Wilder v. Aurora, DeKalb & Rockford Electric Traction Co.
75 N.E. 194
Ill.
1905
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

“Where the fee of the street is in the city, such damages, as the abutting owner may suffer from the laying of a railroad track in the street, are merely consequential, so far at least as they affect the property abutting on the street. In such case, as there is no physical taking of the land, injunction will not lie to enjoin the taking, the remedy being an action at law for damages.” (Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74; Parker v. Catholic Bishop, 146 id. 158; Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. 156 id. 255; Doane v. Lake Street Elevated Railroad Co. 165 id. 510). The present proceeding is instituted by the appellant, a property owner owning a lot abutting upon Walnut street in the city of Aurora, for the purpose of enjoining the appellee, the Aurora, DeKalb and Rockford Electric Traction Company, from laying down its railway tracks upon Walnut street in front of appellant’s property. The appellant claims, that he is the owner in fee of Walnut street in front of his lot to the center of the street, subject to a right of easement over the same in the city and the public. If this is not true, ánd if the fee of such portion of Walnut street is in the city, and not in appellant, as above stated, then, of course, the present bill for injunction will not lie.

First—The first question, therefore, to be determined, and which is discussed by counsel, is whether or not the appellant is the owner of the fee of the street in front of his lot to the center thereof. The traction company, the appellee herein, contends that the appellant has not shown himself to be the owner of the fee to the center of the street. Appellant’s property is lot 9 in block 19 in Stephen F. Gale’s addition to West Aurora. The plat of the addition was introduced in evidence, and is referred to as an exhibit to the amended and supplemental bill. The certificate, attached to the plat, is dated April 29, 1851, and is made by “John L. Hanchett, deputy surveyor,” who certifies that he has surveyed and laid out into blacks, streets, alleys and lots, the following piece or parcel of land, to-wit: “A part of the north-east quarter of section 21, and north-west quarter of section 22, township 38, north, range 8 east, third principal meridian.” The act of 1845, providing for the acknowledgment of plats, was in force when the plat here in controversy was acknowledged, and that act remained in force until the revision of the statutes of 1874. (Gould v. Howe, 131 Ill. 490). Section 17 of chapter 25 of the revision of 1845 of the statutes of Illinois provides that, whenever any person wishes to lay out a town in this State, or an addition or subdivision of out-lots, he shall cause the same to be surveyed, and a plat or map thereof made by the county surveyor, etc. (Statutes of Ill. of 1845, p. 115).0 Under the Revised Statutes of 1845 the county surveyor’s certificate to the plat of an addition to a town is a requisite part Of such plat when it is acknowledged by the proprietor. “The plat is neither entitled to acknowledgment or record until it has first been certified by the surveyor. His certificate must also be recorded, and form a part of the record. Then, and not until then, does it become evidence of title. * * * The plat or map operates as a conveyance in fee of streets and alleys to the corporation only by force of the statute, and when it requires that it shall be ‘made out, certified, acknowledged and recorded, as required by this division,’ to have the effect of a conveyance, it is not within the province of a court to say it shall become a muniment of title notwithstanding a plain requirement has been ignored.” (Village of Auburn v. Goodwin, 128 Ill. 57). A deputy county surveyor, acting in his own name, and not that of his principal in making a survey and plat of a town addition under the statute of 1845, does not bind the principal, or make his act that of the county surveyor. (Village of Auburn v. Goodwin, supra). It also appears that the other certificate, endorsed upon the plat or map of the addition, certifying that such map or plat, was laid out and subdivided, was not made by the owner, Stephen F. Gale, but was made by one P. A. Hall, agent for Stephen F. Gale. In Thompson v. Maloney, 199 Ill. 276, we held that a plat, executed and acknowledged by an attorney in fact, does not constitute a statutory dedication of the streets to the municipality. Inasmuch, therefore, as the plat of Gale’s addition to West Aurora was certified by a deputy county surveyor, and not by the county surveyor, and inasmuch as the map or plat was not certified to have been laid out by the owner, but merely by an agent of the owner, the plat was not executed in accordance with the provisions of the statute, and cannot be considered a statutory plat. Consequently the fee of the street did not vest in the city of Aurora. The title thereto remained in the owner, Gale, so long as none of the lots were sold, but inasmuch as he sold lots by reference to the plat, title to the soil in front of said lots to the center of the street attached to the lots conveyed.

