Thornton v. Stevens Coal Co.

Mr. Justice Adams delivered the opinion of the court. The question to be decided is whether a bill in equity to enjoin the railroad companies from constructing an elevated side track from their main elevated track to the coal yard of the Stevens Coal Company can be maintained. The main contention of appellant’s counsel, and the basis of their entire argument, is that the proposed construction of the side track is for private use. If this contention is untenable, the conclusion at which counsel have arrived, namely, that appellant’s remedy is by bill in equity for an injunction, is erroneous. In People v. Blocki, 203 Ill. 363, the court say: “The main contention of appellant is, that the permits to Pettett and the Indiana Gravel and Sand Company to lay switch tracks in Wallace street and connect said lumber and gravel and sand yards, respectively, with the main track of the Chicago and Western Indiana Railroad Company, in said street, were a diversion of said street from its publi.c to a private use, and that said permits were void. The street, at the time said permits were granted, was under the control of the board of trustees of the town of Lake, and under the power conferred upon that municipality by law, it was authorized to allow the use of said street for any purpose not incompatible with the purpose for which it was established, and to allow a railroad track to be laid therein was not a use incompatible with the purpose for which it was established. In City of Quincy v. Bull, 106 Ill. 337, on page 349, it was said : 1 In this State there is vested in municipal corporations a, fee simple title to the streets. Under the power of exclusive control over streets, it is very well settled by decisions of this court that the municipal authorities may do anything with, or allow any use of streets, which is not incompatible with the ends for which streets are established, and that it is a legitimate use of a street to allow a railroad track to be laid down in it,’ ” citing cases. The court further say : “In Truesdale v. Peoria Grape Sugar Co., 101 Ill. 561, Chicago Dock & Canal Co. v. Garrity, 115 id. 155, and McGann v. The People, 194 id. 526, it was held a municipality has authority to grant to private individuals the right to lay switch tracks in its streets, with -which to connect manufacturinsr plants, located upon private property, with the main track of a railroad company in said street, and that when so laid such switch tracks, in legal contemplation, become a part of the main track with which they are connected, and are public highways.” To the same effect are Parlin v. Mills. 11 Ill. App. 396, 403; Mills v. Parlin, 106 Ill. 60; and Coffeen v. C. M. & St. P. Ry. Co., 84 Fed. Rep. 46. We regard the proposition that the proposed side track would be for a private and not a public use, fully settled in this state against appellant’s contention. Appellant’s counsel contend that the construction of the side track is unauthorized. Paragraph 11 of section 1 of. an ordinance of the city of Chicago, requiring the Chicago and Western Indiana R. R. Co. and other railroads to elevate their tracks within the city, quoted in appellant’s bill, clearly grants permission to construct the side track in question. The first part of the paragraph is as follows: “Permission and authority are hereby granted to any of said railroad companies to elevate their railroad bed and tracks, as aforesaid; to construct branch, spur or side tracks from any point along the line to be elevated, pursuant to the provisions of this ordinance, to reach any industrial or commercial establishments, which are connected with said line so to be elevated, and to cross, with such branch, spur or side track, any street, or portion of a street, not more than thirty-three (33) feet wide, or any alley, or other public way, of width not greater than thirty-three (33) feet, which may intervene between said main lines and said establishment, in such manner as shall be approved by the commissioner of public works.” The remainder of the paragraph relates merely to the manner of construction, and the restoration of the street, alley or public way to its former condition, in case its depression becomes necessary. Appellant’s counsel say of the paragraph quoted : “ Upon its face, it authorizes such connections where switch tracks were in operation before the elevation of the tracks, under license-from the city; but this proposed structure is not where the former switch track was made and operated, without authority.” This is a misinterpretation of the paragraph. The only limitation is that at the time of the passage of the ordinance there must have been a side track connecting the coal yard with the main line of the railroad company. The language is, “ To reach' any industrial or commercial establishments which are connected with said line so to be elevated, by existing branch, spur or side tracks, on any land adjoining to said lines,” etc. But even though the city had not granted permission to construct the side track, its construction cannot be enjoined at the suit of a private person. In such case the question as to want of authority is between the public and the railroad company, and the remedy is by information by the attorney general, or state’s attorney, or by bill for injunction by the city. Doane v. Lake St. El. R. R. Co., 165 Ill. 510, 521. Appellant’s counsel do not claim that there is any distinction, in principle, as to his rights in the premises, between the construction of a side track connecting the premises with a surface railroad, and one connecting the premises with an elevated railroad, nor is there any such distinction. See the Boane case, supra. We find no error in the record, and the decree will be affirmed. Affirmed.