Atchison, Topeka & Santa Fe Railway Co. v. Maegerlein , 114 Ill. App. 222 ( 1904 )

Mr. Justice Ball

delivered the opinion of the court.

It will be seen by an examination of the three ordinances which are made parts of the bill, that they are track elevation ordinances, by which the several railroad companies are ordered and directed to elevate the plane of their roadbeds within the limits of the city to varying heights as prescribed in said ordinances; that subways are provided for at certain designated streets, of which Mary street is one; that all of such work done upon or in connection with the public highways of the city shall be done and performed under the superintendence and subject to the inspection and approval of the commissioner of public works; that said railroad companies in the prosecution of said, work may obstruct temporarily any public street to such an extent and for such a length of time as may be approved by said commissioner, and may erect temporary structures and false works in any street during the construction of their elevated tracks, subject to the like approval of said commissioner; that the plans for such track elevation shall be submitted to said commissioner for his approval; that said work shall be commenced on or-before August 1, 1899 (except that the time of commencement for the Chicago & Alton Railway Company is fixed at May 1,1900), and shall be prosecuted continuously with all practical diligence, and shall be fully and finally completed on or before the 31st day of December, 1903; and that the railroad companies shall not be required to pay any damages to adjacent property caused by the passage and enforcement of the ordinances, but the city agrees to adjust and to pay such damages.

This great public work of elevating the railway tracks in the city of Chicago, thus eliminating grade crossings and thereby lessening if not preventing the maiming or killing of persons by passing trains and greatly facilitating public travel, should not be stopped by appellees, if all their property rights can be otherwise protected, or the deprivation of them can be adequately compensated.

Appellees have mistaken the remedy for the grievances alleged in their bill of complaint. The acts which have depreciated their several premises were done and completed before the bill was filed. Hence the cases of Earll v. Chicago, 136 Ill. 277, and Field v. Barling, 149 Ill. 572, in each of which a court of equity granted relief as against a threatened injury, are not here in point. In this case appellees seek to have the embankment declared a purpresture and a public nuisance, and to have the same abated. Such an action cannot be brought by a private person. It must be instituted by the Attorney General, by the State’s Attorney, or by the City of Chicago. In other words, it is a public action, and must therefore be brought by public authority. Patterson v. Ry. Co., 75 Ill. 588; Doane v. Lake St. El. R’d Co., 165 Ill. 510; People v. Harris, 203 Ill. 272.

The damages, if any, to the property of appellees by reason of the recited acts of appellants are capable of being estimated in money and recoverable in an action of law. Having a complete and perfect remedy at law, they cannot come into a court of equity for relief. The cases are many where, under similar circumstances, an adequate remedy at law has been had. Among these cases are Ottawa v. Graham, 28 Ill. 73; I. C. Ry. v. Grabill, 50 Ill. 241; C. & P. Ry. v. Stein, 75 Ill. 41; Decatur v. Howell, 92 Ill. 19; P., Ft. W. & C. Ry. v. Reich, 101 Ill. 157; Rigney v. Chicago, 102 Ill. 64; C. & W. I. Ry. v. Ayres, 106 Ill. 511; L. E. & W. Ry. v. Scott, 132 Ill. 429; C. M. & St. P. Ry. v. Darke, 148 Ill. 226; C. & A. Ry. v. Robbins, 159 Ill. 598.

In Patterson v. The C. D. & V. Ry. Co., 75 Ill. 588, appellant filed a bill to enjoin the use by appellee of a side track which it had laid down across the public highway on which his house fronted, and then ran alongside his dwelling and" within three or four feet of it. After crossing the street the track lay on the property of the appellee. A demurrer to the bill was sustained and the bill was dismissed. Upon appeal the Supreme Court say : “So far as respects the claim on account of damage, the demurrer was rightly sustained, according to a decision of this court at the present term in the case of Stetson v. The Chicago & Evanston R. R. Co., ante, p. 74, where it was held that, in case of a claim of consequential damages to land on account of the operation of a railroad, where no part of the land claimed to be affected was taken for the use of the road, a bill in chancery would not be entertained to enjoin the use of the railroad until «such damages could be paid or assessed. We regard that decision as covering the whole ground of the present bill, as respects damages, and it must control.” Upon the proposition that the ordinance, under which appellee claimed to have laid this track, did not give appellee the right to cross the street in question, the court says: “Without undertaking any decision 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 a case, at the suit of a private individual, enjoin the operating of a railroad.”

In the Stetson case, supra, the court announce : “It may be regarded as the settled law of this state, an owner of an abutting lot cannot prevent the use of a street for a railway when such use is permitted by the city and is authorized by an act of the legislature.” They also say that the damages, if any, are consequential and arise from the lawful use of the adjoining street, in which complainant has no interest except an easement in common with the public; that the constitutional provision is, “ private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury as shall be prescribed by law.”

In Doane v. Lake St. El. R’d Co., 165 Ill. 510, the same doctrine is laid down, and many cases are cited sustaining the proposition that “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 pl^sical taking of the land, injunction will not lie to enjoin the taking, the remedy being an action at law for damages.” That the injury done to the complainant is depreciation of his 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.” * * * That “Where the use of a street has been legally authorized, as held in McCartney v. Chicago & Evanston Railroad Co., 112 Ill. 611, Hunt v. Horse and Dummy Railway Co., 121 Ill. 638, Chicago, Burlington & Quincy Ry. Co. v. Quincy, 136 Ill. 489, and Metropolitan City Ry. Co. v. City of Chicago, 96 Ill. 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.” * * * “ 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.”

In People v. Harris, 203 Ill. 272, appellee petitioned for a writ of mandamus praying that the mayor and aldermen of the city of Champaign and the owners of certain property be directed to remove a certain bay window which encroached upon the public highway. The court sustains the contention of appellee, saying: “ In this case the individual is not undertaking to recover damages, nor can it be said that an individual is complaining, but it is the public complaining though one of its citizens.”

The law of this state upon the matters at issue in the present action is laid down in these cases, and by them we are governed.

It is unnecessary to consider the other contentions of appellants.

The decree of the Circuit Court is reversed, and the cause is remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.