It follows, therefore, that the dedication of the streets, comprised in the subdivision or addition under consideration, one of which streets was Walnut street, was a mere common law dedication, and not a statutory dedication. If, then, the appellant has connected his title to the lot claimed by him with the title of the original dedicator of this addition, he owns the fee to Walnut street in front of his lot as far as the center of the street. “A conveyance of property abutting upon a street, shown upon a plat not sufficient to constitute a statutory dedication, carries with it the fee of the soil to the. center of the street, although the property is conveyed by lot or block number only, unless the, title to the street is expressly reserved to the grantor or excluded from the grant.” (Brewster v. Cahill, 199 Ill. 309).

We do not understand, however, that counsel for appellee seriously contend that there was anything more here than a common law dedication only of the land embraced within the street, or that the title in fee of the abutting lot owners does not extend to the center of the street, but their claim is that the appellant has not properly connected himself with the title of the original dedicator, or maker of the subdivision or addition. The record shows that, by warranty deed dated June 25, 1887, James C. Hanna, and his wife, of Aurora, in consideration of $2750.00, conveyed and warranted to George Wilder of the same place, the present appellant, lot 9 in block 19, Gale’s addition to West Aurora, Kane county, Illinois, as per plat of the same on record in the recorder’s office of Kane county. The proof further shows that the appellant resided upon the lot in question as his homestead for seventeen years, and paid all taxes for fifteen years from 1888 to 1903 inclusive, upon said lot, such possession and payment of taxes being under the deed of June 25, 1887. Such possession and payment of taxes for more than seven years under the last named deed, as color of title, make him the owner of said lot 9 under the Limitation law in regard to possession and payment of taxes. Whether, however, such title could extend his ownership to the center of the street, it is unnecessary to inquire, and we do not decide. The abstracts of title and deeds, introduced in evidence, show a connected chain of title from the government down to Hanna, the immediate grantor of appellant. No objection is made by counsel for appellee, as we understand their argument, to any part of this chain of title, except one deed, to-wit, a warranty deed, dated January 26, 1853, executed by Stephen F. Gale, the owner of the property when the subdivision was made, to Philip A. Hall. ’The description contained in this deed is as follows: “All the following described piece or parcel of land lying and being in sections No. 21 and 22 in township No. 38 north of range No. 8 east of the third principal meridian, and known as Gale’s addition to West Aurora, reserving and excepting lot No. 8 in block No. 10 and lot No. 12 in block No. 13.”

The first objection made to the last above named deed is, that the description does not state in what State or county the premises conveyed lie. The deed begins as follows: “This indenture, made this 26th day of January, A. D. 1853, between Stephen F. Gale of the city of Chicago, county of Cook and State of Illinois, of the first part, and Philip A. Hall of West Aurora in the county of Kane and State of Illinois of the second part.” In thus describing the residence of the grantee, Philip A. Hall, the deed describes him as being “of West Aurora in the county of Kane and State of .Illinois.” When, therefore, in the description of the property mention is made of “Gale’s addition to West Aurora,” a reference back to the previous part of the deed shows that West Aurora is in Kane county, Illinois. This is sufficient to indicate the county and State, in which the premises lay. It was so held in Guyer v. Warren, 175 Ill. 328, and cases there cited. (See also Garden City Sand Co. v. Miller, 157 Ill. 225; also Billings v. Kankakee Coal Co. 67 id. 489). It is not a correct statement that no evidence was offered, tending to show that the parcel of land claimed to be owned by the appellant was identical with any part of the premises described in the original deed. The deed from Gale to Hall conveys the whole of the addition to West Aurora, except lot 8 in block io and lot 12 in block 13. It, therefore, conveyed lot 9 in block 19 in said addition. The record of the plat was an exhibit to the amended and supplemental bill, and the original plat itself was produced, and appellant testified that he owned and lived and paid taxes on that particular lot of land. This was sufficient evidence to show that the premises, conveyed by the deed, were the same premises as those included in the recorded plat of Gale’s addition to West Aurora.

It is also insisted by the appellee that there were certain erasures in the deed from Gale to Hall, and that, although the admission of the deed was objected to upon this ground, the erasures appearing on the face of the deed were not explained. Two deeds were introduced in evidence, shown upon the abstract of title, and also introduced as separate instruments outside of the abstract of title. The first deed introduced was a quit-claim deed, executed by Gale to Hall, dated January 26, 1853, signed by Gale, and sealed and delivered by him in the presence of one John T. Waite. This deed was,recorded on January 29, 1853. On account of certain defects in the first deed it was re-drawn and re-executed by being signed and acknowledged by Gale before a notary public on September 4, 1863, and recorded on September 3, 1864. The erasures objected to are in the'second deed, acknowledged in 1863, and were merely erasures of such words as made the deed correspond with the original quit-claim deed. The form used in drawing the second deed was the -form of a warranty deed, and such words, as operated to make it a warranty deed, were erased so -as to make it conform with the original deed, which was a quit-claim deed. The comparison of the two deeds was an explanation of the erasures, so as to relieve the deed of- the charge that it contained such erasures or interlineations, as amounted to suspicious circumstances. (Landt v. McCullough, 206 Ill. 214; Catlin Coal Co. v. Lloyd, 180 id. 398; Merritt v. Boyden & Son, 191 id. 136).

