Doane v. Lake Street Elevated Railroad

36 L.R.A. 97, 165 Ill. 510

• Court: Illinois Supreme Court
• Decided: October 16, 1896
• Status: Published

Opinion

Mr. Justice Wilkin

delivered the opinion of the court:

This is a bill for an injunction by appellant, as abutting property owner, to restrain appellee from building an elevated street railroad in Lake street, in the city of Chicago. The circuit court of Cook county sustained a demurrer to the bill and dismissed it for want of equity. The Appellate Court having affirmed that decree, this appeal is prosecuted.

The bill alleges that complainant is the owner of five business houses, numbered 33, 35, 37, 39 and 41, fronting on the street between the east line of Market street and the east line of Wabash avenue, holding title to the lots on which they are erected by lease from the owner of the fee for a term extending from March 1,1872, to March 1, 1957. It then sets up the passage of an ordinance by the city council, at the request of the defendant, authorizing and permitting it to construct and operate an elevated railroad in the street, (a copy of the ordinance being exhibited with the bill,) and alleges that the. company has accepted the same and is proceeding to construct its road in pursuance thereof. It alleges that such ordinance is illegal and void, because passed without a valid petition therefor signed by owners representing more than one-half of the frontage of' the street between said east line of Market street and east line of Wabash avenue, as required by the statute; that the distance between those lines is 2893r¥¡r feet, being less than one mile, with a total frontage of 4541tov feet, exclusive of street crossings; that in the preamble to the ordinance it is recited that the petition of property owners fronting on the street between the points named, “representing out- of the total frontage of 4514 feet 2468nhr feet consenting to the construction and operation of said elevated railroad, has been presented to and is now on file with said council;” that such recital is not true; that there was presented to the said council by the defendant, before the passage of the ordinance, petitions “purporting to be signed by owners of the land representing more than one-half of the frontage on said Lake street between the east line of Market street and the east line of Wabash avenue;” that the defendant represented to the council that more than half the owners of the frontage had so consented; that a large number of signatures appearing upon said alleged petition were not the signatures of owners of the property for which they signed, or of any person actually authorized to sign the same or consent for any owner of property for such frontage, but are the signatures of persons purporting to act in a fiduciary capacity, as guardians, trustees, administrators, attorneys in fact, agents, etc. It is next stated that complainant caused the records and files of the probate, circuit and Superior Courts, as well as the records of the recorder of Cook county, to be examined, and obtained surveys of the frontage on said streets, and procured from the city clerk a correct copy of all petitions presented to the council by the defendant of owners purporting to haye consented to the construction and operation of said road; that he caused to be made a true and correct search by abstracters of title for the owners of all lands along the route of said road, and on the information so obtained charges that those who signed certain consents were not in fact the real owners of the frontage signed for, some of these allegations being that they were not the owners of record; that guardians, trustees, agents, etc., were not authorized to sign the same, or that their authority so to do was not filed with the city council or presented with the petition. It is further charged, on information and belief, that the defendant, or some of its agents or employees, to procure the consent of certain parties signing said petition, paid them either money, bonds or stock therefor, and induced others to sign the same by threats and intimidation. It is then alleged that, deducting such signatures so improperly made, less'than one-half of the owners representing the frontage on said street consented to the construction and operation of the said road, and that the ordinance authorizing the same is therefore illegal and void,-and the defendant has no lawful authority to build its said road, and that if allowed to do so certain damages will result to the complainant’s property, such as interfering with free access thereto and obstruction of air and light. The prayer is that the defendant be perpetually enjoined from proceeding with the construction of the said railroad.

