delivered the opinion of the court:
First — Thе first contention made by appellants is, that the ordinance for the opening of said street makes no provision for acquiring, by condemnation or otherwise, the right to cross the main line of the Chicago, Burlington and Quincy Railroad Company where-it is intersected by sаid proposed street, and that under the authority of Hutt v. City of Chicago,
Second — It is next contended that the city cannot acquire the property sought to be taken in this proceeding for street purposes by reason of the fact that the city heretofore sought to acquire, by condemnation, this same property, and that proceeding is a bar to this proceeding. We are of the opinion the former proceeding is not a bar to this proceeding. The former proceeding occurred more than five years ago and did not cover the same property as this, and there is nothing in this proceeding to impeach the good faith of the city of Chicago. City of Chicago v. Goodwillie,
Third — It is further urged that there is a defect of parties in this proceeding, in this: that the Chicago Steel Foundry Company was not made a. party. This was true at the inception of the case, but the" appearance of the Chicago Steel Foundry Company was subsequently entered and thereafter there was no defect of рarties. Grier v. Cable,
Fourth — It is also alleged that the elevation ordinance does not authorize the extension of the proposed street across the right of way of the Chicago, Burlington and Quincy Railroad Company’s main line. The elevation ordinance provides for a subway at the point in question, and, regardless of the question as to where the fee of the part of the street at thаt point will rest, the city will enjoy an easement in the railroad company’s right of way for subway purposes at that intersection, and thе opening of the street cannot be defeated by reason of the fact that the city has not condemned the right of way underlying the main line, in this proceeding.
Fifth — It is contended that the court erred in declining to permit the Illinois Vinegar Manufacturing Company to make рroof that it had an easement in the switch' track of the Chicago, Burlington and Quincy Railroad Company, which crosses said propоsed street at the surface and connects with its loading platform, and that the opening of said proposed street will either require the elevation of said switch track or its removal, and that in any event said appellant’s property- will sustain great damage and be largely depreciated in value for the purposes for which it is now used. The offer of proof was, that in 1895 an arrangemеnt was entered into between the Chicago, Burlington and Quincy Railroad Company and the Illinois Vinegar Manufacturing Company, whereby, in cоnsideration of the right of the railroad company to extend the foundations of its retaining walls- underneath the surface of the land of the Illinois Vinegar Manufacturing Company, the Illinois Vinegar Manufacturing Company should have the right to use the switch track connected with its lоading platform; that said arrangement was consummated by the construction of said retaining walls and the switch track; that the Illinois Vinegar Manufacturing Company has had the use of said switch track since that time and is now using said switch track in connection with its plant, and that to remove or elevate the switch track would necessarily require many changes in the construction and operation of its vinegar plant. The Illinois Vinegar Manufacturing Company had filed a cross-petition fully setting up all the facts relied upon by it as showing its interest in the switch trаck and the damage to its property by the elevation or removal of the switch track, and we are of the opinion the proof offered by it to sustain the allegations of its cross-petition should have been admitted.
It is urged by the city that the Illinois Vinegar Manufaсturing Company has an adequate remedy for any damage which it may sustain against the city if the city should interfere with its switching privileges as they nоw exist, and that for that reason the proof was properly excluded. We cannot assent to that view. If the Illinois Vinegar Manufaсturing Company, by contract, has a right to have the switch now connected with its shipping platform maintained, it is manifest it cannot be deprived of that right by condemnation when it has filed a cross-petition setting up such right, without having an opportunity to he heard in. the condemnаtion proceedings upon that question. This view is fully sustained by the following authorities: Chicago, Peoria and St. Louis Railway Co. v. Wolf,
The appellants have urged in their briefs other grounds of reversal, but we deem thеm to be without force.
The judgment of the circuit court as against the appellant Henry H. Walker will be affirmed, but as to the appеllant the Illinois Vinegar Manufacturing Company it will be reversed and the cause as to that company remanded to the circuit court for a new trial, Henry H. Walker to pay one-half the costs in this court.
Reversed in part and remanded-