for appellant.

Charles M. Walker, Corp. Counsel, and Michael F. Sullivan, Asst. Corp. Counsel, for appellee Blocki.

Wells & Kelly (Hollett, Tinsman & Sauter, of counsel), for appellee rush.

This is an appeal from a judgment of the circuit court of Cook county sustaining a demurrer to the amended petition filed in said court in the name of the people, on the relation of William P. Rinne, against Frederick W. Blocki, commissioner of public works of the city of Chicago, praying for a writ of mandamus commanding him, as such commissioner, to remove certain switch tracks from Wallace street, one of the public streets of the city of Chicago, laid therein by Jonathan Pettet and the Indiana Gravel & Sand Company. Samuel F. Rush filed a petition representing that he was interested in the maintenance of said switch tracks, and asked leave to be made a party defendant. Leave was given, and he joined in the general demurrer of Blocki to said petition. The petition alleged that the relator was a resident, taxpayer, and legal voter of the city of Chicago; that respondent Blocki was the duly appointed and acting commissioner of public works of said city; that under its ordinances it was the duty of said commissioner to take special charge and superintendence of the streets of said city; that on August 16, 1886, Jonathan Pettet was granted permission to lay a switch track in Wallace street, connecting the lumber yard of said Pettet with the railroad track of the Chicago & Western Indiana Railroad Company, then laid in said street, by the board of trustees of the town of Lake; that on June 18, 1889, said board of trustees also granted to the Indiana Gravel & Sand Company permission to lay tracks across said street to connect its yard with the main track of said Chicago & Western Indiana Railroad Company in said street; that the Indiana Gravel & Sand Company has ceased doing business, and the permit granted to it has inured to the benefit of Pettet; that the town of Lake, subsequent to the granting of said permits, was annexed to the city of Chicago, and said street is now within the corporate limits of said city and under its control; that the city council of the city of Chicago has declared said switch tracks to be a nuisance, and ordered their removal by said commissioner of public works, which, upon demand, he has refused to do.

HAND, C. J. (after stating the facts).

It is first contended that the court erred in permitting said Samuel F. Rush to become a party defendant. The petition for leave to become a party defendant, filed by Rush, was verified, and averred that he was a resident and citizen of the city of Chicago, and a taxpayer therein; that he was, and had been for over three years, an occupant, as tenant, of six lots and the buildings thereon; that the rear of said lots and buildings extended for 150 feet adjacent to and along the switch tracks mentioned in the petition for mandamus; that he had a lease on said premises until March 1, 1905, with the privilege of renewal upon the expiration of the term; that he was, and had been for three years, engaged in dealing at wholesale, in car-load lots, in potatoes, hay, grain, and other produce, upon said premises; that it was absolutely necessary that such products be delivered to him in car-load lots at said premises, and that he rented said lots because of the track facilities afforded by said switch tracks, which tracks provided the only way of delivering such products to said premises in car-load lots; that he used said tracks every day for receiving and discharging carload lots of produce, and that during the year just past he received over 500 cars upon such tracks; that the maintenance of such tracks was necessary to the carrying on of his business, and that their removal would render the said premises unfit for his use, destroy the value of his lease, and work irreparable injury to his business. Section 7, par. 7, c. 87, entitled ‘Mandamus' (Starr & C. Ann. St. 1896, p. 2682), provides: ‘If after the filing of any such petition, any person other than the original defendant shall appear to the court to have or claim any right or interest in the subject-matter, such person may be made a defendant, and may be summoned, and appear and plead, answer and demur in the same manner as if he had been made defendant to the original petition.’ Under the practice recognized in People v. Maxon, 139 Ill. 306, 28 N. E. 1074, 16 L. R. A. 178,People v. City of Chicago, 193 Ill. 507, 62 N. E. 179, 58 L. R. A. 833, and People v. City of Chicago, 193 Ill. 543, 62 N. E. 187, we are of the opinion the court did not err in permitting Samuel F. Rush to become a party defendant.

The main contention of appellant is that the permits to Pettet and the Indiana Gravel & Sand Company to lay switch tracks in Wallace street, and connect said lumber and gravel and sand yards, respectively, with the main track of the Chicago & Western Indiana Railroad Company in said street, were a diversion of said street from its public use to a private use, and that said permits were void. The street, at the time said permits were granted, was under the control of the board of trustees of the town of Lake, and under the power conferred upon that municipality by law it was authorized to allow the use of said street for any purpose not incompatible with the purpose for which it was established, and to allow a railroad track to be laid therein was not a use incompatiblewith the purpose for which it was established. In City of Quincy v. Bull, 106 Ill. 337, on page 349, it was said: ‘In this state there is vested in municipal corporations a feesimple title to the streets. Under the power of exclusive control over streets, it is very well settled by decisions of this court that the municipal authorities may do anything with, or allow any use of, streets which is no incompatible with the ends for which streets are established, and that it is a legitimate use of a street to allow a railroad track to be laid down in it. Moses v. Pittsburgh, Ft. Wayne & Chicago Railroad Co., 21 Ill. 515;Murphy v. City of Chicago, 29 Ill. 279, 81 Am. Dec. 307;Chicago & Northwestern Railway Co. v. People ex rel., 91 Ill. 251.’ In Truesdale v. Peoria Grape Sugar Co., 101 Ill. 561,Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 3 N. E. 448, and McGann v. People, 194 Ill. 526, 62 N. E. 941, it was held a municipality has authority to grant to private individuals the right to lay switch tracks in its streets with which to connect manufacturing plants located upon private property with the main track of a railroad company in said street, and that, when so laid, such switch tracks, in legal contemplation, become a part of the main track with which they are connected, and are public highways. In Truesdale v. Peoria Grape Sugar Co., supra, private individuals, owning property and carrying on business in the vicinity, sought to enjoin the defendants from laying a side track, under an ordinance of the city of Peoria, in the street in front of their own property to connect with the railroads in the street, and the point was made that the side track, although constructed under an ordinance of the city granting a license to lay it in a public street, when constructed, would be solely for the ‘convenience and benefit’ of the corporation constructing it. The court, on page 567, say: ‘This is a misapprehension of the law. Section 12, art. 11, of the Constitution, provides that ‘railways heretofore constructed or that may hereafter be constructed in this state are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under...