the respondent had the discretionary right to change the location of its depot notwithstanding the mere fact that it had previously located the North street depot and maintained it, stopping its trains there for a long period of years. In other words, was it estopped in January, 1904, to abandon that station and establish another. There is no evidence in the record to justify the conclusion that the respondent was actuated by any sinister or fraudulent motive in making the contemplated change, nor do we understand that the relator claims that it was threatening to act arbitrarily for the purpose of oppressing or injuring the public. Conceding, then, as we understand counsel to admit, that the railroad company has in the first instance the discretionary power, fairly and honestly exercised, to locate all its passenger and freight depots, does the second proposition above lay down the proper limitation upon that power when an attempt is made to relocate its stations? It will be observed that that proposition limits the right to relocate, unless another location is established of equal safety, equal accessibility, and equal convenience to the public as the one abandoned. In other words, it holds, as a matter of law, that the respondent has no right, in any event, to change its passenger station for regular local trains to Collett street, unless the latter station was equal as to safety, accessibility, and convenience with North street. As a statement of a rule of law applicable to the case the announcement is clearly erroneous. If it had been in the form of an instruction to a jury, it would have been misleading, and reversible error. As we understand the law announced by this and many other courts, if, in the contemplated change of depots, the respondent was acting in good faith, it had the right, as against the public, uncontrolled by contracts or previous acts on its part, to change the location, provided it furnished reasonably safe, accessible, and convenient depot accommodations for the public, having also regard for the interests of its stockholders.

In Mobile & Ohio Railroad Co. v. People, supra, it was said (page 570 of 132 Ill., page 646 of 24 N. E. [22 Am. St. Rep. 556]): "Railway stations for the receipt and discharge of passengers and freight are for the profit and convenience of both the company and the public. Their location at points most desirable for the convenience of travel and business is alike indispensable to the efficient operation of the road and the enjoyment of it as a highway by the public. Necessarily, therefore, the company cannot be compelled, on the one hand, to locate stations at points where the cost of maintaining them will exceed the profits resulting therefrom to the company, nor allowed, on the other hand, to locate them so far apart as to practically deny to communities on the line of the road reasonable access to its use. The duty to maintain or continue sta

A

tions must, manifestly, rest upon the same principle, and a company cannot therefore be compelled to maintain or continue a station at a point when the welfare of the company and the community in general requires that it should be changed to some other point; and so we have held that a railway company cannot bind itself, by contract with individuals, to locate and maintain stations at particular points or to not locate and maintain them at other points"citing authorities. After quoting at some length from Marsh v. Fairbury, Pontiac & Northwestern Railway Co., 64 Ill. 414, 16 Am. Rep. 564, St. Louis, Jacksonville & Chicago Railroad Co. v. Mathers, 71 Ill. 592, 22 Am. Rep. 122, and People v. Chicago & Alton Railroad Co., supra, the opinion concludes: cludes: "In People ex rel. v. Louisville & Nashville Railroad Co., 120 Ill. 48, 10 N. E. 657, and People v. Chicago & Alton Railroad Co., supra, the facts were settled by the pleadings and left no question but that the public welfare required stations to be maintained at the points where we held they should be maintained, and there is therefore nothing in either of those cases that militates against our conclusion here." The conclusion reached was that no sufficient grounds were shown in that case for the granting of the writ of mandamus. Reliance seems to be placed by counsel for the relator upon the case of People v. Louisville & Nashville Railroad Co., 120 Ill. 48, 10 N. E. 657. But that case was distinguished from the case then before the court and the one at bar in Mobile & Ohio Railroad Co. v. People, supra, as follows: "The power of election in the location of the line of the railway referred to in People v. Louisville & Nashville Railroad Co., 120 Ill. 48, 10 N. E. 657, results from the franchise granted by the charter to exercise the right of eminent domain, and is therefore totally different from the power of locating stations, which from its very nature is a continuing

In fact, the real point in controversy here seems to be whether the power of a railroad company to locate and establish its passenger and freight stations is exhausted when it has once been exercised, or whether the power is, as here said, a continuing one. That the latter proposition must be true seems too clear to require either argument or the citation of authorities. The case of Chicago & Alton Railroad Co. v. Suffern, 129 Ill. 274, 21 N. E. 824, cited by counsel for appellee as authority for the proposition that when a depot has once been established it cannot be changed, will, on examination, be found to have no points of similarity with the case under consideration. The mandamus in that case was allowed to compel the company to perform a duty imposed upon it by the Constitution, and prevent it from changing the location of its switch track leading to the relators' coal mine, opened

in reliance upon the maintenance of said switch and operated for a considerable length of time.

