Corcoran v. Chicago, Madison & Northern Railroad
37 N.E. 68
Ill.
1894
Check Treatment
Mr. Justice Shope

delivered the opinion of the Court s

It is contended by appellant that the action of the city in adopting the ordinances before us amounted to a vacation of the portion of the street in question, and that thereupon the part thus vacated reverted to the original proprietor and became a part of the abutting lots, and that appellant, by virtue of his lease and possession, has a vested interest therein, of which he could not be deprived without compensation first having been made. Conceding the purpose and object of the ordinances to be the vacation of that portion of Archer avenue lying north of the one hundred feet to be condemned, as therein provided, they were illegal and invalid, and therefore ineffectual to vacate such portion of the street. The two ordinances were passed at the same time, and, within the construction placed upon them in Ligare v. Chicago, 139 Ill. 46, must be regarded as one ordinance. Whether, if said ordinances were effectual as vacating a part of the street, the land would revert to the original proprietor, and appellant have such an interest therein, under his lease, as should be first compensated for under the law of eminent domain, it is not necessary here to be determined. If such was the case, it might well be that a court of equity would entertain jurisdiction to prevent the threatened invasion of his rights.

The ordinance in question was illegal and void, for the reason that its purpose and effect were to give a portion of the public highway, dedicated to the public use, to railroad companies, to be by them occupied by railroad tracks, to the exclusion of the generál public. The municipal authorities have no power to vacate a public street, or any portion thereof, for the sole benefit and use of a private individual or corporation. The streets of the city, by the platting and dedication thereof, became public highways for the use of the public at-large, in their entire width and length, as streets, and the city, though invested with the fee thereto, “has not the unqualified control and disposition of them. * * * At most it but holds them intrust for the benefit of the general public.” (Alton v. Transportation Co. 12 Ill. 38.) In Chicago Dock Co, v. Garrity, 115 Ill. 155, it was said, that “we recognize as unquestionable law that the use of the streets. * * * must be for the public, and that no corporation or individual can acquire an exclusive right to their use, or to the use of any part of them for private purposes.” In the late case of Smith et al. v. McDowell, 148 Ill. 51, the village board passed an ordinance vacating five by eighty-five feet of the public street, to afford an area-way for ingress and egress to and from the-basement of a building being erected on the abutting lot, and it was held that this action of the board was a perversion of their power to promote private interests, in violation of the-trust upon which the streets were held, and that the ordinance, therefore, was void. (See cases there cited.)

In Ligare v. Chicago, supra, in construing this ordinance,, the purpose and effect of it were held to be, the exclusion of all save the railroad companies from the portion of the street in question, and to give to the railroad companies the exclusive use and occupation thereof. This, under the authorities-before cited, the city had no authority to do, and the ordinances, whether they be regarded as intended to effect a perversion of a part of the street to the use of the railway corporations, or as one providing for the institution of condemnation proceedings, as in the Ligare case, was ultra vires and void. The validity of these ordinances was passed upon in Ligare v. Chicago, supra, and the reasoning of that case-need not be here repeated.

The bill in this ease is predicated upon the assumption that-the ordinance was, in effect, a vacation of the street; that the-part vacated reverted to the original proprietor, and that apIDellant, under his lease, had an interest in the north half of the street supposed to be vacated, upon which said lots abutted. The frame of the bill and the relief sought would seem to indicate a misconception, on the part of the pleader, as to the power of the municipality to adopt the ordinances in question. The ordinance, being void, was ineffectual to vacate the part of the street in question, and there could therefore be no reversion, and the right of appellant to maintain the bill upon the theory upon which it is framed necessarily fails.

If the ordinance permitting the laying of railroad tracks in Archer avenue could be regarded as not attempting to exclude the general public from the use thereof as one of the public streets of the city, but as subjecting it simply to an additional public use, it is well settled in this State that injunction will ñot be granted, at the suit of an abutting lot owner, to restrain such additional use. Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74; Patterson v. Chicago, Danville and Vincennes Railroad Co. id. 588; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 269; Truesdale v. Peoria Grape Sugar Co. 101 id. 564; Penn Mutual Life Ins. Co. v. Heiss, 141 id. 35. The abutting lot owner is remitted to his action at law to recover compensation for the consequential damages resulting to his property from the additional burthen imposed upon the street.

We have carefully examined the bill, and it discloses no wrong or damage, suffered or threatened, for which appellant has not an adequate remedy at law.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.