203 Ill. 576 | Ill. | 1903
delivered the opinion of the court:
The city of Chicago, one of the defendants in error, has filed its motion in this court to strike the briefs of its co-defendant in error, the Suburban Railroad Company, from the files, on the ground that its briefs are not in defense of the decree but are in aid of the plaintiff in error, and therefore not proper to be filed at this time. By the general rules of equity pleading all persons who are materially interested in the event of the suit or in the subject matter should be made parties, either as complainants or as defendants. It is wholly immaterial whether the interests of the several defendants are or are not in conflict with each other. (Parsons v. Lyman, 4 Blatchf. 432.) It follows, that each defendant may pursue that course in the litigation which he shall deem for his best interest. The motion is denied.
The real question at issue in this case is the interpretation of the ordinances of the town of Cicero passed August 20, 1881, and October 5, 1887. The railroad companies contend that the latter ordinance granted a perpetual right to the railroad company to lay, maintain and operate its railroad in the streets of the town, while the city of Chicago contends that the ordinance did not have this effect.
The first ordinance passed by the town of Cicero in 1879 granted the right to construct and operate a dummy railway in certain named streets of the town of Cicero to one Vandercook, and expressly limited the right to operate said railway to April 1, 1898, at which time the right was to cease unless further extended. The next ordinance, passed August 20,1881, confirmed the powers and privileges granted to Vandercook to the Chicago and Western Dummy Railway Company, and limited the right to operate said railroad to July 1, 1901, at which time the right and privileges should cease unless further extended. This ordinance made several changes from the first ordinance, principally in the route and the fare to be charged. On October 5, 1887, the town again passed an ordinance in relation to this street railway, which ordained “that in addition to the rights, privileges and franchises heretofore conferred upon the Chicago and Western. Dummy Railway Company by an ordinance passed August 20, 1881, entitled, * * * . which rights, privileges and franchises are hereby vested in and confirmed to the Chicago, Harlem and Batavia Railway Company, its successors and assigns, the further right is hereby given to said Chicago, Harlem and Batavia Railway Company,” etc. If this language means anything, it means that the rights granted in this ordinance are additional and further rights granted to the railway company not granted in the former ordinance, which ordinance is expressly named and identified by its title and date. These additional and further rights are granted “solely and only upon the terms, conditions, duties and obligations hereinafter in this ordinance set forth, and not upon any other terms, conditions, duties or obligations.” Section 3 provides that the rights and privileges herein granted are upon the express condition that it shall comply with all the terms, conditions and stipulations of this ordinance imposing terms, duties or obligations upon it, and provides a method of ouster of the rights and privileges herein granted, thereby “relegating said company to the condition that existed before rights hereunder were acquired.” In section 4 it is provided that trains shall be running within a certain time “over the route herein and in other ordinances described.”
While this ordinance grants a number of additional rights to the railway company, such as the right to operate a suburban passenger railway over the route prescribed in the ordinance of 1881, to lay a double track, to connect its tracks with the tracks of the Chicago and Great Western railroad and to use locomotives burning hard coal, it is also more specific and particular in guarding the rights of the town of Cicero, imposing additional burdens on the company, and justifying such additional burdens by the additional rights granted. A large number of the provisions of the former ordinance of 1881 are in nowise modified or altered, such as those relating to the gauge, the method of laying the tracks in the street, the charge for fare, the right reserved by the town to designate in what portion of the street the tracks shall be laid, to regulate the speedy and time and manner of running cars, etc. Nothing is expressly repealed in the new ordinance, and it in no place professes'to repeal or supersede the prescribed limit of time fixed by the old ordinance, but only to confer additional rights and privileges. It is difficult to see how language could make it any plainer that the ordinance of 1881 is not superseded, but only amended or added to, by the ordinance of 1887." All the additional rights granted are made subject to the additional burdens imposed, and it is expressly provided that a failure to observe these duties shall relegate the company to the condition that existed before these rights were granted,-—that is, to its rights under the ordinance of 1881. As there is nothing said about the time for which these additional rights are granted, they must be held to have been granted for the time specified in the original ordinance, unless it clearly appears from the later ordinance that such was not the intention. The mere fact that the first ordinance granted permission to operate a dummy railway to a corporation organized with more limited powers, and thé later ordinance permission to operate a suburban passenger railway to a company with general railroad powers, could not manifest such intention. No reason is perceived why a municipality should not limit its grant to a suburban passenger railway to a definite time, if it sees fit to do so. And this is the chief difference between the two grants. The right to lay a double track only enlarged the facilities of the road. The main object of the ordinance seemed to be to secure the connection with the Great Western railroad and through trains to its passenger station in Chicago, and it granted additional right of way for this purpose. It is conceded that these trains have been abandoned.