The deed from Gale to Hall passed the title to the property in question, and was therefore properly admitted by the court. For the reasons above stated, we are of the opinion that thé appellant showed himself to be the owner in fee of said lot 9, and of the fee of so much of Walnut street, lying in front thereof, as extends to the center of the street. In other words, he has shown himself to be the owner in fee of so much of the half of Walnut street as lies in front of his lot.

Second—A motion was heretofore made by the appellee to dismiss the present appeal for want of jurisdiction in this court, and this motion was by a previous order entered herein reserved to the hearing of the cause, and will now be disposed of. The original bill averred that George Wilder, the appellant, was the owner in fee of said lot 9, and that such ownership extended to the center of Walnut street in front of said premises, subject only to the use of the public as a public highway. The defendants in their answers denied that the complainants in the original bill, or any of them, were the owners of the fee of that part of Walnut street described in the bill, but on the contrary averred that the fee of said street, as described in the bill, was in the city of Aurora. Hence, the issue was directly made as to the ownership in fee of the property by the complainants in the original bill; and, this being so, a freehold is directly involved, and the cause was properly brought to this court. It is said, however, by counsel for the appellee, that such allegation, as contained in the amended and supplemental bill, was admitted to be true' by the demurrer thereto, and that, therefore, there was no issue upon that subject, which authorized the taking of the appeal to this court. The theory of the amended and supplemental bill was, not only that appellant was the owner in fee to the center of the street in front of .his lot, but that the railroad to be constructed upon the street by appellee was a commercial railroad, that is to say, a railroad carrying both passengers and freight; and that, therefore, the construction of it was the imposition of a new or additional servitude in the street, for which the appellant, as the owner of the fee, was entitled to compensation. The bill avers not only that appellant was the owner in fee as above stated, but that no compensation had ever been paid to him for the use of the fee owned by him in said street, and that-he had never consented to the occupation and use of said fee for the purposes of said traction company, and that said trac-' tion company had never attempted to condemn or purchase from him, his rights in the fee in said street; “and that the taking of your orator’s land in said street for said purposes will be in violation of the constitutional rights of your orator.” These, and .other allegations in the amended and supplemental bill amount substantially to the charge that the appellee was seeking to take the property of appellant without making just compensation therefor in violation of the constitution of the State. For these reasons, also, the case has been properly brought to this court, as well upon the issues made by the demurrer to the amended and supplemental bill, as upon the issues made under the answers to the original bill. Accordingly, the motion to dismiss the appeal is overruled.

Third—It is claimed on the part of appellant, that the ordinance of May 27, 1902, was absolutely void, as authorizing certain individuals, rather than a corporation, to construct and maintain and operate a railroad in a public street of the city of Aurora. It cannot be denied that the ordinance of May 27, 1902, was and is absolutely void upon this ground, whether the railroad be regarded as a street railroad, or as a commercial railroad. The act of March 7, 1899, in regard to street railroads provides “that any company, which has been or shall be incorporated under the general laws of this State for the purpose of constructing, maintaining or operating any horse, dummy or street railroad or tramway, may enter upon and appropriate any property necessary for the construction, maintenance and operation of its road,” etc. (Sess. Laws of Ill. 1899, p. 331). The power here granted is to an incorporated company and not to an individual. Paragraph 90 of section 63 of article 5 of the City and Village act provides that “the city council * * * shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam, dummy, electric, cable, horse or other railroad com"pany, whether the same shall be incorporated under any general or special law of the State now ór hereafter in force, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes; and when the street or part thereof sought to be used shall be more than one mile in extent no petition of land owners shall be valid, unless the same shall be signed by the owners of the land representing more than one-half of the frontage of each mile, and of the fraction of a mile, if any, in excess of the whole mile measuring from the initial point, named in such petition, of such street or- of the part thereof sought to be used for such railroad purposes.” (1 Starr & Curt. Ann. Stat.—2d ed.—p. 712). Paragraph 90, it will thus be observed, provides for a grant to an incorporated company, and not to an individual or individuals.

