Russell v. Chicago & M. Electric Ry. Co.

• Decision Date: 26 October 1903
• Citation: 205 Ill. 155,68 N.E. 727
• Court: Illinois Supreme Court
• Parties: RUSSELL v. CHICAGO & M. ELECTRIC RY. CO. et al.

205 Ill. 155

68 N.E. 727

RUSSELL

v.CHICAGO & M. ELECTRIC RY. CO. et al. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, Second District.

Suit by Anna May Russell against the Chicago & Milwaukee Electric Railway Company and others. From a judgment of the Appellate Court (98 Ill. App. 347) modifying a judgment for defendants, complainant appeals. Reversed in part, and remanded, with directions.

Bowen W. Schumacher (Louis Zimmerman, of counsel), for appellant.

Wood & Oakley, for appellees.

RICKS, J.

This was a bill in chancery filed in the circuit court of Lake county on May 19, 1899, by Anna May Russell against the Chicago & Milwaukee Electric Railway Company and the North American Railway Construction Company, praying for a temporary injunction restraining the defendants from constructing an electric street railway and certain trestlework and from cutting trees and erecting telegraph poles in front of complainant's premises, upon what was known as Railroad avenue. The bill also asked that upon a final hearing said Chicago & Milwaukee Electric Railway Company be perpetually enjoined from the further construction of said proposed work, and from operating and maintaining a system of electric railways over said so-called Railroad avenue in front of complainant's premises, which alleged street in front of her premises complainant claimed to own, and that the defendants be required to remove the obstructions theretofore placed by them in said alleged street, and to restore the latter to its former condition. A temporary injunction was granted in accordance with the prayer of the bill. Afterwards, on June 7, 1899, the injunction, which had extended over the full width of the strip of land known as Railroad avenue, which was 66 feet, was dissolved as to the west 33 feet thereof, upon the defendants' giving bond in the sum of $5,000, conditioned for the payment of the amount of any judgment or decree or the award of any arbitrators that might be entered against them in favor of complainant for damages caused by the use of the west 33 feet of the said Railroad avenue opposite complainant's premises. Defendants having afterwards filed an answer to the bill, and complainant her replication thereto, a hearing was had, and on March 6, 1900, a decree was entered, from which an appeal was taken to the Appellate Court, and from the judgment affirming and reversing the decree in part this appeal has been perfected.

The evidence upon which the decree in this case is based is not incorporated in the record by means of a certificate of evidence, and consequently the facts recited in the decree must be taken as true. If the findings of the decree are sufficient, it must be sustained; if not, it must fall. The decree in this case was a very lengthy one, and contained findings on many different questions. The case turns largely upon the question whether said Railroad avenue is a street or highway, or whether the appellant is the owner of the title to the same. We will refer only to such of the findings as are necessary to make clear the grounds upon which we act in disposing of the case.

