122 Ill. 376 | Ill. | 1887
delivered the opinion of the Court:
The only questions that we are at liberty to consider, are-expressed in the three propositions in writing, presented by-counsel for appellant to the circuit court, and asked to be held, to-be the law, for no question of law arose upon the trial in any other manner.
First—It is provided by section 1, chapter 145, of the Revised Statutes of 18Y4, that it shall require a three-fourths majority of all the aldermen of the city authorized by law to-be elected by such city, to vacate or close any street or alley, such vote to be taken by ayes and noes, and entered upon the record of the council or board. No other body or officers or persons have authority in the matter. The records are open to the inspection of the public, and it is incumbent on any one ' acting on the faith that a street or alley is closed, to know what is the fact, unless he shall be prevented by those having authority to act for the city, from obtaining such knowledge. ¿There is no evidence in this record tending to show that the railroad company was prevented by those having authority to act for the city, from learning whether this vacating ordinance was adopted by the requisite vote of aldermen. The railroad company is therefore presumed to have known that it was not so adopted, and hence that it was invalid and ineffective for any purpose.
The deed first made to the city was never accepted by the city council. Indeed, it was never presented to it, having been lost by the city attorney, in whose custody it was placed, and the second deed was expressly rejected by the city council. The city attorney had no authority to accept-the deed, and any use he made of it, not having been by the authority of the city council, is immaterial. It is of the essence of an estoppel in pais that the party having authority to act in the matter, shall have knowingly done an act to influence the conduct of the other, and that the other must have acted on the faith of that act. Davidson v. Young, 38 Ill. 145; Schnell v. City of Chicago, id. 382; Bigelow on Estoppel, 480.
No one pretends that a person having no authority to do an act can, by his conduct, estop others not responsible for his acts; and so here, no reason is shown why any reliance should have been placed by the railroad company upon the acts or promises of a committee of the council, which was known to have no power itself to vacate streets, or upon the conduct of the city attorney, who was known to be equally destitute of such authority. Even then, if the case is one wherein the doctrine of equitable estoppel might be applied, which is not conceded, the first proposition asked is clearly erroneous as applied to the facts, and the court properly refused to hold it.
Second—The ordinance of 1853 does not assume to license an exclusive occupancy of the street. It only assumes to authorize the railroad company to use the streets named, “so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, etc., and other machinery and fixtures, to be used or employed by them in operating their said road, subject, however, to this proviso: ‘That the same shall be occupied with as little detriment and inconvenience to the public as possible, and if said railroad company shall find it necessary, in crossing any of said streets, to raise embankments across the same, the streets crossing said embankments shall be so graded as not to make their said embankments an obstruction to crossing the same.’ ” This is but a provision for a joint use with that portion of the public having occasion to use the streets, adopting other modes of travel. (Pittsburg, Fort Wayne and Chicago Railroad Co. v. Reich, 101 Ill. 157.) And the streets being open still for general public use, the ordinance prohibiting their obstruction is within the municipal power. Illinois Central Railroad Co. v. Galena, 40 Ill. 344; Toledo, Peoria and Warsaw Railioay Co. v. Town of Chenoa, 43 id. 209.
Third—The facts clearly show, and there is no evidence tending to show otherwise, that the city did not accept the deed of appellant, as assumed in this proposition. The first proposition not being maintainable, there is no ground whatever upon which this can rest.
The legal principles enunciated in the opinion of the Appellate Court, (St. Louis, Alton and Terre Haute Railroad Co. v. City of Belleville, 20 Bradw. 580,) as well as the judgment rendered by that court, have our concurrence.
The judgment is affirmed. Judgment affirmed: '
