The City of Chicago v. the Chicago

• Decision Date: 20 November 1882
• Citation: 105 Ill. 73,1882 WL 10482
• Parties: THE CITY OF CHICAGOv.THE CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.
• Court: Illinois Supreme Court

105 Ill. 73

1882 WL 10482 (Ill.)

THE CITY OF CHICAGO

v.THE CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

Mr. FRANCIS ADAMS, and Mr. J. L. HIGH, for the appellant:

The time granted within which to complete the road was not a condition subsequent, but a conditional limitation, self executing, under which the license terminated absolutely upon the happening of the event named. 2 Washburn on Real Prop. 20, 24; 4 Kent's Commentaries, 127; 2 Blackstone's Commentaries, 155; Mills on Eminent Domain, sec. 58; N. Y., H. and N. R. R. Co. v. B. H. and E. R. R. Co. 36 Conn. 196; In re B. W. and N. R. R. Co. 72 N. Y. 245; 75 Id. 335; Brooklyn S. T. Co. v. City of Brooklyn, 78 Id. 524; Green v. Green, 34 Ill. 320; Chicago City Ry. Co. v. People, 73 Id. 541; Oakland R. R. Co. v. Oakland B. and F. V. R. R. Co. 45 Cal. 365; Morris and Essex R. R. Co. v. Central R. R. Co. 2 Vroom, 205; Regina v. London and N. W. R. R. Co. 6 Eng. L. & Eq. 220; Glamorganshire Canal Co. v. Blackmore, 1 C. & F. 262; Peavey v. Calais R. R. Co. 30 Maine, 498.

A party is not relieved from the obligation of his conduct either by inevitable accident, by the act of the law, or by the action of third parties. Paradine v. Jane, Aleyn, 26; Atkinson v. Ritchie, 10 East, 530; Brecknock and A. C. N. Co. v. Pritchard, 6 T. R. 750; Hadley v. Clark, 8 Id. 259; Shubrick v. Salmund, 3 Burr. 1637; Barret v. Dutton, 4 Camp. 333; Parker v. Hodgson, 3 M. & S. 265; Storer v. Gordon, Id. 308; Bacon v. Cobb, 45 Ill. 47; Steele v. Buck, 61 Id. 343; Bunn v. Prather, 21 Id. 217; Kitzinger v. Sanborn, 70 Id. 146; Walker v. Tucker, Id. 527; Cobb v. Harmon, 23 N. Y. 148; Beebe v. Johnson, 19 Wend. 500; Tompkins v. Dudley, 25 N. Y. 272; Adams v. Nichols, 19 Pick. 275.

Injunctions obtained at the suit of third persons do not suspend or extend the period of limitation. Wilkinson v. First National Fire Ins. Co. 72 N. Y. 499; Barker v. Milard, 16 Wend. 572.

If the temporary stoppage caused by the mayor and police had been wholly unwarranted and illegal, they would, at the most, have been acts ultra vires, for which the city is not bound. Dillon on Municipal Corp. secs. 772, 968, 974; Board of Trustees v. Schrœder, 58 Ill. 353; City of Chicago v. McGraw, 75 Id. 566; City of Chicago v. Turner, 80 Id. 419; Western College v. Cleveland, 12 Ohio St. 375; Buttrick v. City of Lowell, 1 Allen, 172; Thayer v. City of Boston, 19 Pick. 511.

The school lots are exempt from taxation, and not subject to condemnation, the right of eminent domain being limited to private property. City of Chicago v. People, 80 Ill. 384; St. Louis, J. and C. R. R. Co. v. Trustees of the Blind Institution, 43 Id. 303; Const. art. 2, sec. 13; Eminent Domain act, chap. 47, sec. 1.

By accepting the grant of the license, the company contracted not to lease its road to more than two other companies, and the city is entitled to an injunction on its cross-bill. Seymour v. McDonald, 4 Sandf. Ch. 502; Hills v. Miller, 3 Paige, 254; Trustees v. Cowen, 4 Id. 510; Clark v. Martin,49 Pa. St. 289; Mann v. Stephens, 15 Sim. 377. Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellee:

A court of equity will not lend its aid to divest an estate for the breach of a condition subsequent, or enforce a forfeiture or penalty. 4 Kent's Commentaries, 130; 2 Story's Eq. Jur. sec. 1319; Livingston v. Tompkins, 4 Johns. Ch. 431; 1 Washburn on Real Prop. chap. 14, sec. 21; Warner v. Bennett, 31 Conn. 478; White v. Port Huron and Milwaukee R. R. Co. 13 Mich. 360; Hall v. Delaplaine, 5 Wis. 215.

The non-performance of a condition precedent is excused, and a forfeiture prevented, when the non-performance is caused by the act of the grantor making the condition, or by the act of God, or by the law. Nicoll v. New York and Erie R. R. Co. 12 N. Y. 130; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co. 32 Barb. 366; Davis v. Gray, 16 Wall. 230; Hotham v. East India Co. 1 T. R. 645; Moakley v. Riggs, 19 Johns. 71.