Is appears from the recitals of the decree that on the 7th day of June, 1873, Jacobs & Gurnell executed a plat subdividing into lots, blocks, streets, and avenues a portion of section 36, town 43, range 12, and of fractional section 13, town 43, range 13, in the county of Lake. The lands so subdivided adjoined the city of Highland Park on the south, and the plat was entitled as ‘South Highland Addition to Highland Park.’ The plat was acknowledged before a proper officer, and certified by the county surveyor of Lake county, and recorded in the office of the county recorder. The streets and avenues were shown on the plat to be 66 feet in width, and the length and width of the lots, as stated on the plat, extended to the middle of the streets and avenues, but the plat showed distinct boundary lines of the streets and avenues and of the lots. The plat showed the names of the different streets and avenues, and the numbers of the respective lots. The appellant on the 21st day of May, 1892, became the owner of lots 151, 152, and 153, which, as shown by the plat, abutted on a strip of land designated ‘Railroad Avenue’ on the plat. The former owner of the lots had erected thereon a two-story frame dwelling and a barn, both of which faced upon the said Railroad avenue, and are now occupied by a tenant of the appellant. Said Railroad avenue furnished the only means of ingress or egress to or from the lots, there being no alleys marked on the plat. The land adjoining Railroad avenue on the west is the right of way of the Chicago & Northwestern Railway, and is not included in the platted ground. The city of Highland Park extended its limits southward over a portion of the platted ground, so that the city limits passed along the north line of appellant's northernmost lot, being lot No. 151, but did not bring any part of either of said lots, or the street in front of them, within the corporate limits. The strip marked on the plat as Railroad avenue is a continuation of a street of the same name in the city of Highland Park, and said city improved a portion of said strip in that portion of the plat over which the city limits were extended, by grading the roadbed and laying a sidewalk. A sidewalk 4 feet in width had been constructed in 1892 by public contributions,-that is, by voluntary subscription by the property holders,-and has since been maintained on the east line of Railroad avenue, adjoining the west line of appellant's three lots; and also a bridge for foot passengers, in connection with said sidewalk, had been constructed across a ravine, by funds raised in the same manner as those provided for the walk. The town of Deerfield (the county of Lake being under township organization) built a culvert on said Railroad avenue about 110 rods south of appellant's lots. The ravine rendered Railroad avenue impassable for teams in the block on which appellant's lots abutted. The passenger depot of the Chicago & Northwestern Railway Company was on Railroad avenue, about 500 feet south of appellant's lots. Access to her lots was obtained from the south by means of Railroad avenue. In front of her lots, and up to the ravine at the north end thereof, there was a natural growth of trees on said Railroad avenue. On the 27th day of June, 1891, the commissioners of highways of the town of Deerfield, by a resolution, accepted the following streets marked on said plat: A portion of Roger Williams avenue, which opens upon Railroad avenue 176 feet south of appellant's lots, and Judson avenue from the city limits of the city of Highland Park southward. The city of Highland Park, some time prior to 1899 (not more clearly fixed by the decree), accepted the territory within the plat to the north line of appellant's lots, including the strip of ground marked ‘Railroad Avenue.’

The court further found that up to the 9th day of May, 1899, said subdivision, as hereinbefore set forth, was a portion of the town of Deerfield, and that on said date said subdivision was annexed to the city of Highland Park, pursuant to the statutes of the state of Illinois in that behalf, and that on said 9th day of May, 1899, the city council of the city of Highland Park passed the ordinance of annexation, in and by which the city clerk was directed to prepare and file with the recorder of Lake county, Ill., a copy of the ordinance of annexation, together with an accurate map of said annexed territory, and that pursuant to said ordinance the clerk of said city did thereafter, on the 17th day of May, 1899, file with the recorder of Lake county, Ill., a copy of said annexation ordinance, and a map or plat of said premises, which said plae was prior to the filing thereof duly acknowledged by the mayor of said city, and that on said plat appear the streets, avenues, and lots in precisely the same form as in plat of South Highland additionto Highland Park, and two ordinances of the city of Highland Park, passed and approved July 14, 1899, and August 1, 1899, respectively accepting, by name, certain streets in the annexed territory of Ravinia, but not including in either of said ordinances said so-called Railroad or Railway avenue. The court further found that the appellee railway company was incorporated under the laws of the state, and had authority to build, operate, and maintain a street railway; that on the 1st day of March, 1899, it petitioned the board of supervisors of the county of Lake to grant it the right of way over the strip of ground marked on the plat as Railroad avenue, from the south line of the corporate limits of the city of Highland Park (which at that time was at the north line of appellant's lots) to the southern terminus of said avenue; that the petition was accompanied by a petition of the requisite number of property owners, and was granted by said board; that under color of this grant said railway company, through the appellee construction company, entered upon said Railroad avenue, and began the construction of its road there, including an embankment and a bridge in the avenue across the ravine at the north end of appellant's property.

The block in which appellant's property is situated is bounded on the north by Marsham street, on the east by Judson avenue, on the south by Roger Williams avenue, and on the west by Railroad avenue. There is no alley through the block, and there are lots belonging to other persons to the north and south of her, so that there is no access to her property, other than over Railroad avenue. As to the contour and the lay of the street in front of appellant's property, the decree finds that said lots and street gradually decline from Roger Williams avenue north to a point 100 feet north of the south line of lot 151, which is appellant's northernmost lot, at an average grade of from 2 to 2 1/2 feet to the 100 feet,...