Lead Opinion
delivered the opinion of the court:
The Pittsburg, Ft. Wayne and Chicago Railway Company, one of the plaintiffs in error, is the owner, and the Pennsylvania Company, the other plaintiff in error, is the lessee, of the.tract of land occupied by the Union Passenger Station in Chicago, bounded by Madison, VanBuren and Canal streets and the Chicago river. Several railway companies use this station under an agreement which provides that the Pennsylvania Company shall have control of the station and property. It is alleged that passenger trains to the number of 233 arrive and depart from the station every twenty-four hours; that the average daily number of passengers arriving and departing is over 31,000; that the pieces of baggage received and delivered daily number over 2900, and the United States mail received and delivered averages 178 tons per day. The passenger station fronts on Canal street, and. the entire length of the building on that street is 1070 feet, with thirty entrances in constant use in the transaction of business. There are five other stations at different places in Chicago. All tickets beyond the terminus at Chicago, and known as “through tickets,” have attached thereto a coupon for conveyance through the city of Chicago from this station to the station of the connecting line of railway, and each railway company entering the station has a contract for the use of a line of coaches for the performance of this service called for by the coupon. All coaches and wagons leaving the railway station perform this service of carrying passengers and bag'g'ag'e, and stand in front of the station as long as necessary to receive passengers, baggage and mail.
On December 31, 1885, the city council of the city of Chicago passed an ordinance establishing stands, which was approved by the mayor, and which provided that “any duly licensed hackney coach, cab or other vehicle for the conveyance of passengers may stand, while waiting for employment, at any of the following places and for the period of time hereinafter provided: Stand No. 1. ■—The north side of Washington street, between Clark and LaSalle streets. Stand No. 2.—That portion of the west side of Clark street beginning fifty feet from the south-west corner of Randolph and Clark streets and running thence to Washington street. Stand No. 3.—The east side of LaSalle street, between Washington and Randolph streets. Stand No. 4.-—The east side of Canal street, occupying one hundred and ten feet, between Adams and Madison streets, as the superintendent of police shall direct. Stand No. 5.-—-All theatres and other places of public amusement fifteen minutes before the conclusion of the performance. Stand No. 6.—At all railroad depots ten minutes previous to the arrival of all passenger trains. Stand No. 7.—On all such street" corners from ten P. M. until sunrise, as the superintendent of police shall designate. Stand No. 8. —At such other places where the occupants of the premises in front of which it is desired to stand for employment shall give permission, in writing, to the owner or driver so to do, and it shall be approved in writing by the superintendent of police: Provided, it shall not be lawful to stand for employment in front of a hotel where such stand has been established on the opposite side of the street from such hotel.”
On January 20, 1896, the city council passed another ordinance, as follows: “That when, at or near any railway passenger depot in the city of Chicago, a place has been or shall be designated as a licensed carriage stand, it shall be lawful for the driver of the first double and first single vehicle in line to stand in front of such railroad depot and solicit business, provided such driver shall not, in so soliciting business, obstruct the sidewalk or stand thereon at a greater distance than two feet from the curb line.”
Hack stands Nos. 1, 2 and 3 are in front of public property. Hack stand No. 4 is in front of the railroad station. Plaintiffs in error allege in their bill that since the passage of the ordinance this stand in front of the station has had hacks, cabs and express wagons standing continuously, against the protest of the complainants, in front of the station for a distance of about three hundred feet from the south side of Madison street, and that they occupy this stand continuously from seven o’clock A. M. until ten o’clock P. M., and the drivers occupy a part of the sidewalk, soliciting passengers and bag’gage. It is averred that fifteen hacks and coupés and six express wagons, and from eighteen to twenty men, are at this hack stand continuously during the hours named; that twenty-three to twenty-five horses are fed daily at the stand, and that the drivers of the first single and first double vehicles have stood in front of the main entrance of the passenger station soliciting business.
