Sanitary Dist. of Chicago v. Metro. West Side Elevated Ry. Co.

• Decision Date: 26 October 1909
• Citation: 241 Ill. 622,89 N.E. 800
• Parties: SANITARY DIST. OF CHICAGO v. METROPOLITAN WEST SIDE ELEVATED RY. CO. et al.
• Court: Illinois Supreme Court

241 Ill. 622

89 N.E. 800

SANITARY DIST. OF CHICAGO

v.METROPOLITAN WEST SIDE ELEVATED RY. CO. et al.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Circuit Court, Cook County; Julian W. Mack, Judge.

Bill by the Sanitary District of Chicago against the Metropolitan West Side Elevated Railway Company and others. Decree of dismissal, and complainant appeals. Affirmed.John C. Williams and William Beebe, for appellant.

W. W. Gurley, A. L. Gardner, M. H. Carter and Hopkins, Peffers & Hopkins (Frank J. Loesch, of counsel), for appellees.

The appellant, the Sanitary District of Chicago, filed its original bill of complaint in this cause in the circuit court of Cook county on the 7th day of August, 1908. The Metropolitan West Side Elevated Railway Company, the Aurora, Elgin & Chicago Railroad Company, and the city of Chicago were made defendants. The two last-named defendants filed general demurrers to the bill, and the MetropolitanRailway Company filed a general and special demurrer. On February 26, bill of complaint, and it was ordered by the bill fo complaint, and it was ordered by the court that the demurrers of the several defendants to the original bill stand to the amended bill. The demurrers of all the defendants were sustained by the court, and, the appellant electing to stand by its bill of complaint as amended, said bill was dismissed by the court, and the appellant has prosecuted this appeal.

It is alleged in the amended bill: That appellant is a municipal corporation organized and existing under the act of May 29, 1889, creating sanitary districts; that by said act it is granted power to provide for carrying off the drainage of said sanitary district by establishing and maintaining one or more channels, drains, ditches, and outlets for that purpose; that it could acquire, by purchase, condemnation, or otherwise, any and all real estate and personal property and right of way privilege, either within or without its corporate limits, that may be required for its corporate purposes; and that it is authorized to enter upon, widen, deepen, and improve any navigable or other waterway, canal, or lake. It is further alleged: That, in order to carry out the purposes for which it was organized and make effective the main channel by it constructed, it was necessary for it to widen and deepen the Chicago river, and also for the purpose of complying with the statute of the state of Illinois and obtaining as a minimum flow through its channel 300,000 cubic feet of water per minute; that the board of trustees of the complainant on May 20, 1903, passed an ordinance, by the terms of which the said board laid out and established a right of way for the deepening and widening of the said Chicago river between the south line of Madison street and the north line of Van Buren street, in the city of Chicago, and in order to make said improvements it was necessary to excavate certain premises hereafter described. It is further alleged: That complainant constructed a channel from Robey street, in the city of Chicago, to the city of Joliet, Ill.; that the Secretary of War gave permission to complainant to connect its said channel with the West fork of the South branch of the Chicago river; and that pursuant to said permission said connection was made, and since the 17th of January, 1900, the waters of the said Chicago river have flowed into said main channel and from thence into the Desplaines and Illinois rivers.