The change in situation, circumstances, and surroundings of innumerable kinds will readily suggest that there must be power somewhere to change the location of such stations, and, as has been said by the courts, the common interests of the railroad company and of the community at large properly place that power in the railroad company, to be exercised reasonably and from proper motives. The facts of this case will furnish an apt illustration of the reasonableness of the continuing power to change the location of railroad stations. Twenty-seven years ago, if that was the time the North street depot was located, the evidence all shows that the city of Danville had a population of perhaps 5,000 inhabitants. It had no street car accommodations and no interurban lines. Passengers could only reach the railroad stations by walking, or by bus line travel. In 1904 the population had increased to perhaps 30,000 inhabitants and was still a growing city, having a system of electric street car lines connecting the business part of the city with the public parks and railroad stations. One line extended from the public square to the Collett street station, upon which cars were run daily at intervals of not more than 12 or 15 minutes; the fare being five cents each way. It had also several interurban lines, the number of which, perhaps, have been since increased, connecting Danville with other towns and cities in the county and adjoining counties. The "Junction," as it is called in the record, at which the Collett street depot is located, is the center of railroad communications to and from the city of Danville; that is to say, the Wabash, and two divisions of the Big Four, together with those of the respondent company, all center at that point, and, as we understand the evidence, in 1904, when the change was made by respondent, trains of all these companies stopped at the junction. There would seem, therefore, to be many reasons for changing the location of the North street depot unless the company can be compelled to maintain two passenger depots within the corporate limits of the city of Danville within less than one mile of each other. Certainly these changed conditions would tend to justify the relocation of the respondent's depots-at least it cannot be said that reasonable minds might not differ as to the propriety of the contemplated change. Nor do we think it can be seriously contended that the evidence in this record fails to show that the establishment of a regular stopping place for the passenger trains of the respondent at Collett street will not afford reasonably safe, accessible, and convenient conditions for the public. There might be a wide difference of opinion as to the equality of the stations

and their safety, accessibility and convenience, and we think the trial court was in error in holding that the change could only be made, "in any event," unless the conditions were equal. Reasonableness, and not equality, is the proper test. Of course, if it could be seen that the conclusion reached by the court was the only one properly deducible from the evidence, or that the decision, under all the facts and circumstances of the case, was correct, then the mere fact that an erroneous proposition was held would not reverse the judgment below; but, as we have already indicated, we think the decision below must have been influenced by considerations embodied in the erroneous

proposition.

Aside from this question of law, we are constrained to hold that the evidence, taken as a whole, is insufficient to authorize the granting of a writ of mandamus as prayed in the petition of the relator. One of the first rules applicable to the granting of the extraordinary writ of mandamus is that it will issue only in a clear case, and that, if the right sought to be enforced is doubt. ful or not clearly proved, it will not be granted. It was said, in Mobile & Ohio Railroad Co. v. People, supra: "The rule has been so often announced by this court that it is unnecessary to cite the cases, that a mandamus will never be awarded unless the right to have the thing done which is sought is clearly established. If the right is doubtful, the writ will be refused. The burden was on the relator to prove a case authorizing the issuing of the writ, and in our opinion that proof has not been made." And so in this case, we think, upon a careful consideration of all the facts and circum. stances proved upon a trial, the right to have the respondent stop all or any of its trains at the North street depot has not been proved. If the railroad company is willing to furnish a substitute for that depot within the limits of the city of Danville and stop its trains there, which, in view of street car service and other facilities for reaching it, will reasonably furnish the public with safe and convenient accommodations, it will have the lawful right to do so, and in the absence of legislative control that right cannot be interfered with by the courts. Whether or not it would be wise for the Legislature to vest the power in the railroad and warehouse commissioners, or other suitable public body, to decide whether or not a railroad station once established might be changed, as seems to be provided in some of the states, need not now be considered for the purpose of this decision. It is sufficient that no such legislation is to be found in our statute. Subject to the limitation that all railroad corporations shall cause their passenger trains to stop at all stations advertised by them as places for receiving and discharging passengers, and that "all regu

lar passenger trains shall stop a sufficient length of time at the railroad station of county seats to receive and let off passengers with safety," the management of such matters is left with the railroad companies themselves, together with discretion to locate and relocate their stations.

