Sanitary District v. Metropolitan West Side Elevated Railway Co.

Mr. Chief Justice Farmer delivered the opinion of the court: Appellees the .Metropolitan West Side Elevated Railway Company and the Aurora, Elgin and Chicago Railroad Company have filed a motion to dismiss the appeal in this case. The reasons assigned in support of the motion are, that there is no question involved which gives this court jurisdiction and that the appeal should have been taken to the Appellate Court. If this were true it would not authorize a dismissal of the appeal but would require a transfer of the case to the Appellate Court. Appellant claims to be the owner in fee of land which is in the possession of the Metropolitan West Side Elevated Railway Company and in which it claims a perpetual easement. The bill seeks to deprive it of the right claimed. A freehold is therefore involved, and the appeal was properly brought to this court. Espenscheid v. Bauer, 235 Ill. 172; Village of Riverside v. Watson, 157 id. 669; City of DeKalb v. Luney, 193 id. 185. While counsel for appellant have in their brief and argument discussed a wide range of questions and cited a multitude of authorities, we are of opinion the decision in this case depends upon whether the city of Chicago was estopped from interfering with the Metropolitan company’s right to maintain its bridge upon a portion of the land in question. The appellant concedes that it occupies the same legal position with reference to the property in question that the city of Chicago occupied before granting it to appellant, and that if the doctrine of estoppel could be applied against the city it may also be applied against appellant, its grantee. It must be conceded for the purpose of this decision that the fee simple title to the land in dispute is, as claimed by appellant, in the sanitary district. Its title, the bill alleges, was acquired from the city of Chicago in October, 1903, and the city of Chicago acquired its title from the Pittsburg, Fort Wayne and Chicago Railway Company in December, 1885. The Metropolitan company claims an easement in a portion of the land granted by the city to appellant as a support for a part of its bridge across the Chicago river. We do not think the condemnation proceeding referred to in the bill is of any importance in the decision of this case. The bill alleges that when the petition was filed the city of Chicago held title to the land but conveyed it to appellant before the trial for a consideration of $37,000, which was the amount paid for it by the city. The Metropolitan company was in possession of the land at the time and had been for several years, but was not made a party to the condemnation suit. Whatever rights it had it acquired from the city, and the grant to appellant was subject to those rights. After the grant from the city to the appellant a judgment was entered in the condemnation proceeding finding it was the owner of the land in dispute in this case, and said land was not taken into account in assessing damages in the condemnation suit. Appellant knew when it filed its petition for condemnation that the Metropolitan company claimed some right in the land in dispute, for its bridge had been constructed and in use for eight years, and in 1898 appellant had, under an agreement with the Pennsylvania Railroad Company, constructed a by-pass on the west side of the land in dispute for the purpose of increasing the flow of water in the river, and in 1899 had entered into an agreement with the Metropolitan company by which appellant was to remove one hundred and four feet of the Metropolitan company’s water tunnel which supplied it with water, and construct a new intake for said tunnel on the line of the west wall of the by-pass. The Metropolitan company not having been a party to the condemnation proceeding was not bound by the judgment in that case. The bill alleges that the Metropolitan company never received any grant, license or permission from appellant or the city of Chicago to use the land in controversy, or any part thereof, upon which to construct or maintain any portion of its bridge. The ordinance adopted by the city council of the city of Chicago April 7, 1892, authorizing the Metropolitan West Side Elevated Railroad Company to construct, maintain and operate its railroad and branches, is made a part of the bill and its most material parts are set out in the statement preceding this opinion. The limits within which the railroad should be constructed are defined by the ordinance, and the company was authorized to construct its road across the south branch of the Chicago river by means of a bridge between Jackson street on the north and Congress street produced, on the south. ,A part of the land in controversy lies immediately south of Jackson street and extends about half way to VanBuren street, which is the next street south of Jackson. The Metropolitan company’s bridge crosses the river practically midway between Jackson and VanBuren streets, and the bill alleges that said company excavated a large hole in the land in controversy and placed therein an abutment or foundation for its bridge. The following plat will serve to show the shape and location of the land in controversy and the location of the bridge of the Metropolitan company: , [[Image here]] Appellant contends that the city of Chicago acquired the land in dispute from the Pittsburg, Port Wayne and Chicago Railway Company for a certain specified use and purpose, namely, “straightening the south branch of the Chicago river between Adams street and VanBuren street;” that it held the land in trust for the public for that use and that it had no power or authority to devote it to any other use or purpose, and that if said city had attempted by an express grant to authorize the Metropolitan company to use a portion of the land for the support of its bridge its acts would have been void, and that therefore no estoppel can arise against the city or its grantee. The ordinance of April 7, 1892, under which the railroad and bridge were authorized to be constructed and maintained, contains no grant or permission to the Metropolitan company to use the land in dispute, but it does authorize said company to cross the Chicago river with its tracks “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.” The ordinance further provided that the said Metropolitan company’s railroad and branches should be constructed under and subject to the inspection and supervision of the commissioner of public works and his assistants, and that the said road, branches and bridge might, within the limits defined, be constructed over, along, upon and across any lands which the company might acquire by lease, purchase, condemnation or otherwise. The bill alleges that the Metropolitan company took possession of a portion of the disputed premises whereon its bridge is partly constructed, on the first of June, 1894, and completed said bridge on or about May 1, 1895. The work of building the bridge was of such character and its location so public that it could not have been done without the knowledge of the city authorities. Besides, the ordinance required that it be constructed upon such plans and “in such manner” as the commissioner