Nor can we assent to the doctrine propounded by the learned counsel for the plaintiff in error that a railroad company, by laying tracks in a street under authority from a municipality, acquires a perpetual easement in the street. If the grant were perpetual this might follow, but to say that a grant for a limited time conferred a perpetual easement would be a contradiction of terms. In City of Chicago v. Baer, 41 Ill. 306, this court said (p. 312): “The railway company has not become the owner of any portion of these streets in fee, but it has certainly, through its charter from the legislature and its contract with the city, acquired a property in them of the most valuable character, * * * and capable, like other property, of being sold and conveyed. The city council has made a contract with the company, by which it has granted to the latter what is substantially a leasehold interest in a portion of this street for a term, by the original ordinance, of twenty-five years. * * * It is wholly unnecessary to define, for the purposes of this case, what is the precise extent or nature of its property.” It is true, this case was partially overruled in Parmelee v. City of Chicago, 60 Ill. 267, but upon another point, and we there said: “To that extent only are the grounds taken in the Baer case affected by the decision of the Supreme Court of the United States, and we adhere to them still in all other respects.”
It is conceded by counsel that the doctrine is well established that a grant from the public is to be construed most strictly against the grantee, and in case of ambiguity nothing can be presumed in favor of the grantee. If there is any doubt as to the time for which these rights were granted, it arises from the fact that the ordinance of 1887 expressly purports to grant rights additional to those granted by the ordinance of 1881, and then fails to ordain anything in regard to the time limited in the old ordinance, which contains the express provision that the rights granted shall extend to July 1, 1901, “at which time they shall cease, unless the same are further extended.” The doubt, if any there be, must be resolved in favor of the public. The time limited for; the exercise of the rights and privilegies granted to the predecéssor of plaintiff in error having expired, the action of the city council was proper and the decree of the court was right.
In this view of the question it will not be necessary to consider whether the railroad company has violated the provisions of the ordinance, so as to give the city power to declare a forfeiture on those grounds.
A suggestion has been made in the briefs and arguments in this court that a necessary party has been omitted. There is no assignment of error raising the question. The complainant in the bill did not make the alleged mortgagee of the lessee a party, nor did the city do so in its cross-bill. While the question of the lack of necessary parties can be raised on appeal though not raised in the court below, (Gerard v. Bates, 124 Ill. 150,) still, as the record is presented we do not feel called upon to determine whether the omitted mortgagee was a necessary party or not.
At the close of his argument counsel for plaintiff in error claims that the court erred in decreeing" a forfeiture of the rights of the railroad company in Randolph street, because, as he says, by virtue of the plat widening Randolph street the railroad company has secured the same interest in the twenty-eight foot strip in the center of the street marked “C. H. & B. Right of Way,” and extending from Forty-eighth street to a point near Fortieth street, as though it had condemned it. The certificate of the platters states that they “have caused to be surveyed and platted a widening of Randolph street between the above named points, so that Randolph street shall be one hundred and sixty feet wide between,” etc. The report of the committee of the board of trustees of the town of Cicero, reporting on the plat, recommended the approval of the same and that the land be accepted for purposes named and designated on the plat, which report was adopted. The twenty-eight foot strip in the center of the street was in the original street as laid out years ago. The owners of the abutting property in their certificate state that they have caused to be surveyed and platted a widening of the street, so that it shall be one hundred and sixty feet wide. There has been no vacating of any portion of the street by the town authorities. The report that was adopted recommended the acceptance of the land for purposes named and designated on the plat. The only land that there was to be accepted was the additional strip on each side of the old street, and this additional strip was dedicated solely for the widening of the street. There was no implied vacation of the twenty-eight foot strip, and there could be no dedication of it to the railroad company. The previous rights of the company in this strip were not in any way enlarged by the acceptance of the plat by the town.
Finding no error the decree will be affirmed.
Decree affirmed.