On February 24, 1896, the plaintiffs in error filed their bill alleging the foregoing facts, and charged that the space in front of the station is necessary for the transaction of the business to which the station is devoted; that said ordinances are illegal and void; that the interference, interruption and daily damage and inconvenience to complainants and occupants of the station constitute irreparable damage; that the hack stand presents ingress and egress to and from their property, and that its establishment is a damage and interference with their private rights, and causes an unjust burden upon their property without compensation, and gives for a private use a portion of Canal street in front of their property which,is held in trust by the city of Chicago solely for use° as a public street'. The city of Chicago and John J. Badenoch, superintendent, were made defendants, and the bill prayed for an injunction restraining them from continuing the stand for hacks and express wagons, and from permitting the drivers of first single and first double vehicles to occupy the sidewalk in front of the station for the purpose of soliciting passengers.
On leave granted for that purpose, Thomas J. Doyle and Walter Owen, representing the hackmen occupying this stand, were admitted to the suit and filed answers denying that the ordinances are illegal; or that the hack stand prevents complainants from the nse of, or ingress to and egress from, their property; or that the space in front of the station is necessary for the transaction of the business of the station, or that the portion occupied by the hack stand is necessary or important for such business; alleging that along the entire space occupied there is no public traffic which is interfered with or damaged by the hack stand, and that on the station grounds and premises of the complainants, and at the entrance to the power house, are stationed hacks and cabs belonging to another proprietor, which wait there for passengers by an arrangement with the complainants.
No answer was filed by the city of Chicago, but it appeared by its corporate counsel. Replications were filed to the answers of Doyle and Owen, and on the hearing, by agreement, the application for injunction was made a final hearing, and affidavits were filed in support of the bill and answers. On hearing the circuit court found that' the ordinance passed by the city of Chicago on the twentieth day of January, 1896, and which went into force on the twenty-eighth day of January, 1896, entitled “An ordinance regulating the drivers of vehicles at railroad depots,” was illegal, null and void, and the enforcement thereof should be restrained, as prayed in complainants’ bill of complaint. The court further found that the ordinance passed by the common council of the city of Chicago on the thirty-first day of December, 1885, entitled “An ordinance establishing hack stands,” published as section 1705 in the laws and ordinances of the city of Chicago published in 1890, is a valid ordinance so far as it establishes stand No. 4, upon the - east side of Canal street, occupying one hundred and ten feet between Madison and Adams streets as the superintendent of police shall direct, and that said ordinance is a reasonable and valid exercise of the powers conferred upon the common council of the city of Chicago to the extent of the frontage of one hundred and ten feet named in said ordinance.
The title of the streets is vested in the city, and it has the conservation, control, management and supervision of such trust property, and it is .its duty to defend and protect the title to such trust estate. The city has no power or authority to grant the exclusive use of its streets to any private person or for any private purposes, but must hold and control the possession exclusively for public use, for purposes of travel and the like. (Field v. Barling,
The depot of the complainants, extending over one thousand feet in length, is for the use of its passengers entering therein or departing therefrom over the different lines of railways which receive and discharge passengers therein. A railroad company, whilst in a certain sense a private corporation, is in many other respects a public corporation and amenable to public control, and different from a mere private corporation. Such a corporation is invested with extraordinary powers, under which it may condemn a right of way, and by the exercise of eminent domain take to its own use, on payment of damages (or, rather, of compensation,) found by a jury, the property of others against the will of the owners, and use and exercise control over it for its corporate purposes.. Invested with such power it becomes more than a mere private corporation, and in consequence of its vested powers, in every character, it partakes of a public corporation, and is, and always must be, held amenable to public control.
One of the duties discharged by the various railroads entering this depot is the carriage of passengers. Prom the facts shown by this record, on an average over thirty-one thousand passeng'ers are received and discharged daily at this depot. There are five other depots in the city of Chicag'o at which passengers arrive and depart. The transfer of passengers from one railroad depot to another, or their transfer to various places in the city which they may be desirous of reaching, renders means of transportation necessary by which passengers so arriving and desiring to depart may have access to the various railroad depots or to other places in the city to which access is desired, and this, in many cases, is most conveniently met on the part of the traveling public by the use of hacks, which, to be of advantage, must be so accessible that unnecessary waste .of time and inconvenience in trying- to find the same may not result.
Recognizing that the use of this depot for the purposes for which the land was acquired on which this building was erected, and the use of the same by the railroad companies having access thereto, cannot be prejudicially interfered with by any ordinance of the city to the damag'e of the complainants, the question as to'public and private rights is presented. It does not appear that ingress to and egress from complainants’ property is prevented in counection with the complainants’ building. It does appear that those who control this depot (complainants herein) have permitted other persons to have a lease on certain ground belonging to and connected therewith, on which such persons may stand their cabs and carriages while awaiting passengers thus arriving at said depot.