In Goddard v. Chicago and Northwestern Railway Co. 202 Ill. 362, a construction was given to the act of March 7, 1899, in reference to this question, and it was there held that the act by its terms only authorized the grant of street railroad privileges to companies, incorporated under the general laws of Illinois, and not to individuals or partnerships, and that the act should not be extended by construction to apply to individuals, since that would give to individuals the sovereign power of eminent domain, and could not be adopted, unless both the letter and the spirit of the act clearly so required. In that case it was said (p. 368): “The question is not whether a natural person, if the law so provided, might acquire a right of way, exercise the right of eminent domain, and enjoy the franchise to operaté a street railway, but whether the law does so provide, and, if it is clear that it does not, the complainants acquired no right by the action of the county board. The legislature had power to limit the authority of the county board to grant a license to incorporated companies, created under the general laws of the State for the purpose of constructing and operating street railways, and it is not material what reason existed for prescribing the limit. It was a case for the exercise of the legislative judgment, with which we are not concerned. * * * The right to operate a street railway and collect fares for carrying passengers, and the power to exercise the right of eminent domain, are franchises. No private person can establish, a toll bridge, public ferry, or railroad, or enjoy the franchise connected therewith, without authority from the legislature, either directly granted or by the exercise of legislative power through delegation to a municipality. (2 Smith’s Law of Mun. Corp. sec. 1702). A franchise is a special privilege, conferred by grant from the sovereign power, not belonging to the citizen of common right. It must be derived from the laws of the State and emanate from the sovereign power, and it cannot be exercised by an individual on his own lands without the consent of the State.” The same reasoning applies to paragraph 90 as above quoted. The grant there contemplated can only be to a company, and not to an individual. (McGann v. People, 194 Ill. 526; Chicago Dock Co. v. Garrity, 115 id. 155).

In line with the Illinois authorities is the case of Allen v. Clausen, 114 Wis. 244, where it is said: “Appellant’s counsel needlessly argue at length for the natural right of individuals to receive such a franchise. That is not questioned, but only whether the legislature has empowered a municipality to grant it to them. As there is no pretense that defendants or any of them are within such class of individuals to whom franchise is so authorized to be granted, we may, for the purposes of this case, consider the statute as if it in terms only authorized grants to street railway corporations, except, indeed, as the express mention of certain individuals the more clearly negatives grant to any others. That an authorization to grant such franchises only to corporations excludes any power to confer one on individuals, and renders void any attempt so to do, has been often decided by other courts.”

In the case at bar, the ordinance of May 27, 1902, granted the right to lay down, maintain and operate a railway on Walnut street in front of the appellant’s property to V. A. Watkins, and William George, of Aurora, and R. S. Vivian and William P. Kopf of Chicago. The grant was to four individuals, and not to any incorporated company, and hence, under the authorities already cited, the grant was absolutely void.

After the original bill ‘in this case was filed on October 11, 1904, and on November 7,1904, a new ordinance was passed, amending the ordinance passed on May 27, 1902, and, by the terms of the latter ordinance, the authority to construct and operate the road was conferred upon the appellee, the Aurora, DeKalb and Rockford Electric Traction Company, its successors and assigns. Subsequently, on December 17, 1904, the amended and supplemental bill herein was filed, which refers to the passage of the latter ordinance, and makes it an exhibit to said bill. It is claimed by the appellant that the ordinance of November 7, 1904, is merely amendatory of the ordinance of May 27, 1902, and that a void ordinance cannot be amended. And such is the law. (McQuillin on Mun. Ordinances, sec. 196; People v. Onahan, 170 Ill. 449; Tedrick v. Wells, 152 id. 214; Schwartz v. City of Oshkosh, 55 Wis. 490). On the other hand, it is claimed by the appellee that the ordinance of November 7, 1904, is an original and independent ordinance conferring an original and independent privilege upon the appellee, and is not in any sense dependent for its validity upon the ordinance of May 27, 1902. This court has held that an' act, which possesses .all the attributes of a complete statute in itself, is not invalid because passed as an amendment to an act which had become inoperative. (People v. Onahan, supra; School Directors v. School Directors, 73 Ill. 249; Timm v. Harrison, 109 id. 593). We are inclined to the opinion that the ordinance of November 7, 1904, may be regarded as an independent ordinance, and as possessing all of the attributes of a complete statute in itself. Its title contains the following words: “Granting the Aurora, DeKalb and Rockford Electric Traction Company, its successors, lessees and assigns, consent and the right to use, locate, lay down, construct, maintain and operate its railway as hereinafter provided, in, upon and along sundry streets and avenues in the city of Aurora, Illinois; also in said streets, the right to erect, use and maintain poles and overhead wires, and to build, construct and maintain underground conduits and tubes, with all necessary appurten'ances, for the purpose of propelling its cars thereon by electricity or any other motive power, except steam.” The body of the act confers upon the Aurora, DeKalb and Rockford Electric Traction Company the same rights as were conferred upon the four individuals, named in the ordinance of May 27, 1902.

