215 Ill. 456 | Ill. | 1905
delivered the opinion of the court:
The demurrer to the bill being sustained, the sole question is whether it states such a cause of action as will entitle appellant to the relief sought.
It is insisted by counsel for appellant that the construction and operation of freight tracks 'and yards, with the attendant consequences, though not a nuisance per se, become such by reason of their being located in a neighborhood which had for years been used for residence purposes. Many cases are cited in support of this contention, but upon examination they are all found to be cases of threatened private nuisances. A railroad company is a common carrier of passengers and produce. It owes a duty to the public to perform its functions promptly and faithfully, and in order to perform that duty it is necessary that it should have sufficient room for freight yards, houses, depots, switch tracks and other necessary facilities and conveniences. The duties, rights and relations of railroad companies to the public and private individuals have been before this court on many occasions. At the April term, 1859, in the early case of Moses v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 21 Ill. 515, the question arose as to the right of city authorities to use certain streets in the city of Chicago for railroad tracks, and it was there held that where by a city charter local authorities are vested with exclusive control over the streets, and those authorities grant permission to locate railroad tracks along a street, the owner or occupant of property fronting on the same cannot enjoin the laying of such tracks. That case has been followed by a line of decisions since rendered, the latest case on the point being People v. Blocki, 203 Ill. 363.
The case made by this bill is not as strong as the cases referred to. If the putting down of a railroad track in a public street cannot be restrained by the public, much less could a private individual, by injunction, prevent the erection of freight houses and switch tracks upon the private property of the railroad company. Nor do we conceive that the fact that such tracks and buildings were erected in a neighborhood which had for years been used exclusively for residence purposes could change the legal rights of the parties. Lowe avenue, as shown by the bill, extends north and south and is about sixty feet wide. Appellant’s property is on the west side of it and fronts e;ast on the avenue, between Sixty-fourth and Sixty-fifth streets. The property of the railroad company upon which it is proposed to build the freight houses and switch tracks is on the east side of the avenue, opposite appellant’s property. The street in front of the appellant’s house would not, therefore, be disturbed, except that an elevated driveway would be erected for the purpose of getting on to the elevated tracks, and that driveway would be on the opposite side of the street. It would not interfere with appellant’s property more than any other constant use of the street would. Beyond the fact that yards are to be built in a residence neighborhood there is nothing shown which will cause any greater disturbance than -is ordinarily occasioned around railroad yards. There is nothing in the allegations of the bill to show that the yards contemplated are not necessary for carrying on the proper business of the company or that it would be convenient or practicable for it to locate them in any other place.
We think the allegations of the bill were insufficient to entitle the complainant to the relief prayed. The demurrer was properly sustained, and the decree of the Appellate Court will be affirmed.
D affirm^.