„ Taking into consideration the character of buildings such as depots of the railroads in the city,' and recognizing their right to exercise the power of eminent domain, it may well be held that such buildings are in the nature of public buildings. It never has been held that the city council may not establish hack stands in front of public buildings in the city, and no public want of access to such a convenience as hack stands can be greater on the-part of the traveling public at any other point than at the depots of the city. A hack stand cannot, of itself, interfere with passenger or freight traffic of a railroad unless it prevents access to or egress from its buildings. In Doane v. Lake Street Elevated Railroad Co. supra, it was held (p. 519): “The real ground upon which relief by injunction is denied in such cases is, that the use of a street, being within the purposes for which it is laid out, and therefore a proper use, the right to occupy is properly a question between the defendant and the municipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public generally, the individual being left to his action for damages for any injury resulting to his property.”
It appears from the record that certain property owned by the complainants and adjacent to the depot was leased to one Leroy Eighme for use as a hack stand, and that the lessee, by using the property and excluding others therefrom, would have privileges of access to the depot and of carrying passengers which others would not have. While we recognize that the companies which control the depot grounds and buildings may make needful rules for their regulation, yet they cannot grant special privileges beyond the limits of their own land, and make a contract with one which gives him the right to carry passengers from their depot beyond their own lines and exclude others from such privilege of carriage. If such companies control the, transportation of passengers and merchandise beyond their own lines, such power might be exercised solely for their own benefit and not for that of the public. They cannot make a rule under which certain persons are allowed to occupy the streets or control travel and exclude others therefrom, regardless of any wrongdoing or misconduct on the part of the persons so excluded. An attempt to exercise a power of that character would be unreasonable and unauthorized under the law. Montana Union Railway Co. v. Langlois, 8 L. R. A. 752, and authorities cited; Old Colony Railway Co. v. Tripp,
Kalamazoo Hack and Bus Co. v. Sootsma,
Montana Union Railway Co. v. Langlois,
McConnell v. Pedigo & Hays,
The law furnished a full and complete remedy to the complainants for any injury to their property by the creation of a hack stand by the city. The complainants may for any injury sustained have a remedy at law separate and distinct from the public interests, and have compensation granted for damages sustained, which can be determined and admeasured by a jury, without resort to the extraordinary remedy by injunction. (Chicago and Western Indiana Railroad Co. v. Ayres,
There was no error in the decree of the circuit court and its decree is affirmed.
5ecree affirmed.
Dissenting Opinion
dissenting:
The occupation of a street as a place for the owners of hacks, carriages and express wagons to keep them in the intervals when they are not employed in the carriage of persons or property and while waiting for such efnployment, is purely a private use. It is of the same nature as the occupation of premises for a livery stable or stable yard, and in Rex v. Cross, 3 Camp. 224, Lord Ellenborough characterized it as making a stable yard of the king’s highway. In Branahan v. Hotel Co.
A large part of the opinion is taken up with the proposition that a railroad company cannot grant the exclusive privilege of going upon its depot grounds to one hackman and exclude other carriers of passengers from like privileges. But that has nothing whatever to do with this controversy, either as matter of fact or question of law. The entrances and exits for passengers are near Adams street. The next street north is Monroe street, and the second street north is Madison street. It appears from the answers and proof that carriages belonging to Leroy Eighme are permitted to stand for the service of passengers.at the power house next to Madison street, north of the passeng'er station, on the grounds of the railroad company, and his agents solicit passengers and call the carriages from the entrance by pressing an electric button. The evidence is that he was allowed this privilege and was required to keep neat and clean carriages, with drivers in uniform, and suitable and satisfactory horses for drawing the carriages, and to charge no more than the fare ordinance of the city of Chicag'o. There is no allegation in the answers, nor any testimony, that complainants attempted to give him any rights on the public street. No relief was asked by the defendants in respect to going upon the station grounds and occupying complainants’ premises equally with him, and none could have been granted. So far as the equal rights of hackmen are concerned, the circuit court by its decree, which is affirmed, held the ordinance which permitted them to solicit passengers and ply their business in front of the passenger station to be void, and left the agents of Eighme to solicit passengers and call carriages at that place, while it sent the hackmen to the hack stand between Madison and Monroe streets, about a block distant. With that decree the hackmen were content and did not appeal or assign a cross-error. The authorities cited and quoted from in the opinion to the effect that a railroad company cannot give one hackman exclusive access to its station, and the observations touching.public duties, public control and the granting of monopolies and special privileges, do not relate to any question in the case and cannot influence the decision.