Our conclusion is that the judgment of the circuit court must be reversed. The cause will be remanded to that court with directions to dismiss the petition at the costs of the relator.

Reversed and remanded.

(222 I11. 427)

CHICAGO, R. I. & P. RY. CO. et al. v. PEOPLE ex rel. DAILEY, State's Atty., et al.

(Supreme Court of Illinois. Oct. 23, 1906.)

1. APPEAL QUESTIONS REVIEWABLE-IMMATERIAL QUESTIONS.

Where, in proceedings by the people on the relation of the state's attorney of a county and private individuals, the court found that the state's attorney was the actual party to the suit, the question whether the private individuals could alone maintain the suit would not be determined.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3331, 3341.] 2. SAME OBJECTIONS IN TRIAL COURT GROUNDS OF DEFENSE-FINDING-FAILURE TO OBJECT.

In a suit by the people to declare void an ordinance of a city granting to a railway company the right to maintain tracks and to erect a public building on public ground, the company answered that the ground was a street, and made no objection to a finding by the master that the ground was a part of a street. Held that, if the company desired to make the defense that the ground was not a part of a public street, it should have excepted to the finding and asked leave to amend its answer, and, not having done so, it is precluded from insisting that the ground is not a part of a street.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1079, 1087.] 3. MUNICIPAL CORPORATIONS STREETS BOUNDARIES.

Where a street is bounded on one side by a river, it extends to the center of the river though the plat gives the width thereof.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 14241426.]

4. SAME-GRANT OF RIGHTS TO USE STREETS. The authorities of a city cannot grant any easements in the public streets, and the entire street must be maintained for public use, and no individual or corporation is entitled to a grant for an exclusive private use.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1461.] 5. SAME-BOUNDARIES.

Where a street as originally laid out was bounded by a river, the mere fact that a portion of the street at the water's edge had been called a public landing did not necessarily preclude it from being held as a part of the street. [Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 14241426.]

6. SAME-PUBLIC LANDING-REGULATION.

A public landing is for the benefit of the public generally, and the right to use it does

not include the right to make such use of it as will deprive others of a like use.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1529, 1532, 1533.]

7. SAME-GRANTS OF RIGHT TO USE.

An ordinance of a city granting to a railway company the right to construct and maintain tracks, spurs, sidings, and switches on a public landing, and to erect and maintain thereon a permanent building, with sheds and platforms and tracks, as the company may deem necessary, is void, because such use of the landing interferes with the rights of the public therein.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1529, 1532, 1533.]

8. SAME STREETS-GRANTS OF RIGHT TO USE -VALIDITY.

An ordinance of a city granting to a railway company the right to construct and maintain tracks, spurs, sidings, and switches on a public street, and to erect and maintain thereon a permanent building, with sheds and platforms and tracks, as the company may deem necessary, is void, as interfering with the rights of the public therein.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1466, 1467.]

Appeal from Appellate Court, Second District.

Proceedings by the people, on the relation of John Dailey, state's attorney, and others, against the Chicago, Rock Island & Pacific Railway Company and another. From a decree of the Appellate Court, affirming the decree of the trial court rendered in favor of the relators, defendants appeal. Affirmed.

This cause was brought to this court by appeal from the Appellate Court for the Second district to reverse the judgment of that court affirming the decree of the lower court. The statement of the Appellate Court, which we adopt, fairly sets out the facts, and is substantially as follows:

"This is an appeal from a decree of the circuit court of Peoria county declaring void a certain ordinance passed by the city council of the city of Peoria in November, 1898, and enjoining appellants from exercising any rights or privileges under it. The ordinance gave permission to the Chicago, Rock Island & Pacific Railway Company and the Rock Island & Peoria Railway Company, their successors and assigns, for a period not to exceed 50 years, in consideration of the annual payment of $500, 'to rearrange and reconstruct their existing tracks, and to construct additional tracks, spurs, sidings, and switches in and upon Water street and the public grounds lying between Water street and the Illinois river and between Fayette street produced on the east and the land owned by said companies at the foot of Fulton street produced on the west,' according to plans shown by a plat attached to the ordinance. The ordinance also authorized said companies 'to construct and maintain upon said public grounds, and use for the purpose of a passenger depot, a permanent stone and brick

