Chicago, Danville & Vincennes Railroad v. City of Chicago

Mr. Justice Sheldon delivered the opinion of the Court: There is no permission given by the city ordinance to lay a railroad track upon these streets specifically, except Ann street, which are crossed by this side-track in question. But the permission is claimed to be derived from the general language of the latter provision of the fourth section of the ordinance of October 8, 1886, which is, to lay down such tracks “as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the vicinity of or adjoining said line of road, and to form connections with other roads. ” It is said this side-track is in the vicinity of or adjoining the line of the road,—that the proof establishes the side-track is necessary to the convenient use of the depot grounds, and thus that the laying of this track comes within the express grant of authority by the words of this provision. The occupation of the street of a city with a railroad track is of very serious concern, as regards the public and property owners upon the street, and a permission which is set up to so occupy a public street, should plainly appear, and not be left to be derived, by doubtful implication, from the generality of language which does not unmistakably manifest the intention to give such permission. To arrive at what was the meaning of the ordinance with respect to streets, it is proper to look at all of its provisions. Section 1 gives permission and authority to the company to construct a railroad with a single track, in the south part of Kinzie street, from Western avenue eastward to a point in said Kinzie street between North Morgan and North Sangamon streets. By section 2 the company is also authorized to lay down and operate one or more railroad tracks “on any ground which said company now owns or may hereafter acquire, * * * between Kinzie and Carroll and between Morgan and Halsted streets, and also to lay down, maintain and operate any such track or tracks, turn-outs and switches, across any street' or streets and alleys within the district aforesaid. ” By section 3 the company is also authorized to lay down and operate one of more railroad tracks on Carroll street, from Halsted street eastward to the Chicago' river, with the right to cross said Halsted street, and all intervening streets between those limits. By section 4 the company is also authorized to lay down and operate one or more railroad tracks “on any ground'which said company now owns or may hereafter acquire, * * * between North Halsted street and the Chicago river, and between Carroll and Fulton streets, and also to lay down, maintain and operate any such track or tracks, turn-outs and switches, across any street or streets and alleys within the district aforesaid, and also all such as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the-vicinity of or adjoining said line of road, and to form connections with other roads, and also to acquire and use all such depot, grounds, and to erect thereon such buildings as said com-" pany shall deem necessary for the convenient transaction of its business.” Thus it will be seen, that until this general clause in section 4 is reached, the authority which is given for the use of streets is specific, precise, and most guardedly limited. A route is given for the railroad from Western avenue eastward to the Chicago river, and what streets may be used,"and the extent to which they may be used, are specifically ‘defined. A single railroad track may be laid in Kinzie street eastward to a point therein between North Morgan and Sangamon streets. Morgan street is the fourth street west from Halsted, the streets running, Halsted, Green, Peoria, Sangamon and Morgan. Authority is then given to lay down and operaté one or more railroad tracks on any ground the company owned or might acquire, between Kinzie street and Carroll avenue, and between Morgan and Halsted streets, and to cross any street or streets within that district. This would authorize the company to come down from Kinzie street south to the north line of Carroll avenue, but not to use that avenue. Then the further authority was given to lay down and operate one or more railroad tracks on Carroll street, from Halsted street eastward to the Chicago river, with the right to cross said Halsted street and all intervening streets between those limits. Here was authority to use Carroll avenue eastward from Halsted street, and there was given the further authority to lay down and" operate one or more tracks on any ground the company then owned or might acquire, between North Halsted street and the Chicago river, and between Carroll and Fulton streets, and to cross any street or alley within that district. Thus all the authority which was given to use Carroll avenue, was to use it eastward from Halsted street. There was no authority given to use it westward from Halsted street, or to use May and Carpenter streets south of Carroll avenue. After such careful mention and specification of what streets might be used, as had preceded in the ordinance, then follows the general clause upon which the disputed construction arises, immediately after the authority to lay tracks across any street or alley within the district aforesaid, “and also all such as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the vicinity of or adjoining said line of road. ” There is no specific mention of streets in this general clause, and to hold that under it any other streets might be used than those specified in the preceding part of the ordinance, would make it indefinite and uncertain what streets might be made use of under this clause, and leave it for the railroad company to determine. We do not think that was the intention of the common council, but that it was their purpose to fix and limit precisely what streets might be used. And, in our judgment, the true construction of this general clause of the ordinance is, that it gave no authority, in respect of the use of streets, additional to what had been granted by the preceding part of the ordinance; that what streets might be used were specifically defined and limited by the ordinance, and that under this general clause there was not given authority to make use of any other streets than those which the ordinance had specifically named might be used. It is claimed the railroad company was authorized, by its charter, to lay and maintain the track in question. The charter gives no express authority to cross any streets in' the city of Chicago. It hut gives authority to construct a railroad from Vincennes, Indiana, to and into the city of Chicago, with the general power to cross any road or highway on the route, wdiich is to he held as only giving such power outside of the corporate limits of the city. By the amended charter of 1863, of the city of Chicago, the common council was given the powrer “to direct and control the location of railroad tracks.” Laws and Ordinances of 1873, p. 406. In the case of Moses v. Railway Co. 21 Ill. 516, the court said: “By the city (Chicago) charter the common council is vested with the exclusive control and regulation of the streets of the city, the fee simple title to which we have already decided is vested in the municipal corporation. The city charter also empowers the common council to direct and control the location of railroad tracks within the city. ” This question would seem to be sufficiently disposed of by what was said in the case of St. Louis, Vandalia and Terre Haute Railroad Co. v. Haller, 82 Ill. 208. In that case it was claimed, under a charter similar to this one, that the railway company had the right to cross streets within a corporation without any ordinance giving the permission, and the court said: “It is urged that the fee,to the streets was in the town, and that it being a municipal corporation, and under the control of the legislative power of the State, the General Assembly had power to grant the streets to the use of railway companies, for the construction and operation of their roads, and that the General Assembly, in passing the charter of this company, granted' them the use of this street by authorizing them to pass through the town. By no reasonable or fair intendment can it be held that-the grant of" authority to run their road through the town, operated as a grant of the use of the streets, or either of them,.to the company, for the purpose. ” The decree will be affirmed. Decree affirmed.