As to the propositions of law pertinent to the case, the first, as stated above, is the law and is sustained by the unanimous opinions of all courts. The remaining propositions seem to me to be inconsistent with the first and to be destructive of public and private interests, and I feel compelled to record my dissent.
I cannot see how the public character or public ownership of adjoining property can in any way change the legitimate uses of a public street. I do not see how the conclusion that a street may be diverted to private use for a hack stand follows from the fact that the adjacent property is owned by the public or is used for a State house, court house, public school, public library, engine house or other building that may be devoted to public use. If a street may be perverted from its general uses, as such, because it adjoins public property and be devoted to the private uses of hackmen, it may be occupied for any other sort of business with the public. (Branahan v. Hotel Co. supra.) There is no greater public want of access to a hack stand than to stands or booths where articles which the public is accustomed to use are sold, and a city is neither bound nor authorized to furnish premises for either kind of business. In fact, a hack stand does not supply any general public want, but is a convenience to only a very small fraction even of the traveling public. It seems to me absurd to say that because property is owned by the State for a State house, or the county for a court house, or by a school district for a school house, that the city may obstruct the street in front of it and turn it into a market place or a stable yard. So, too, the power of eminentOdomain may be invoked to acquire property for these public uses and for parks and other public purposes as well as a railroad station, but I cannot see how that has anything to do with the legitimate uses of a street.
The undisputed facts in this case are, that under the ordinance establishing this hack stand an average of fifteen hacks and coupes and an average of six express wagons, with from eighteen to twenty men, occupy the allotted space along the sidewalk in front of complainants’ property continuously from 7 A. M. to 10 P. M.; that from twenty-three to twenty-five horses are fed there one or more times daily, and that the standing of so many horses, and the custom of feeding them there, create a great amount of dirt and filth. This constitutes as much a permanent obstruction as a fish stand, fruit stand, or any other business carried on at the same place would be. It is necessarily an obstruction and interference with the ingress and egress to and from complainants’ property, and the fact that there may be enough room left to enable them to transact their business is no justification for it. The samé thing might be said of residence property,—that the owner would have room enough left although a hack might stand in front of it continuously. If the owner did not keep a carriage and had no driveway from the lot to the street, it migb t be said that he had no need for the ingress and .egress to and from his property to the street,—and that is the most that can be said here. The owner’s right is that his easement shall not be interfered with unlawfully, and to say that an obstruction, such as a row of hacks and express wagons, does not obstruct is a mere solecism. Any permanent obstruction to travel, whether it be little or great, is an encroachment on the public right and constitutes a nuisance, and the city has no right to permit such an obstruction, so as to deprive the public and the adjacent property owners of the use of streets. Smith v. McDowell,
A city has no right to obstruct its streets so as to deprive property holders of free access to and from their lots, (Stack v. City of East St. Louis,
In Rex v. Russell, 6 East, 427, the defendant was found guilty, upon an indictment for a nuisance, for wrongfully and unlawfully causing and permitting twenty wagons to stand or remain for a long time, viz., ten hours on each day, before his warehouse, situate in a public street and highway, called Southgate street, in London. The court said, in sustaining the conviction (p. 280): “It should be fully understood that the defendant could not legally carry on any part of his business in the public street to the annoyance of the public; that the primary object of the street was for the free passage of the public, and anything which impeded that free passage, without necessity, was a nuisance; that if the nature of the defendant’s business was such as to require the loading and unloading of so many more of his wagons than could conveniently be contained within his own private- premises, he must either enlarge his premises or remove his business to some more convenient spot; but the courts could not be parties to any compromise for his using the street as his own for any part of his business!”