building, with such necessary and convenient sheds, platforms, and tracks in connection therewith, as the said companies, their successors and assigns, shall deem necessary.' The ground referred to lies between the front of blocks 1, 2, 3, and 4, in the city of Peoria, and the Illinois river. It is of irregular width, varying from 200 to 250 feet, and is 1,200 feet long. Said blocks front on Water .street, which is a public street and extends in a northeasterly and southwesterly direction along, and parallel to, the river front. For many years prior to the passage of the ordinance 110 feet of the space between the river front and the blocks mentioned, and next to said blocks, had been used and traveled as a street. The remainder of the space was, it appears, not used for travel along Water street, but was used as a boat landing or levee, and, as alleged, as a kind of storage or 'dumping ground.' Several years before the passage of the ordinance in question, by permission of the city, certain railroad tracks were laid in Water street by the appellants upon and along the southerly side of the 110 feet used for street travel but these tracks are not involved in this litigation. The bill is filed in the name of the people, by the state's attorney, and a number of individuals, some of whom are owners of property fronting on Water street and some of whom are engaged in river traffic as common carriers, join as complainants, and allege that their property and business are injured and damaged by the use and occupation of the land in dispute by appellants. It does not directly aver that all the territory within the limits mentioned is Water street. The averments are that it was held and used and recognized by the city of Peoria 'as a public street and public boat landing, public harbor and public wharf or public levee.' The appellants by their answer admit 'that all of said ground lying between the present northerly line of Water street, as indicated by the curbing and the river, was, and is, a part of Water street'; 'deny that there was any limit to the width of Water street except such as was contained between what is at the present time the northwesterly line of Water street and the river, but its depth was limited between the boundaries aforesaid'; and 'deny that any of the land ever was held by the county commissioners or the county of Peoria or the city of Peoria as and for a boat landing, and that such land was, is, and ever has been, a part of Water street as originally laid out and platted.' The answer further denies that the portion of Water street next to the river has been used exclusively as a boat landing, and denies that there ever has been any limitation to the width of Water street as cared for by the city of Peoria, or that there ever has been any recognition of the rights of the river front as a landing place or levee, except by sufferance, or that any use thereof has in any manner changed or

tended to change the character of the ground, or make it anything but a street owned by the city of Peoria, and under the control of the city authorities of the city of Peoria to the same extent as any and all other streets of said city.

"After replication filed, the cause was referred to the master in chancery to take the testimony and report his conclusions of both law and fact. The master found and reported that the appellants had taken possession of the strip of ground described in the ordinance, had rearranged and reconstructed their tracks, built new tracks, sidings, and switches, 'and are now using said ground as a railroad yard, for switching, unloading, loading, and the storing of freight cars.' He further found the ground described in the ordinance is a part of Water street; that 'Water street contains all the ground between the front row of blocks and the river or lake, and was granted to the town of Peoria and dedicated to the county commissioners, who laid out the town for public purposes.' He also finds that all the streets of Peoria were laid out 100 feet in width except Water street, which was extended to the river, and that 'the increase in the width of it by the commissioners clearly indicated their intention to make it serve the purpose of a public landing in addition to its ordinary uses as a street; that the effect of the ordinance was to give appellants, without a petition of the owners of more than one-half of the land fronting on the portion of the street sought to be taken, the exclusive use and control of the portion of Water street embraced within its terms for a period of 50 years, and that the city of Peoria had no power to dispose of the use, control, and occupancy of any portion of Water street, and the public landing which is a part of the same, as was attempted by the ordinances. He therefore finds, and so reports, that the ordinance is void, and recommends that a judgment of ouster be rendered against appellants.' Appellants' filed objections to the report before the master, who overruled them, and the same objections were filed as exceptions in the circuit court, where they were by the court overruled and the report of the master approved in all respects as to the recommendation that a judgment of ouster be entered. The court found that the findings of fact reported by the master were sustained by the pleadings and proofs, and decreed the ordinance to be illegal and void; that appellants acquired no legal rights by virtue of it, and that the exercise of their pretended rights under it created a public nuisance and a purpresture upon the premises described and granted in and by said ordinance, and perpetually enjoined the exercise of any rights or powers under or by virtue of it."

Stevens & Horton, for appellants. Robert Scholes, State's Atty., Sheen & Miller, and Henry Mansfield, for appellees.

CARTER, J. (after stating the facts). The contention of appellants that the state's attorney is a mere nominal party to this proceeding is not supported by the record. They filed a demurrer to the original bill in the trial court raising this point, and on a hearing the court overruled the demurrer. There is nothing before us to justify appellants' claim that the state's attorney is lending the use of his name and official character at the request of outside parties. Holding, as we do, that the state's attorney is the actual, and not a mere nominal, party to the suit, we do not find it necessary to discuss the question whether or not private individuals joined with him could alone maintain this action.