The question for decision is, do the facts well pleaded in this bill entitle the complainant to the injunction prayed for? It is conceded that the common council of the city of Chicago is, by the provisions of our statute, given exclusive control and supervision of its streets, the fee of which is vested in the mnnicipality. While they are held in trust for the public use, and can only be appropriated to the purposes for which they were dedicated, it is the settled law of this State that permitting street railroads to be placed therein is not subjecting them to an unlawful use. It has often been so decided by this court as to surface roads, and no good reason has been suggested, and none, we think, can be offered, for making a distinction in this regard between elevated and surface roads. The road in question, if constructed in conformity with the requirements of the ordinance, will certainly obstruct travel upon the street by other means less, and be less hazardous to the public, than would a surface road. The pillars upon which the superstructure is to be built, which it is claimed will exclude the public from a part of the street, are but a necessary part of the road,—as much so as are rails and other parts of tracks constructed upon the ground, or as are trolley-posts placed in the street for operating an electric road by the trolley system. It is true that all these things do, to some extent, interfere with the use of the street by ordinary vehicles, but the inconvenience is one which must be borne for the benefit resulting to the public from the better modes of travel thus afforded. (Moses v. Pittsburg, Fort Wayne and Chicago Railroad Co. 21 Ill. 515.) We held in Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. 156 Ill. 255, that a street railway operated by electricity, with trolley-posts on the streets, was not a new servitude of the street, and that the poles were not unwarranted obstructions in the same, as are telegraph and telephone poles, “because such erections aid and facilitate the use of the public street for the purposes of travel and transportation.” The same is true of the pillars used in constructing elevated roads. In view of the known fact that such elevated lines in large cities greatly accommodate the public by increasing the facility and safety of transit, it can scarcely be seriously contended that permitting them to be constructed and operated is to subject the streets to a new servitude or unlawful use. The right of a city to permit them is clearly recognized by the act of July 1, 1883, entitled “An act in regard to the use of streets and alleys in incorporated cities and villages by elevated railroads and elevated ways and conveyors.” 2 Starr & Curtis’ Stat. chap. 114, secs. 201-203.

This court has frequently held, that where an additional use of a street has been granted by the city to build and operate a street railroad, an injunction will not be granted to restrain the construction or operation of the road at the suit of an abutting property owner; (Moses v. Railroad Co. supra; Murphy v. City of Chicago, 29 Ill. 279;) and that since the constitution of 1870 such owner can not maintain a bill to enjoin the same until the resulting damages to his property are ascertained and paid, but that his remedy is by action at law for such damages. (Stetson v. Chicago and Evanston Railroad Co. 75 Ill: 74; Patterson v. Chicago, Danville and Vincennes Railroad Co. id. 588; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 269; Peoria and Rock Island Railway Co. v. Schertz, 84 id. 135; Penn Mutual Life Ins. Co. v. Heiss, 141 id. 35.) The same doctrine is recognized in Corcoran v. Chicago, Madison and Northern Railroad Co. 149 Ill. 291, and White v. Elevated Railroad Co. 154 id. 620. We said in Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. supra, (p. 273): “Where the fee of the street is in the city, such damages as the abutting owner may suffer from the laying of a railroad track in the street are merely consequential, so far, at least, as they affect the property abutting on the street. In such case, as there is no physical taking of the land, injunction will not lie to enjoin the taking, the remedy being an action at law for damages.”

But it is insisted on behalf of complainant, that on the facts set up in his bill the ordinance must be treated as passed without the required consent of abutting owners, and therefore illegal and void, which being true, the defendant should be held as proceeding with the work without any authority of law whatever, whereas in the cases referred to lawful consent of the city was shown. The real ground upon which relief by. injunction is denied in such cases is, that the use of the street being within the purposes for which it is laid out, and therefore a proper use, the right to occupy is properly a question between the defendant and the municipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public generally, the individual being left to his action for damages for any injury resulting to his property. He has no standing in equity on account of public ■injury or for the purpose of inflicting punishment upon the defendant for its wrongful acts. He can only invoke that jurisdiction in order to protect his property from threatened injury. His injury is a depreciation of the property, which is capable of being estimated in money and recoverable in an action at law, therefore a court of equity will not interfere by injunction. As stated by Chief Justice Fuller in Osborne v. Missouri Pacific Railway Co. 147 U. S. 253: “But where there is no direct taking of the estate itself, in whole or in part, and the injury complained of is the infliction of damage in respect to the complete enjoyment thereof, a court of equity must be satisfied that the threatened damage is substantial and a remedy at law in fact inadequate before restraint will be laid upon the progress of a public work; and if the case made discloses only a legal right to recover damages rather than to demand compensation, the court will decline to interfere.” To the same effect is the language used in the opinion of Justice Brewer in In re Debs, 158 U. S. 591.

In Morris and Essex Railroad Co. v. Pruden, 20 N. J. Eq. 530, cited in the Debs case, it is said: “Mere diminution of the value of the property of the party complaining, by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief. (Zabriskie v. Jersey City and Bergen Railroad Co. 2 Beas. 314.) It must not be overlooked that the defendants are engaged in a public work by the completion of which the public interest will be greatly advanced. The injunction by which the progress of the work is arrested must not only cause great injury to the defendant, but also is the occasion of great inconvenience to the public.” And again: “The defendants will not occupy with the proposed track any of the complainant’s lands. For the contingent and consequential damages he may suffer from any unlawful interference with his enjoyment of his property he has his remedy by action at law, whenever and as often as loss or damage ensues; and if the use of a railroad in front of his premises becomes a nuisance, or the aggression proves to be a permanent injury without an adequate remedy at law, then the court will be competent to administer equitable relief by injunction to prevent its continuance, or for its removal. But a strong case must be presented and the impending danger must be imminent to justify the issuing of an injunction as a precautionary and preventive remedy.” Drake v. Hudson River Railroad Co. 7 Barb. 508.