In Rex v. Cross, supra, the defendant was proprietor of a Greenwich stage coach, which came to London» twice a day and stood for three-quarters of an hour in the street near Charing Cross station, waiting for passengers where stages were accustomed to stand. Lord Ellenborough, in sustaining a conviction, said: “Every unauthorized obstruction of a highway to the annoyance of the king’s subjects is an indictable offense. Upon the evidence given, I think the defendant ought clearly to be .found guilty. The king’s highway is not to be used as a stable yard. It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance. A stage coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time, and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of another. No one can make a stable yard of the king’s highway.”
In Cohen v. Mayor of New York,
The city of Cincinnati, by ordinance, established a hack stand on the side of Central avenue, in that city, next to the property of the hotel company. In Branahan v. Hotel Co. supra, the court sustained a perpetual injunction at the suit of such abutting owner, and said: “This ordinance granted a permanent use of the street for mere private uses. As well might the city authorize permanent booths or structures for the use of dealers in the various articles of trade. Having no rent to pay, the occupants could accommodate the public at better rates. The supervision and control of the public highways of a city is a public trust, and while additional uses may be imposed, not subversive of or impairing the original use, such as laying down gas and water mains, yet the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as the means of access to his property, cannot be materially impaired. The city has the right to regulate hackney coaches, and also-tbe right to appropriate private property for the use of the corporation, but it has no power to appropriate the easement of an adjacent owner to a mere private use.”
So in McCaffrey v. Smith, supra, the court enjoined the use of a street in the village of Saratoga, adjoining plaintiff’s property, for a hack stand, under the assumed authority of a village ordinance, upon the ground that the village had no authority to pass such ordinance. The court, in holding this ordinance illegal, said: “The public interest in the highway is nothing but an easement, which gives to individuals the right to pass and re-pass on foot or with animals and conveyances, and, as an incident, they may do all acts necessary to keep the highway in'proper repair for traveling purposes. Any use of the highway except for the purposes of traveling and the making of necessary repairs under the direction of proper authorities, constitutes a trespass against the adjoining property owner. * * * But the legislature had not the power, neither had the municipal authorities, against the adjoining owner, to confer upon any person the right to make use of the highway for any other purpose than to pass and re-pass, without the consent of the owner of the fee.” See, also, 2 Dillon on Mun. Corp. sec. 660; Commonwealth v. Passmore, 1 S. & R. 217; Laing v. Mayor,
These authorities establish that such a use as is here attempted to be made of Canal street is a perversion and violation of the trust on which the city holds the street, and I cannot agree to the holding that such use cannot be enjoined at the suit of complainants, as abutting owners. In the foregoing opinion such a holding is rested on the ground that there is a remedy at law, by an action for damages. In the first place, that question cannot be raised in the case. It was not raised in the circuit court by demurrer, answer, or in any other way. Cases already cited show that the subject is not foreign to equity jurisdiction, which has been freely exercised, and the question not having been raised below cannot be brought into the case here. (Stout v. Cook,
The cases cited in the opinion do not sustain its doctrine. In Murphy v. City of Chicago,
Where there is a substantial legal right and a threatened wrong to which a party is not bound to submit, the amount of damages which will result from the illegal and wrongful act does not bar relief in equity. In Field v. Barling, supra, this question was disposed of, and it was said that irreparable injury does not mean that it must be very great, and the fact that no damage can be proved, so that in an action at law the jury could only award nominal damages, often affords the very best reason why a court of equity should interfere. The question is whether tb.e private use is an encroachment on the street, and if there is a breach of the trust upon which the streets are held by the city, the abutting owner may have relief although the injury may be small.
These cases make it very clear that the remedy of complainants is in' equity. If the use is unlawful and foreign to the purposes of a street, the abutting owner may have an injunction, and if, as assumed in the opinion, the grant of such use is legitimate and within the power of the city, the remedy at law which is offered to" the complainants cannot be against the city, but must be against the various hackmen who occupy the hack stand. Not only would the injury not be compensated for in the trifling damages which would be obtained in the numerous suits against each individual hack driver, where the cost and trouble would exceed the recovery if it should ever be collected, but a new action would have to be brought against every subsequent hackman who should place his hack there under color of the city ordinance. To remit an injured property owner to such interminable litigation and a multiplicity of suits fortrifling damages in each particular instance would be a mockery of justice.