South Chicago City Ry. Co. v. Calumet Elec. St. Ry. Co.

• Decision Date: 14 February 1898
• Citation: 171 Ill. 391,49 N.E. 576
• Parties: SOUTH CHICAGO CITY RY. CO. v. CALUMET ELECTRIC ST. RY. CO.
• Court: Illinois Supreme Court

171 Ill. 391

49 N.E. 576

SOUTH CHICAGO CITY RY. CO.

v.CALUMET ELECTRIC ST. RY. CO.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from appellate court, First district.

Bill by the South Chicago City Railway Company against the Calumet Electric Street-Railway Company for an injunction. From a judgment of the appellate court (70 Ill. App. 254) affirming a decree sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

Charles M. Osborn and Samuel A. Lynde, for appellant.

Judson F. Going (Mann, Hayes & Miller, of counsel), for appellee.

Appellant began suit in the circuit court of Cook county, on the chancery side thereof, to enjoin appellee from operating its motors and cars over and upon certain crossings of its tracks, and to prevent appelleefrom constructing or putting in any further or other crossings over its tracks. The circuit court sustained a general demurrer to the bill, and dismissed it for want of equity, at the complainant's cost. The appellate court having affirmed that order, this appeal is prosecuted. 70 Ill. App. 254. The parties were street-railway corporations organized under the railroad corporation act of this state, operating street railways by electricity, using the overhead trolley system, in the south part of the city of Chicago; their lines crossing each other at one or more points. On the 1st day of December, 1892, they entered into a contract in writing, as follows: ‘Whereas, the Calumet Electric Street-Railway Company is entitled to cross with a double-track crossing, at grade, the tracks of the South Chicago City Railway Company at or near the junction of Commercial avenue and South Chicago avenue, and also at Ninety-Second street and Harbor avenue; and whereas, the party of the second part desires to construct a loop,forthe convenience of operation of its road, from its tracks on South Chicago avenue along Ninety-First street, and returning on Ninety-Third street, and, in order to construct said loop as an independent line, it would be necessary to cross the tracks of the party of the first part, lying on Commercial avenue, at Ninety-First street, and again at Ninety-Third street; and whereas, both parties believe that crossings of electric railroad tracks at grade are dangerous to the public traveling on such roads, respectively, as well as inconvenient, expensive, and dangerous to the companies operating them, and desiring to avoid any crossings of their roads at grade, except those above mentioned, the party of the first part is willing to grant to the party of the second part a right of use, to be exercised jointly with the use by the party of the first part, in the ordinary course of its business, for the purpose of completing and operating its said proposed loop, the west track, lying on Commercial avenue, between Ninety-First street and South Chicago avenue, upon the considerations, conditions, and limitations in said contract stated, and the party of the second part is willing to receive such rights in place and stead of crossings of said tracks, as had been proposed: Now, therefore, this agreement witnesseth, that upon the conditions, and in consideration of the premises, etc. [here follows the grant to the appellee of the right to use appellant's west track, in common with appellant, on Commercial avenue, between Ninety-First street and South Chicago avenue, with conditions, items, etc., for a period of 19 years from the 1st of January, 1893]; and said parties mutually agree to and with each other, and this contract is made upon the express condition, that with the exception of the crossings mentioned in the recitation of the contract, namely, at the junction of Commercial and South Chicago avenues, and at the junction of Ninety-Second street and Harbor avenue, no other crossings of one of the said railroad companies' roads over the other, or over their joint tracks, shall ever be made, constructed, or operated at grade, under any existing ordinance, or which may hereafter be granted, without the written consent thereto of the parties to this contract, their successors or assigns.’ The bill shows that appellee, after the making of the contract, obtained a license of the city of Chicago to build the necessary connection on Ninety-First street, and thereafter completed the loop, and continued its operation until December 22, 1895; that on November 11, 1895, the city of Chicago, by ordinance, granted the right to appellee, upon complying with certain conditions, to extend its lines over certain streets, and to cross at grade the tracks of appellant previously constructed, in 12 different and distinct places; that on November 22, 1895, appellee abandoned the connection with appellant's track at the intersection of Ninety-First street and Commercial avenue, and pursuant to the ordinance of November 11, 1895, but contrary to the terms of the contract, and under the protest of appellant, constructed a crossing at grade over the tracks of appellant at the intersection of Ninety-First street and Commercial avenue, and on December 26, 1895, in a similar manner, constructed a crossing at grade over appellant's tracks at the intersection of Ninety-Second and Erie avenue; that, by means of these crossings and connecting lines, appellee constructed a new loop, extending from its main track, at the intersection of South Chicago avenue and Ninety-First street, to Erie avenue, south on Erie avenue to Ninety-Third street, and west on Ninety-Third street to its main track, at about the intersection of South Chicago avenue and Commercial avenue, and ever since has continued to use this loop; that at various other times and places, in a similar manner, pursuant to the ordinance, appellee has constructed other crossings at grade with appellant's track. The prayer is that the contract between the parties of December 1, 1892, be adjudged and decreed in full force and effect, and that the defendant be enjoined from operating its motors and cars mover and upon each crossing of the tracks of the complainant described in the bill,...