Fourth—But it is insisted by the appellant that the ordinance of November 7, 1904, was ineffectual in any event, because is was enacted without any petition from consenting property owners. There was a petition to the mayor and aldermen of the city of Aurora by the owners of land abutting and having a frontage on Walnut street, etc., asking for a grant to Watkins, George, Vivian and Kopf, their representatives and assigns, of the right to use the street for the purpose of constructing, maintaining and operating thereon a railroad, etc. This petition was for a grant to the four individuals, and not to the appellee corporation. The property owners, signing the consent, consented to an ordinance conferring the power to construct and operate the road upon certain individuals, but there is nothing to show that they ever consented to the grant of power to the appellee company to construct and operate the road. Counsel for appellee say that the consent or petition was to the effect that the grant should be made to the four individuals named, “their representatives and assigns.” A written assignment is then produced, and is attached as an exhibit to the amended and supplemental bill, wherein Watkins, George, Vivian and Kopf assign, set over and transfer to the appellee corporation “all the title, interest, privileges and immunities granted to us, either jointly or severally, by a certain franchise hereinafter described, it being the purpose of this instrument to convey and assign to said traction company all rights by us owned or claimed, either jointly or severally, in and to said franchise or permit, to-wit: that certain franchise heretofore granted to the undersigned, their heirs, executors, administrators and assigns, by the city council of the city of Aurora, * * * known and entitled, ‘Ordinance granting to W. A. Watkins, William George, R. S. Vivian and William P. Kopf, their heirs, executors, administrators or assigns, consent and right to use, locate, lay down, construct, maintain and operate a railway in certain streets and avenues in the city of Aurora, Illinois,’ which said ordinance was passed May 27, 1902,” etc. This is not an assignment of the con-' sent of abutting property owners. It is an assignment of the rights and privileges and franchises granted by the ordinance of May 27, 1902. As that ordinance was absolutely void, because of the grant to individuals instead of a company, there could be no valid assignment of it.

Independently, however, óf this consideration, the ordinance of May 27, 1902, being invalid in attempting to confer rights on the four individuals, could not be valid because it authorized such individuals to assign the franchise or privileges conferred upon them. This would amount to a delegation of power by the city council to the four individuals to license a railroad company to construct and operate a railroad in a street of the city. An ordinance, attempting to so delegate power, is void. Legislative powers conferred upon municipalities cannot be delegated. In City of Chicago v. Trotter, 136 Ill. 430, we said (p. 433) : “The powers that were granted by the State, and that are relied upon by the municipality, were delegated to the city council, and that body could not transfer its legislative prerogatives, and the public trust which was imposed upon it, to a mere executive officer.” (See also People v. Village of Crotty, 93 Ill. 180). In City of East St. Louis v. Wehrung, 50 Ill. 28, it was held that where the power is conferred upon municipal corporations to regulate any calling" or business, it is so done with the intention that such power shall be exercised by the corporations, and in the mode prescribed; and that they are not warranted in delegating a discretionary authority to others, or to an individual. In Hickey v. Chicago and Western Indiana Railroad Co. 6 Ill. App. 172, where the general railroad law conferred upon a railroad company authority to construct a railroad upon a street in a city with the assent of the corporation, it was held that, as the act contained no provision as to how such consent might be obtained, the action of the city council must be governed by the provisions of the general statute, relating to the incorporation of cities and villages; and it was also there held that cities have full power to regulate the location and use of railroad tracks within their corporate limits, but that this is a public power or trust, and can be exercised by the corporation when and in such manner as it shall judge best, but that such power cannot be delegated to others. It may be here observed that, in the case at bar, the act of March 7, 1899, in regard to street railroads, if it has any application here at all, provides that no such company shall have the right to locate or construct its road along any street in any incorporated city “without the consent of the corporate authorities of such city,” but it is not specified how such consent may be obtained, and, therefore, the action of the council must be governed by the provisions of the general statute, relating to the incorporation of cities and villages, which includes paragraph 90 of section 63 of article 5 as above quoted. It follows from what is said that the appellee corporation could have obtained no authority to construct and operate its railroad along Walnut street in front of appellant’s property by virtue of the power to assign, given by the ordinance of May 27, 1902, to the four individuals there named, and by virtue of the assignment executed by such individuals to the appellee. The consent or petition, signed by the property owners and appearing in the record, could only apply to the action of the city council in passing the ordinance of May 27, 1902. It could not be used as a basis for the action of the city council in passing the ordinance of November 7, 1904. In order to invest the common council of Aurora with power to pass the latter ordinance, there should have been a new petition by the requisite number of property owners. This precise point has been recently decided by this court. In Vennum v. Village of Milford, 202 Ill. 423, it was held that, where an ordinance, based upon a petition of property owners, was invalid, and the confirmation proceeding was dismissed, the same petition could not be used by the improvement board as a basis for recommending another ordinance. The same principle announced in Vennum v. Village of Milford, supra, applies here.