In Truesdale v. Grape Sugar Co. 101 Ill. 561, Mr. Justice Scott, in the opinion adopted by the court, said (p. 564): “The track is to be constructed on lands not owned by complainants, and under a license from the only party having lawful authority to grant the privilege, and any expected damages that may be sustained by reason of the proposed work can only be recovered in an action at law. Equity will not entertain jurisdiction to enjoin the proposed work,”—citing the Stetson, Patterson and other cases. And Justice Mtjlkey, dissenting, also said (p. 565): “If the proposed railway, when put in operation, would be open to the public generally, then I concede, under the prior decisions of this court, an injunction would not lie at the suit of a private individual, however much he might be injured by the building and operating of such road. But such is not the case here.”

It was said in Patterson v. Chicago, Danville and Vincennes Railroad Co. supra, (on p. 590): “The claim is, that upon the principle of strict construction the company must be confined within the limits of the defined district. Without undertaking any discussion of-this question, it is sufficient to say that the fee of the streets is in the city, and it has the power to control and regulate their use, and any such excess of authority in the use of a street as is here claimed must be left to be redressed by the public authority, and equity should not, in such case, at the suit of a private individual, enjoin the operating of a railroad.” This case has been often cited with approval in later cases.

Where the use of the street has not been legally authorized, as held in McCartney v. Chicago and Evanston Railroad Co. 112 Ill. 611, Hunt v. Horse and Dummy Railway Co. 121 id. 638, Chicago, Burlington and Quincy Railway Co. v. City of Quincy, 136 id. 489, and Metropolitan City Railway Co. v. City of Chicago, 96 id. 620, an information in chancery by the Attorney General or State’s attorney on behalf of the People, or, as in the last named case, a bill for injunction by the city, affords a proper and complete remedy. If, as contended, the abutting owner can also maintain a bill on the same ground,—that is, that the building of the road is without the valid consent of the city,—then the language in the Patterson case, “and any such excess of authority in the use of a street as is here claimed must be left to be redressed by the public authority,” must be overruled and the authorities above cited as to the remedy by the Attorney General or city qualified. If a railroad is legally authorized no one can enjoin its construction. In other words, it is only when the consent of the city has not been lawfully obtained that any one can complain in a court of equity, and, therefore, when it is said “the remedy is by the public authorities, the abutting property holder being remitted to his action at law for damages,” cases in which the work is unlawful must be contemplated, and such is clearly the force of the Patterson case, supra. This doctrine is recognized again in the Corcoran case, supra. In the Schertz case, supra, the ordinance authorized the laying of a track along a street on condition that the consent of property owners on the opposite side of the street should first be obtained, but the company proceeded with the work without complying with that condition, and a bill for injunction by an abutting property holder was filed. As shown by the bill in that case, the defendant was proceeding illegally and certainly without the consent of the city, and the question was directly brought to the attention of the court, as appears from the dissenting opinion there filed, but the relief was denied.

The principle is, that, the abutting property owner having a complete remedy at law, a court of equity will not, upon his allegation that the ordinance authorizing the construction is illegal, enjoin the defendant from proceeding until the question of illegality can be litigated and determined, but will remit him to his action at law, —and this, it seems to us, is a just and reasonable rule, the enforcement of which will protect the rights of all parties interested. To hold otherwise would be to render impracticable the building and operation of street car lines under onr statute. While such improvements are owned and operated by private individuals or corporations, the use of the streets is public and not private, and upon that theory alone they are permitted to be constructed in the streets, and it will not be denied that in large and populous communities they are of great public utility, if not a public necessity. While, therefore, the private owner is entitled to have all his property rights fully protected, that right should be accorded him, if possible, by a remedy which will not unnecessarily injure others and render impossible the construction and operation of necessary facilities for public travel. A moment’s reflection will, we think, convince any one that if every abutting owner not consenting may enjoin street railway companies from building their lines in streets upon the ground that the consent of the city has not been legally obtained, because of facts alleged which do not appear upon the face of the proceedings, the building and operation of all such lines will become practically impossible. In a case like this the work would necessarily be stopped until titles to abutting property could be adjudicated and settled, the powers of agents, etc., determined, and the motives which may have prompted owners to give their consent inquired into; and after this had been done, which, in the ordinary course of litigation, would require many months or even years of time, if the facts should be found in favor of the validity of the ordinance the work could proceed as to this complainant, he still being entitled to his action for damages. The decision, however, would settle the validity of the ordinance between him and the defendant, and no one else. Any number of other owners might, in succession, procure injunctions on the same or similar grounds, and prosecute them to a like final determination. Manifestly, neither persons nor corporations would hazard capital in an enterprise subject to such uncertainty and delay. There is a certain, adequate and complete remedy at the suit of the public whenever there is a threatened or actual unlawful obstruction of the streets and highways, and, as we think, an equally certain, adequate and conclusive remedy to the abutting owner for all his damages, present and prospective. The contention that he cannot have such remedy by a single action we deem untenable. It is not denied that the damages for which he would be entitled to recover are the same in kind as if the building of the road were lawful.

