216 F. 735 | 7th Cir. | 1914
This appeal involves principally the nature and effect of an ordinance of 1909 and an amendatory ordinance of 1912.
Prior to 1909 appellee and the Lake Shore, the Pennsylvania, the Baltimore & Ohio, and the Illinois Central Companies operated railroads that crossed each other and public highways at grade in the neighborhood of Seventy-Ninth street in Chicago. The street ran east and west; the railroads, in a general north and south direction. By the 1909 ordinance a comprehensive scheme was adopted to separate the grade of the street from that of the railroads and the grades of the railroads- from each other. At the point where appellee was to cross Seventy-Ninth street, the plan required the street to be depressed 17 feet, next above the street the elevated structure of appellee, and above that the elevated structure of the Illinois Central. To carry out this plan it was necessary for appellee to abandon its old right of way, and to procure a new right of way north and south of the street, the assent of the city to cross the street at the new location, and a new easement to cross the Illinois Central right of way. In the ordinance the city assented to appellee’s crossing the street at the new location. At great expense appellee secured a new right of way to fit the required point of crossing Seventy-Ninth street. Elevation work was to be completed by December 31, 1911. On that date work was progressing without objection from the city, hut nothing had then been done in erecting the superstructure over Seventy-Ninth street, and the Commissioner of Public Works had not issued or been requested to issue a permit for that part of the work.
In February, 1912, the city council passed an ordinance, amendatory of that of 1909, by which appellee was required to cross Seventy-Ninth street at a new location, and to cross the Illinois Central right of way either north or south of Seventy-Ninth street, so that at Seventy-Ninth street there should be two separate, single, elevated structures, instead of two at the same point, one superimposed upon the other.
'Thereupon appellee began this suit; and, after joinder of issues and production of proofs, the court decreed that appellee had a vested property interest in the right of way across Seventy-Ninth street as located by appellee under the 1909 ordinance; that the requirement of the 1912 ordinance that,appellee should relocate its right of way was illegal and void; that the commissioner should issue a permit for elevation work according to the plans of the 1909 ordinance; and that appellee recover damages from the city in the sum of $31,290.42.
An objection to the decree is based on the alleged insufficiency of the evidence to establish appellee’s acceptance of the 1909 grant. But in view of the admission in appellants’ answers, “That it is true that the various railroad companies, in said ordinance of 1909 named, accepted said ordinance, as by the terms thereof was provided,” it was needless for appellee to bring forward (and we will not examine) any evidence on that subject.
Appellee introduced its corporate charter and evidence to show that by foreclosures, reorganizations, consolidations, and leases, it acquired in the village of Hyde Park (now a part of the city where Seventy-Ninth street and the railroad crossings in question are located) all the lights granted to the original company that constructed the railroad now operated by appellee; and the parties have had an extended debate over the legal effect of that evidence. We refrain from setting out or discussing the details, for we conceive it sufficient to say that in 1909 appellee had legal capacity to accept the city’s grant, and the city is not concerned collaterally with appellee’s rights under other instruments.
The decree is modified by striking therefrom the award of damages, and ás so modified is:
Affirmed.