It is further alleged: That on the 9th of December, 1885, the Pittsburg, Ft. Wayne & Chicago Railway Company, being the owner of certain land in Chicago, Cook county, Ill., abutting upon the west side of the South branch of the Chicago river, by an instrument of that date duly executed, granted, bargained, and sold to the city of Chicago a certain part of said premises described in said instrument; that said instrument was duly recorded in the recorder's office of Cook county, Ill., on March 11, 1886. This instrument is set out in full in the bill, and recites, in substance: Whereas the first party, the Pittsburg, Ft. Wayne & Chicago Railway Company, a corporation of the state of Illinois, is possessed of certain real estate in the city of Chicago, county of Cook, and state of Illinois, abutting upon the west side of the South branch of the Chicago river; and whereas the second party, the city of Chicago, desires to secure from the first party a certain portion of said lands for the purpose of straightening the South branch of the Chicago river between Adams street and Van Buren street; and whereas, also, second party is about to construct a swing bridge over the said South branch of the Chicago river at Adams street where the same crosses said South branch, and desires to obtain from first party the right to construct, operate, maintain, and swing said bridge over certain land possessed by said first party abutting upon said South branch upon the west side thereof and lying on either side of Adams street where the same crosses the said South branch: Therefore the first party, in consideration of the payments and covenants stipulated to be paid and performed by the second party, grants, bargains, and sells to the second party certain land abutting on the west side of the South branch of the Chicago river lying on either side of Jackson street, the portion of said land on the south side of said Jackson street thus conveyed being 8,311 square feet, more or less, and the portion on the north side of said Jackson street being 1,742 square feet, more or less. Said conveyance is made for the purpose and object that the land may be excavated, and that the South branch of the Chicago river between Adams and Van Buren streets may be straightened to this extent. The first party retains the right to land vessels at the dock to be constructed by said first party after said excavation shall have been made, for the purpose of loading and unloading; but such use shall not interfere with the operation of said Adams street bridge or with the rights of second party in and to Jackson street, or with the free use of the river for the purpose of navigation. The first party grants to second party the right to erect and forever maintain, operate, and swing a bridge at Adams street, on the west side of the South branch of the Chicago river where Adams street crosses said river. It is recited that, as the land mentioned had been leased from the Pennsylvania Railroad Company, the consent, in writing, of this company to the agreement should be obtained as a condition precedent to the validity of the agreement. This consent was obtained and is set out and made a part of the agreement. The second party agrees, in consideration of the grants aforesaid, to pay to the said Pennsylvania Railroad Company, or to such person or corporation as may be designated, in writing, by such company, the interest on the sum of $30,000, at the rate of 4 per cent. per annum, provided the second party may at any time pay the whole of said principal sum of $30,000, or any part thereof. Upon the payment of said entire principalsum all further payments by said second party shall cease, and all rights granted by this agreement shall vest in said second party in perpetuity; but the riparian rights or easements retained by first party shall not be impaired. The right given to party of the second part to make the entire payment of the $30,000 shall be exercised within 20 years from the date of the agreement. The instrument is dated December 9, 1885.

It is further alleged in the bill that another contract was made between the city of Chicago and the Pittsburg, Ft. Wayne & Chicago Railway Company on June 28, 1889, which was duly recorded, and provided that said city should have the right to construct and operate a full-arm instead of a half-arm bridge at Adams steet, and that in accordance with said contracts said city of Chicago did construct swing bridges at Adams street and at Jackson street, which were and are connected with Canal street by viaducts, which extend over and across certain railroad tracks and buildings. It is further alleged that on the 7th of April, 1892, the city council of the city of Chicago passed an ordinance, which was duly accepted by the Metropolitan West Side Elevated Railroad Company, granting to such company permission and authority to construct, maintain, and operate an elevated railroad and branches. A copy of the ordinance is made a part of the bill and is set out in full. By section 1 of the ordinance permission and authority are granted to the Metropolitan West Side Elevated Railroad Company to construct, maintain, and operate, for a period of 50 years from and after the passage of the ordinance, an elevated railroad, with branches, etc., along and upon certain routes in the city of Chicago, which are, in part, as follows: First, for the main line of said railroad, commencing on or near to the east line of Fifth avenue, in the city of Chicago, at some point between the south line of Jackson street on the north and the north line of West Congress street (as it exists at the west line of Halsted street if produced, east to Fifth avenue) on the south, and running thence between said Jackson street on the north and the said line of Congress street so produced on the south, over, along, upon, and across such lots, lands, and property as the company now owns or hereafter may acquire, by lease, purchase, condemnation, or otherwise, to the South branch of the Chicago river; thence across said river by means of a bridge, as hereinafter provided. Fourth, the said company may cross the Chicago river, as provided in section 1, either by means of a new bridge hereby authorized to be constructed by it, upon such plans and in such manner as shall be approved by the commissioner of public works, or, at its option, by means of the existing bridge now erected at Van Buren street at the said place of crossing, and for that purpose the...