It is true that the title of the ordinance of November 7, 1904, contains these words: “This ordinance having been duly petitioned for by the owners of land representing more than one-half of the frontage of each and every mile and fraction of a mile in excess thereof, or so much thereof as is sought to be used by said traction company, of all that portion of the streets hereinafter described.” The ordinance of November 7, 1904, including its title, or the description of what the ordinance is, is an exhibit to the amended and supplemental bill, and is, therefore, to be regarded as a part of the bill. In Cummings v. West Chicago Park Comrs. 181 Ill. 136, it was held that a recital in an ordinance providing for an improvement, that the petition of the owsners of a majority of the land fronting on the improvement was presented to the municipal authorities, is sufficient prima facie evidence of the existence of such jurisdictional fact. (See also McGann v. People, 194 Ill. 526). If a recital in the title to the act can be regarded the same as a recital in the body of the act, then the recital above quoted from the title of the ordinance of November 7, 1904, might be regarded as prima facie evidence that the latter ordinance was duly petitioned for by the owners of land, etc., under the issue made by the demurrer to the amended and supplemental bill. But the amended and supplemental bill contains the allegation “that there is on file in the city clerk’s office of said city of Aurora a petition from abutting owners of land on said Walnut street, filed prior to the enactment of the first purported license herein mentioned to said four natural persons, a copy of which petition is hereto attached and marked ‘Exhibit 3’ and made a part of this amended and supplemental bill, and no other or different petition of abutters on said Walnut street has been filed with said city council authorizing or attempting to authorize in any way the enactment of the last amendment of November 7, 1904.” The demurrer to the amended and supplemental bill admits the allegation in question to be true, and it stands the same as though it were established by proof. Inasmuch as the recital in the title of the act as above quoted can only be regarded as prima facie evidence that the ordinance of November 7, 1904, was duly petitioned for, such prima facie case thereby made is overcome by the allegation that no other or different petition of abutters on Walnut street was filed with the city council, authorizing the enactment of the ordinance of November 7, 1904, except the petition or consent already referred to, which preceded the ordinance of May 27, 1902, and upon which the latter was based. The allegation, that no other or different petition of abutters was filed than the one already referred to, is not the statement of a mere conclusion, but is the statement of a fact. Counsel refer to the case of Schuchert v. Wabash, Chester and Western Railroad Co. 10 Ill. App. 397, as sustaining the contention that the allegation is merely that of a conclusion, but in the case in question the bill averred “that there was no such petition as the statute requires.” This was the statement of the conclusion of the pleader that the petition did not conform to the requirement of the statute. But, in the case at bar, the allegation is of the fact that no other petition was filed with the common council than that set forth as preceding the ordinance of May 27, 1902. It is said that the statute does not require that the petition should be filed with the common council, but merely that the council shall have no power to make the grant in question “except upon the petition of the owners,” etc. It is said that'the petition might be presented to the common council in some other form than by filing it, and that it need only be exhibited or otherwise brought to the knowledge of the council. The bill alleges, however, and the demurrer admits it to be true, that the petition of abutting property owners, upon which the ordinance of May 27, 1902, was based was filed in the city clerk’s office, and this being so, the presumption is that, if there had been another petition as a basis for the ordinance of November 7, 1904, it also would have been filed in the city clerk’s office. The bill expressly alleges that it was not so filed, and the proper way of bringing such a document to the attention of the common council would be by filing it.

