Coffeen v. Chicago, M. & St. P. Ry. Co., 84 F. 46

84 F. 46 | 7th Cir. | 1898

WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

We are of opinion that the motion to dissolve the temporary injunction should have been sustained. The privilege granted by -the ordinance to the appellant was to construct and maintain for ten years, between the points and on the streets named, a switch “connecting with the tracks of the Pittsburgh, Cincinnati & St. Louis Railroad Company”; and it is net alleged nor shown that the appellant had any purpose to lay down a track without that connection. By the contract alleged that company undertook to construct and to operate the switch, and did construct it, but in violation of its contract and obligation, at the instance of the complainant, severed the connection and destroyed the track. Having procured this to he done, the complainant forthwith brought its bill to prevent reconstruction. The conduct of the complainant, as disclosed in the answer, and. not denied, if not in itself a bar, we cannot but regard as a serious obstacle to the granting of the relief prayed in the bill. When an appeal is to be made to a court of equity, it is hardly permissible that there shall first he a resort to force and arms, or to deceit, in order to anticipate the fruits of the suit, or to secure a more favorable position from which to conduct the litigation. To say the least, a complainant appearing in such an attitude should not be allowed the benefit of presumptions in its favor in respect to matters not alleged or proved. Without procuring the necessary connection with the Pittsburgh, Cincinnati, Chicago' & St.' Louis track, the appellant, besides being without authority, can have no motive to relay the switch; and . it is not to be presumed that the railroad company, especially in view of its contract, will refuse to permit the connection to be made. If the ordinance permitting the switch to be laid is valid, or can be ehalienged only in the name of the city or by the public prosecutor, it is not right that the appellant should be enjoined, on the theory that only private aims were to be subserved, from relaying the switch, reestablishing its connection with the railroad track, and securing its operation by the railroad company under the agreement already made for that purpose. He ought not to be forbidden to take the steps necessary to establish the situation on which it was suggested that it would be in order to dissolve the injunction.

The merits of the appeal, it follows, must depend upon the question whether this case comes within the doctrine declared in Doane v. Railroad Company. We think that it does. ' It is true that the switch is described as private, but it was at the same time provided that the privileges granted were to be subject to all ordinances concerning railroads, and when connected, as it must be, with the track of a railroad, it will necessarily become a part thereof. It is common knowledge that iñ a city like Chicago such structures must be numerous. They are indispensable auxiliaries to the conduct of railroad traffic, and to the convenient doing of the business of a commercial city. They are therefore a proper subject of municipal regulation and control, and, that being so, it follows that the validity of the ordinance can be questioned, on the ground alleged, only by information brought by the attorney general or other officer acting in the name of the people of the state, or by a bill for injunction brought by the city, and that the construction and use of the switch cannot be restrained at the suit of an owner of abutting property. See, also, Trusdale v. Sugar Co., 101 Ill. 561. The appeal is therefore sustained, and the cause remanded, with direction to sustain the motion to dissolve the . injunction.