Appellants very earnestly insist that the Appellate Court was wrong in holding that they were bound by their answer, wherein they aver that the land in controversy is, and ever has been, a part of Water street as originally laid out and platted, "or that there has ever been any recognition of the rights of the river front as a landing place or levee except by sufferance." They made no objection or exception to the finding of the master that said premises were a part of said street, nor did they, by their assignment of errors, in any way raise this question. If they had intended to claim that the premises were not a part of the street, they certainly ignored in their answer the familiar rule of pleading that a defendant is bound "to apprise the plaintiff, by his answer, of the nature of the case he intends to set up-and that in a clear and unambiguous manner-and that a defendant cannot avail himself of any matter of defense which is not stated in his answer, even though it should appear in his evidence." 1 Daniell's Ch. Pr. (6th Am. Ed.) 712; Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232, 55 Am. Rep. 883; Home Ins. Co. v. Myer, 93 Ill. 271; Crone v. Crone, 180 Ill. 599, 54 N. E. 605; Jewett v. Sweet, 178 Ill. 96, 52 N. E. 962; Dorman v. Dorman, 187 Ill. 154, 58 N. E. 235, 79 Am. St. Rep. 210; Kehm v. Mott, 187 Ill. 519, 58 N. E. 467; Mehan v. Mehan, 203 Ill. 180, 67 N. E. 770; Millard v. Millard, 221 Ill. 86, 77 N. E. 595; 1 Ency. of Pl. & Pr. 927. Had they desired to make the defense which they are now raising, they should have excepted to the master's finding on this point and asked leave to amend their answer. Not having done this, under all wellconsidered authorities they are concluded from insisting that the premises in controversy are not a part of Water street. Aside, however, from the admissions in the answer, the evidence in this case tends very strongly to show that Water street extended to the river. Exhibit B shows Water street bounded on the southeast by Lake Peoria, as the Illinois river is called at that point. The certificate of the surveyor who made this plat May 27, 1834, recites: "Water street

contains all the ground between the front row of blocks and the river or lake and is of various widths, but everyover one hundred feet." Supplying the word evidently omitted, the last clause would read, "is of various widths, but everywhere over one hundred feet." The plat of the town made in 1826, which is shown as Exhibit C, gives Water street as bounded by the Illinois river. It is true, the certificate states that Water street is 110 feet in width, but the decisions in this state hold that, when a street is bounded on one side by a river, even though the plat gives its width in actual figures, it extends to the center of the river. Godfrey v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476; Village of Brooklyn v. Smith, 104 Ill. 429, 44 Am. Rep. 90; Owen v. Village of Brookport, 208 Ill. 35, 69 N. E. 952; People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437, 106 Am. St. Rep. 179.

If the premises in dispute are a part of Water street, then the city council had no right to authorize any part of this street to be taken for the uses and purposes set forth in this ordinance, "except upon the petition of the owners of the land representing more than one-half of the frontage of the street." Appellants make no claim that there is such a petition, nor do they seriously insist that if this be a street the city could by ordinance authorize them to use it in the manner set forth without such petition. They admit the rule repeatedly asserted by this court, that the streets of a city are dedicated to the city for public use, and, while subject to the control and management of the city authorities, they cannot convey or incumber them so long as they are public streets, but it is their duty to hold them in trust for public uses only. They cannot grant in them any easement or right not of a public nature, and the entire street must be ever maintained for public use, and no corporation or individual can have granted to it for its exclusive private use any portion of such public property. Hibbard & Co. v. City of Chicago, 173 Ill. 91, 50 N. E. 256, 40 L. R. A. 621; Smith v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393; Field v. Barling, 149 Ill. 556, 37 N. E. 850, 24 L. R. A. 406, 41 Am. St. Rep. 311; Snyder v. City of Mt. Pulaski, 176 Ill. 397, 52 N. E. 62, 44 L. R. A. 407; Pennsylvania Co. v. City of Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 223; Chicago Dock Co. v. Garrity, 115 Ill. 155, 3 N. E. 448. It is conclusively shown by this record that appellants are using a portion of the disputed premises in such a manner as to exclude entirely any public use. As was said in the opinion of the Appellate Court: "The testimony sustains the master's finding that appellants had taken possession of the land and built a number of tracks, sidings, and switches, 'and are now using said strip of ground as a railroad yard for switching, loading and