He who prevents a thing from being done can not avail himself of the non-performance; and this applies as well to conditions precedent. Fleming v. Gilbert, 3 Johns. 528; Mayor v. Butler, 1 Barb. 337; Clarke v. Crandall, 27 Id. 97; Davis v. Gray, 16 Wall. 230; Jones v. Walker, 13 B. Mon. 165; Potter v. Dennison, 5 Gilm. 590; Town of Mt. Vernon v. Patton, 94 Ill. 66; Risinger v. Cheney, 2 Gilm. 90; Stewart v. Kiteltas, 36 N. Y. 388; Parker Co. v. O'Hern, 8 Md. 197; McKee v. Miller, 4 Blackf. 222; Borden v. Borden, 5 Mass. 67; Wheatley v. Covington, 11 Bush, 18; Rawson v. Clark, 70 Ill. 656; Smith v. Cedar Rapids, 43 Iowa, 239; Shaw v. Hurd, 3 Bibb, 372.

The unauthorized acts of municipal officers are regarded as the acts of the corporation, when they are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation on the subject to which the particular act relates. Buffalo and Hamburgh Turnpike Co. v. City of Buffalo, 58 N. Y. 639; Thayer v. City of Boston, 19 Pick. 511; Allen v. City of Decatur, 23 Ill. 334; Wolf et al. v. Boettcher, 64 Id. 316.

Mr. CHAS. M. OSBORN, also for the appellee, filed a brief and argument, making various points, some of which are embraced in the preceding brief.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

On the 15th day of September, 1879, the city of Chicago passed an ordinance granting to the Chicago and Western Indiana Railroad Company a license to enter the city from its southern boundary, and lay the track of its road as far north as Van Buren street, giving specific permission to cross any and all intervening streets and alleys, subject to the direction of the city authorities as to the manner of construction and keeping in repair of the streets, alleys and crossings occupied. The ordinance contained this section:

“Sec. 8. The privilege and authority hereby granted are so granted upon the further express condition that the tracks authorized by this ordinance shall be laid down and constructed within one year from the passage of this ordinance, and if not so constructed and in operation, all the rights and privileges granted by this ordinance to such company shall cease, and be null and void.”

On September 15, 1880, the railroad company filed its bill in this case in the Superior Court of Cook county, to enjoin the city and its officers from preventing the laying of the tracks of the complainant across Twelfth street, and other streets in the city of Chicago lying between Twelfth and Van Buren streets, and a preliminary injunction was granted on that day. The city answered, denying the rights claimed by the company, and also filed a cross-bill, claiming that by virtue of the expiration of a year from the passage of the ordinance without completing and operating the road, the company had lost all the rights granted by the ordinance of September 15, 1879, and praying an injunction in that respect. Upon the final hearing the preliminary injunction was made perpetual, and the cross-bill of the city dismissed for want of equity. On appeal to the Appellate Court for the First District the decree was affirmed, and the city appealed to this court.

It is claimed by the city that the limitation of one year, fixed by the ordinance, for the construction of the road, was not a condition subsequent, but a conditional limitation, self operating by its terms, under which the license granted absolutely terminated, ipso facto, upon the happening of the event named. The condition here we regard as a condition subsequent. Where the act on which the estate depends does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent. (3 Pet. 374.) It was evidently the design of the parties here that the license should vest at once, so that the company might proceed immediately to perform the condition by laying its tracks across the streets, and the license would be liable to be defeated by failure, without excuse, to perform the condition. We need but to refer to the following authorities upon the subject: Nicoll v. New York and Erie R. R. Co. 2 Kern. 121; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co. 32 Barb. 366; Davis v. Gray, 16 Wall. 230. These were cases of grants to a railway company, upon condition that the road should be constructed within a limited time, and the conditions were held to be conditions subsequent. In the case last cited it was said: “The rule at law is, that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, by the act of God, or the law, or the grantor, the estate having once vested is not thereby divested, but becomes absolute.” It is there said, however, that equity will not apply the principle to the extent of the last particular, to make the estate absolute. The above rule is too familiar to need the citation of any authorities in its support. We refer, however, to the following: Hotham v. East India Company, 1 Term Rep. 645; Moakley v. Riggs, 19 Johns. 71; Fleming v. Gilbert, 3 Id. 528; The Mayor of New York v. Butler, 1 Barb. 337; Jones v. Walker, 13 B. Monroe, 165; Potter v. Dennison, 5 Gilm. 590; Risinger v. Cheney, 2 Id. 90. In most of these cases even the non-performance of a condition precedent was held excused, when caused by the party imposing the condition. In Fleming v. Gilbert, supra, it was said: “It is a sound principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.”

As we conceive, it is not a question of any practical importance whether we call this a grant of a license with a condition subsequent, or a conditional limitation, as appellant's counsel term it, for we consider the effect of...