But it is said that, being in the street unlawfully, the obstruction is a public nuisance, subject to be abated and removed at any time, and therefore the recovery could only be had for damages to the time of bringing the suit. This position is based upon the proposition that a railroad unlawfully in a street is a public nuisance, and liable, as such, to be abated at any time, and therefore a recovery for damages can only be had to the time of bringing the action, and hence a multiplicity of suits will become necessary to give the complainant a complete remedy. The position is untenable. The injury would be a continuing and permanent one, and therefore a single recovery can be had for the whole damages, present and future. (Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203, and authorities cited; Galt v. Chicago and Northwestern Railway Co. 157 id. 125.) Moreover, we think it clear the defendant, if sued for resulting injury, could not be heard to say its road was a nuisance or built in .violation of law. Having accepted and availed itself of the grant of authority from the city to occupy the street, it would be estopped to question the validity of that authority. For the purposes of a recovery against it of damages, whether present or prospective, its road must be deemed lawfully in- the street and it compelled to fully compensate all parties injured upon that theory. This proposition seems to us so reasonable that authorities need scarcely be cited in its support. It is, however, fully sustained by the following cases: City of Chicago v. Wheeler, 25 Ill. 396; Higgins v. City of Chicago, 18 id. 276; People v. Maxon, 139 id. 306; Heims Brewing Co. v. Flannery, 137 id. 309; Joy v. St. Louis, 138 U. S. 51.

It is again urged, that sections 1 and 2 of the statute of 1883, supra, known as the “Frontage act,” give abutting owners a new right in streets that is enforceable in equity. We haxm carefully considered this branch of the case and the arguments of counsel in its support, and are unable to find anything in the statute to warrant the conclusion. It is substantially the same as paragraph 90, section 63, of the City and Village act, and it must be admitted that if one of these statutes has the effect of conferring a new property right upon abutting owners the other has also. We think it is manifest that these provisions were intended merely as a restriction upon the authority of city councils and boards of trustees in cities and villages to authorize the laying of railroad tracks along streets or alleys, and in no way add to the rights of such owners in the streets. The amount of damages which such an owner is entitled to recover for injury to his property is certainly no greater since the passage of these statutes than it was before. We scarcely think it will be contended that in estimating the damages done to adjacent property the Frontage act can in any way enter into the consideration. In fact, we understand it to be conceded that the measure of complainant’s recovery in an action at law would be the same whether the improvement is lawfully in the street or not, except as it is contended that damages can in the latter case only be recovered to the date of bringing the action. If the requisite consent is not given the ordinance may be treated as illegal, as the one in Metropolitan City Railway Co. v. City of Chicago was held to be, for want of the required notice, and that illegality would, as we have already said, authorize an action on behalf of the public, but would give an abutting owner no right to relief in a court of equity. For the same reasons it must be. so held where the alleged illegality is the want of the required petition by owners of the frontage.

Our conclusion, upon considering the whole case, is, that the demurrer was properly sustained and that the judgment of the Appellate Court should be affirmed.

Able and elaborate arguments have been filed by counsel for the appellant, and authorities cited, which, it is insisted, sustain a different view as to equity jurisdiction. Keeping in mind the fact that the proposed construction of defendant’s road will impose no unwarrantable additional servitude upon the street, none of the decisions of this court referred to are in point. Those cited from the State of New York are distinguishable in that there the holding is that the abutting property holder can in no case recover future damages in an action at law, and equity jurisdiction is for that reason entertained,—in other words, having no complete and adequate remedy at law, courts of equity will afford him that remedy. Without undertaking to determine whether decisions cited from other courts are in conflict with the view here announced, it is enough to say that if they are they must also be held as conflicting with our former decisions.

Judgment affirmed.

Magruder, C. J.: I cannot concur in this opinion.