Moreover, the ordinance, which the property owners petitioned for, not only granted the right to construct and operate the road in Walnut street to the four individuals named, but it provided, in section 2, that the grant therein should extend for the term of forty years from the passage of the ordinance of May 27, 1902; but the subsequent ordinance of November 7, 1904, in addition to granting the authority referred to to the traction company, provided in section 2 that the grant therein should extend for the term of thirty-eight years from the passage thereof. Non constat that the property owners, who petitioned for a grant to individuals for forty years, would have been satisfied with a grant to a corporation for thirty-eight years.

“Without the statutory consents the street railroad company has no right to commence the construction of its road in the street as to which the consents are withheld; and any abutting property owner in that street, owning to the center thereof, can maintain an equitable action to restrain such construction, and need not prove special damage.” (Nellis on Street Surface Railroads, sec. 10).

“Where the abutting owner has title to the fee in the street or where payment of compensation is by statute made a condition precedent, he may enjoin the construction of the road until compensation has been paid or tendered.'” (27 Am. & Eng. Ency. of Law,—2d ed.—p. 184, and cases in note).

Fifth—It has been held that a street railway is not an additional servitude, even where the fee of the street is in the abutting owner. But it is otherwise where a steam railroad, or what is called or known as a commercial railroad, is constructed in a public street. The latter is regarded as an additional servitude. It has been said that, where the public have “only an easement in streets, and the fee is retained by the adjacent owner, the legislature cannot, under the constitutional guaranty of private property, authorize an ordinary steam railroad to be constructed thereon, against the will of the adjoining owner, without compensation to him. In other words, such a railway, as usually constructed and operated, is an additional servitude.” (Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. 156 Ill. 255). The term, “steam railroad,” is used because the ordinary commercial railroad company, which carries both passengers and freight, is generally propelled by steam. But, in the present case, it is contended by counsel for appellee that the character of the motive power is not controlling in determining the question of whether the railroad to be constructed is a street railway or not, or whether its construction is or is not an additional servitude. Counsel for appellant say, “We assume this position to be in accord with the decisions of courts generally, and it follows from this that the fact that steam is not used as a motive power on this road is not of controlling importance.”

The next question that arises, therefore, is as to the character of the road to be constructed by appellee. If the road so to be constructed be regarded as merely a street railroad, it cannot be regarded as an additional servitude, and the appellant is not entitled to an injunction against its construction even though he is the owner of the abutting property and of the fee of the street in front thereof to the center of the same. Counsel for the appellee thus state the question succinctly in their brief: “The main question in this case is whether the railroad, which the appellee company proposes to construct, will be a commercial railroad, or a street railway.” If it is a commercial railroad, appellant is entitled to compensation before it can be built over that part of the street opposite his lot, which he owns in fee subject to the easement of the public.

It is to be noted that the railroad to be constructed by appellee is nowhere spoken of in its articles of incorporation, or in either of the ordinances granting power to construct it, as a street railroad. A comparison of the provisions of its articles of incorporation with the requirements of the general Railroad act will show that it conforms exactly to the latter act. Indeed it is conceded that the appellee is a corporation, organized under the general Railroad law of the State, and not under the Street Railroad act. Lewis in his work on Eminent Domain (vol. I, sec. 110a) says: “Railroads now exist in great variety as regards motors and motive power, the size and style of cars and coaches, and methods of. operation and construction. It is probable that these variations will be multiplied in the coming years. It is doubtful whether any permanent and satisfactory classification can now be made. There has been a general concurrence, however, in embracing all railroads in two divisions or classes: (1) commercial railroads, and (2) street railroads.' Commercial railroads embrace all railroads for general freight and passenger traffic between one town and another or between one place and another. So far they have not been successfully operated, to any" extent at least, except by steam. They are usually not constructed upon the public streets or highways "except for short distances. Street railroads embrace all such as are constructed and operated in the public streets for the purpose of conveying passengers with their ordinary hand luggage from one point to another on the street.”