of public works should approve of. No objection appears to have been made by the city to the' use of the land by the Metropolitan company for its and for eight after its completion, and until the city granted the land to appellant, in 1903, it raised no question as to the authority of the Metropolitan company to occupy the land and is not now questioning said company’s rig'ht. The city of Chicago was made a defendant to the bill in this case and filed its demurrer thereto. The right of the Metropolitan company to use the land was first disputed by appellant when the bill in this casé was filed, thirteen years after, the completion of the bridge. The city of Chicago might have prevented the use of any portion of said land by the Metropolitan company when the bridge was constructed, but with full knowledge of the facts, and with the approval of the commissioner of public works, which must be presumed, it permitted said company to locate a portion of its bridge on said land and expend a considerable sum of money in so doing. It must be presumed, therefore, to have consented to said company’s use of the said land. There is no allegation in the bill as to the amount of money expended by the Metropolitan company in locating the abutment of its bridge on the disputed land, blit the character of the structure and the uses made of it make it evident that the company was required to, and did, expend a substantial sum of money on appellant’s land, and that to remove therefrom would cost another large sum. The bill alleges that the cost of removal would not exceed $20,000. The question then arises whether the doctrine of equitable estoppel is applicable to the case. Appellant contends that the same rules of law are applicable to this case that would be applicable if the land in controversy were part of the public street, and from this basis it is argued that the city of Chicago had no power either to expressly or by implication permit its occupation for other than public uses and purposes. We think it open to serious question whether the city was without authority to grant the use of the land to a public service corporation for the uses and purposes to which it was put by said corporation, but if, as contended by appellant, the city was without such authority in the first instance, it does not follow that having permitted the use of the property, neither the municipality nor the public will be estopped from revoking such permission and re-possessing the property. There is a line of cases in this State holding that permitting a public street or highway, or part thereof, to be and remain in the possession of a private party is not sufficient to create an estoppel against the municipality causing such street or highway to be vacated and re-opened. The public rights in the streets cannot be lost by the mere act of abandonment by the public authorities. Appellant has cited a number of cases so holding, in its brief, among them City of DeKalb v. Luney, 193 Ill. 185. In that case the city of DeKalb was enjoined, at the instance of a property owner, from removing a fence enclosing said owner’s residence from what the city claimed was a public street. The evidence showed that some three and one-third feet of the street was inside the enclosure of the property owner. There were no improvements on the portion of the street inside said enclosure except a fence, a lilac bush, a creeping vine and possibly a maple tree about ten years old. The injunction was made perpetual by the circuit court on the ground that the city, having permitted a portion of the street to be enclosed and possessed for more than twenty yfears by a private party, was estopped from reclaiming it. This court reversed that decree and held that under the 0 circumstances shown by the evidence the doctrine of estoppel did not arise, - but it was recognized in that case that there are circumstances under which a private party may invoke the doctrine of estoppel against a municipal corporation and the public. On page 190 it was said: “It must appear, to create an equitable estoppel against the public in cases such as that at bar, not only that the city authorities have long withheld the assertion of control over the portion of the street in question, and that private parties have been, by the acts of those representing the public, induced, in good faith, to believe the street has been abandoned by the public, but also that on the faith of that belief and with the acquiescence of those representing the public such private party has erected structures on the street or made improvements thereon of such lasting and valuable character that to permit the public to assert the right to re-possess itself of the premises would entail such great pecuniary loss and sacrifice upon the private property holder that justice and right would demand that the public be estopped.” In People v. City of Rock Island, 215 Ill. 488, this court said (p. 495) : “It has frequently been decided that the doctrine of estoppel in pais is applicable to municipal corporations, but that they will be estopped or not, as justice and right may require. There may be cases where, under all the circumstances, to assert a public right would be to encourage and promote a fraud. Where a party acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel will be applied. The-hardships that would result from a contrary holding, and the necessity of raising an estoppel in particular cases to prevent fraud and injustice, have induced the establishment of the rule, and it has been several times said that there is neither danger to the public nor injustice in the application of the doctrine. In the exercise of proper diligence the public authorities may prevent encroachments upon public right, and if they do not, any citizen may take the necessary steps to do so, and if there is not only a failure to act by either, but affirmative action by the public authorities with the apparent approval of every one interested, under which the situation is changed and permanent improvements are made, the principles of equity require that the public should be estopjped. The doctrine has been applied in Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25, Chicago and Northwestern Railway Co. v. People ex rel. 91 id. 251, County of Piatt v. Goodell, 97 id. 84, Martel v. City of East St. Louis, 94 id. 67, and City of Chicago v. Union Stock Yards and Transit Co. 164 id. 224.” The same rule was again announced in People v. Wieboldt, 233 Ill. 572. It is not required that there shall be some affirmative act of the city upon which to base an estoppel, but it may arise out of long acquiescence and such conduct and acts as amount to ratification. City of Chicago v. Union Stock Yards and Transit Co. 164 Ill. 224. In our opinion, under the facts as set out in the bill, the case is one for the application of the doctrine of equitable estoppel and must be controlled by the authorities above cited. That question being conclusive of the case, it is unnecessary, to refer to other questions discussed by counsel in their brief and argument. The demurrers to the bill were properly sustained by the circuit court, and its decree dismissing the bill is affirmed. Decree affirmed.