DocketNumber: No. 26385. Decree affirmed.
Citation Numbers: 41 N.E.2d 532, 379 Ill. 494
Judges: Mr. JUSTICE WILSON delivered the opinion of the court:
Filed Date: 3/16/1942
Status: Precedential
Modified Date: 1/12/2023
The plaintiff, Greenlee Foundry Company, filed its complaint in the circuit court of Cook county, seeking to enjoin the defendant, Borin Art Products Corporation and certain other defendants, from constructing a switch-track along Fourteenth street in the town of Cicero, and for a mandatory *Page 495 injunction to compel the defendants to remove part of said switch-track already laid.
The plaintiff Greenlee Foundry Company is a corporation engaged in the manufacturing business and an owner of property extending along Fourteenth street from the Baltimore and Ohio Chicago Terminal Railroad Company's right of way to Forty-seventh avenue, a distance of practically one complete block. The property of the plaintiff is bounded on the east by the railroad right of way, on the south by Fourteenth street and on the west by Forty-seventh avenue. On the south side of Fourteenth street and opposite the property of the plaintiff, is the property of Taylor Forge and Pipe Works which occupies a corresponding position on the south side of Fourteenth street. The contemplated switch-track would extend, if completed, from the right of way of the Baltimore and Ohio Chicago Terminal Railroad Company to the property of the defendants, located at Forty-seventh avenue and Fourteenth street, two intersecting streets in the town of Cicero. The defendants rely upon a certificate of convenience and necessity issued by the Illinois Commerce Commission and an ordinance of the town of Cicero, together with the consent of the Taylor Forge and Pipe Works, to use that part of Fourteenth street, which represents the easement which the Taylor Forge and Pipe Works has to the street proper, originally dedicated for street purposes, but the fee to which belongs to the aforesaid company. In the year 1923, a corporation known as the Limits Industrial Railroad Company undertook to lay a similar switch-track down Fourteenth street under the power granted it by the Illinois Commerce Commission in a certificate of convenience and necessity similar to that involved in this case and, also, by reason of the authority of an ordinance granted by the town of Cicero similar to that granted to the defendants in the present proceeding. The Limits Industrial Railroad Company filed a petition in the superior court of Cook county, seeking to *Page 496
condemn for its right of way a strip of land seventeen feet wide over and along Fourteenth street from the Baltimore and Ohio Chicago Terminal Railroad Company's main track to the property involved in this case. The trial was had and the damages assessed. There were several defendants and among others the Greenlee Foundry Company and the American Spiral Pipe Works. The latter company prayed an appeal to this court, which is reported in the case of Limits Industrial Railroad Co. v. American SpiralPipe Works,
The rights of the Borin Art Products Corporation and the other defendants who have joined in this appeal are in no way different from that of the Limits Industrial Railroad Company as pointed out in the two prior decisions. Consequently, it must be held in accordance with the previous adjudication of this court in LimitsIndustrial Railroad Co. v. American Spiral Pipe Works, supra, that the purpose is purely a private purpose and the certificate of convenience and necessity issued by the Illinois Commerce Commission is unavailing. Certain cases cited by counsel for the defendant to the effect that a railroad company has a right to build a spur-track to the property of others for a public purpose are without force inasmuch as the facts found in the cited case have negatived that position. This being a private purpose it necessarily follows that the town of Cicero had no power to pass an ordinance authorizing *Page 498
the use of the street for a purpose purely private in its character. (Gerstley v. Globe Wernicke Co.
It is earnestly contended by counsel for the defendants that the plaintiff has no right to equitable relief by injunction but that it should be relegated to its damages under a common law action. This, however, is not the law. This court in the case ofGinter-Wardein Co. v. City of Alton, supra, says: "It is urged that the plaintiff should be remitted to an action in damages rather than be permitted to pursue its remedy by injunction. This argument would presuppose the validity of the ordinance because if the ordinance is invalid, as we find it to be, then it purports to authorize an unlawful obstruction in a public street which would be a nuisance per se. (People v. Wolper,
An examination of the record discloses that the Baltimore and Ohio Chicago Terminal Railroad Company is itself not attempting to lay this track as a spur-track to be used as part of its system. While it does appear from the record that this railroad company agreed to furnish service after the track in question had been laid and connections made, nevertheless, this effort to lay a switch-track is not by any legally organized railroad company operating under the laws of the State. Under all the circumstances, as disclosed by the record, we are of the opinion, based largely upon the previous holding of this court in LimitsIndustrial Railroad Co. v. American Spiral Pipe Works, supra, that the purpose is purely a private purpose and does not conform to a public use.
The decree of the circuit court of Cook county is affirmed.
Decree affirmed.
Ginter-Wardein Co. v. City of Alton , 370 Ill. 101 ( 1938 )
Greenlee Foundry Co. v. L. I. R. R. Co. , 354 Ill. 11 ( 1933 )
The People v. Wolper , 350 Ill. 461 ( 1932 )
Limits Indus. R. R. Co. v. Pipe Works , 321 Ill. 101 ( 1926 )