Corcoran v. Chicago, Madison & Northern Railroad

Moran, J. A bill was filed by appellant, in which he alleged that he was the lessee of certain lots situated on Archer avenue, in the city of Chicago, and had erected offices, staging, platforms, bins and necessary machinery thereon, at great expense, for the purpose of carrying on a coal business, and that he occupies the premises as a wholesale and retail coal and fuel yard. That when he leased the premises the Chicago City Railway operated its horse railroad, with tracks laid on Archer avenue fronting on said premises, and the cars of said horse railroad were of great profit and concern in the operation of his business, by giving ready and convenient means of access to his place of business, to his customers and others desiring to do business with his coal yard. That the city has passed two ordinances, which are attached to the bill, by the operation of which said horse car company will be compelled to move its tracks and relay them on a new street running beside the old Archer avenue, and on the south side thereof, and on the portion of old Archer avenue in front of appellant’s premises and on which they abut, was granted the right to the defendant railroad company to construct, maintain and operate a railroad with tracks, turnouts, switches, etc., on condition that it shall pay all damages that shall accrue to property owners fronting on said street. Alleges that the effect of the ordinances is to vacate the said Archer avenue as a street in front of appellant’s premises, and abandon the same, and to locate Archer avenue south of the railroad tracks now on and to be placed on said street. That by so abandoning and vacating said street, the easement for public purposes upon the land on which said street was laid out, is gone, and that said land has reverted to the original dedicator, who is complainant’s lessor, and that the north half of the bed of said vacated street became the property of complainant during the term of his lease, and that said railroad company can not deprive him of the land, or lay any tracks thereon, wdthout condemning said land and making compensation therefor. The bill contains many other allegations, showing how complainant’s business and the use of his premises will be interfered with and ruined, by reason of the manner in which the changes ordered by the city are to be carried out, and the old street in front of his premises used. One of the ordinances which is mentioned in the bill, provides for the widening of Archer avenue between certain designated points, appropriating certain land on the south side of said avenue by condemnation proceedings. The other ordinance grants to the appellee, on certain conditions, the right, when said Archer avenue is widened, to lay down its tracks and operate its road along the northerly side of Archer avenue, as widened. The allegations of the bill make out a case of great and serious injury to complainant, by reason of the proposed changes and the construction of the additional railroad tracks upon the street, but anticipated injury in such a case does not give to a court of equity jurisdiction to interfere. If, in fact, appellant’s contention that the effect of the ordinances was the abandonment and vacation of the street in front of his premises, and that consequently the land had reverted to his lessor of the public easement, was maintainable, he would probably have a standing in court to prevent the appropriation of his property by the railroad company, until compensation therefor was made. But it is impossible to maintain, in our opinion, that either ordinance, or both taken together, effect a vacation of Archer avenue as a street at the point where appellant’s property abuts upon it. The intent of one of the ordinances is manifestly not to abandon or vacate, but to widen the street, so as, it must be presumed, to give increased accommodation to the -public. The other ordinance operates to increase the number of railroad tracks on the old portion of the widened street. However forcible the arguments against the doctrine may be, it is established by a long series of decisions in this State that it is within the discretion of municipal authorities to permit steam railroad tracks to be laid, and such roads to be operated in the public streets, and that such appropriation of the streets is not a new use thereof, or an additional burden thereon, in any such sense as will entitle an abutting property owner to enjoin such use of the street on which his property fronts. Moses v. P. & F. W. R. R. Co., 21 Ill. 516; Stetson v. Chicago & E. R. Co., 75 Ill. 74; Mills v. Parlin, 106 Ill. 660. It may be quite true that every additional track is a damage to the property owner, and directly and demonstrably diminishes the value of his property and its convenient use, but if the company has the consent of the proper municipal authorities, he must seek his remedy by an action at law. A court of equity has no power to exercise a preventive remedy in such a case. The decree of the Circuit Court denying the injunction and dismissing the bill must be affirmed. Decree affirmed.