In Diebold v. Kentucky Traction Co. (Ky.) 77 S. W. Rep. 674, it was said: “It certainly can make no difference whether the cars of a railroad company are propelled by the agency of steam, or of gasoline, or of electricity, compressed air, liquefied air, or any other agency which science and the inventive genius of man may in the future bring into use. Rather the character of a railroad company is determined by the nature and extent and limits put upon its operation by law or otherwise and by the character and object of its corporate creation, as shown by its charter.” By the terms of its charter, the appellee here is to run, not in one city alone, but from the city of Aurora in Kane county, north-westerly through Kane, DeKalb, Ogle and Winnebago counties to the city of Rockford in the latter county, together with branches or auxiliary lines of road necessary or convenient to its operation. The appellee road is evidently not to be constructed for the purpose of conveying passengers with their ordináry hand luggage from one point to another on the street, but is to convey them, as commercial railroads do, from one place to another and from one county to another. The charter of appellee provides that it shall continue for a period of fifty years. The general Railroad law provides that no corporation shall be formed to continue more than fifty years in the first instance, (3 Starr & Curt. Stat.—2d ed.—p. 3226), while the act of March 7, 1899, in regard to street railroads, provides that the consent of the corporate authorities of a city to construct a street railroad along any street in the city may be granted “for any period not longer than twenty years.” As the corporate existence of the appellee is to continue for some thirty-eight or forty years, it is certainly not a street railroad, so far as the extent of its life as a corporation is concerned. In Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295, wé said (p. 307): “There is a wide and well understood difference between a railroad organized for general traffic, and a street, horse or dummy railroad. * * * A street railroad, as is well understood, is a road constructed on a street or highway for the purpose of conveying passengers, living upon or having business on such street or highway, .its main object being to accommodate street travel.” In Hartshorn v. Illinois Valley Traction Co. 210 Ill. 609, we said that street railways are railways on or upon streets of a city or town, and that a street railway may not, like a steam railway, locate its route in order to reduce time and distance for passengers traveling from town to town across the country, and that, as such location of its route is not for the accommodation of local travel on highways or streets, it therefore “involves a perversion of the character and'objects of street railways.” A railway, authorized to carry freight as well as passengers, becomes a commercial railroad, instead of a street railroad, and such railroad, when laid in a street, becomes an additional burden on the fee, and cannot be laid without the consent of, or compensation made to, the adjoining property owners. (Linden Land Co. v. Milwaukee Railway Co. 107 Wis. 511).

In Schaff v. Cleveland M. & S. Ry. Co. 66 Ohio St. 229, it is said by the court: “Besides, this company is authorized not only to carry passengers, but also to transfer over the - road, ‘baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail;’ and although it is required to run cars over its road at least three times each way daily it is not limited as to the number of cars, or trains, for freight or passengers, or both combined, or the size or make-up of the trains. All things considered, it is reasonably certain from the facts found that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiff’s property in the same sense. * * * But the appropriation for this purpose cannot be constitutionally made without making compensation to the public for the injury thereby occasioned to its easement in the highway; and also making compensation to the owner of private property taken for the use indicated.”

In the case at bar, the ordinance of November 7, 1904, as well as the previous ordinance of May 27, 1902, contains the following provision: “The said tracks and railways shall be used for no other purpose than to transport passengers and their ordinary baggage, United States mail, express, milk; and the cars and carriages for that purpose shall be of the style and class ordinarily used on such railways in other cities. No freight shall be carried by said grantee, its successors or assigns, excepting such as is used in the construction of their road within the limits of the city of Aurora.” Thus, the road to be constructed by appellee is authorized to carry not only passengers and their ordinary baggage, and United States mail and express matter, but also milk. It cannot be said that a railway, which is authorized to carry one kind of freight, is not a commercial road within the meaning of the definitions above quoted. The fact, that a road is limited to the carriage of one kind of freight, does not make it any the less a commercial railroad, which is defined to be one, which carries both freight and passengers. Again, the ordinance authorizes the appellee corporation to do -such excavating and grading as it may deem necessary for the proper laying of its tracks, thereby failing to confine the laying of its tracks to the surface of the street. It is also authorized by the ordinance to connect its tracks with the tracks of any railway company, owning or operating tracks in the city of Aurora for the purpose of forming the loop referred to in the ordinance. The ordinance also provides that the authority, granted to appellee, is to be used for the public purposes of a railway connecting with the interurban tracks, when laid, of the Aurora, DeKalb and Rockford Electric Traction Company.

In our Opinion the railroad to be constructed under appellee’s charter, and under the ordinances authorizing it to lay its tracks in the streets of Aurora, is what is called a commercial railroad, and is not a street railroad within the definite and fixed meaning of the latter term. Being a commercial railroad, it constitutes a new and additional servitude upon the fee of the property owner to the center of the street. Therefore, inasmuch as appellant, the owner of lot 9 abutting on Walnut street, is an owner of the fee of the street in front of his lot to the center thereof, and inasmuch as the appellee is about to construct a new and additional servitude in the street upon his property without having paid him any compensation or instituted any condemnation proceeding, he was entitled to an injunction in accordance with the prayer of his bill.

For the foregoing .reasons, the decree of the circuit court was erroneous, and the same is hereby reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.