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the respondent had the discretionary right to tions must, manifestly, rest upon the same change the location of its depot notwithstand- principle, and a company cannot therefore ing the mere fact that it had previously lo- be compelled to maintain or continue a stacated the North street depot and maintained tion at a point when the welfare of the it, stopping its trains there for a long period company and the community in general reof years. In other words, was it estopped in quires that it should be changed to some January, 1904, to abandon that station and es- other point; and so we have held that tablish another. There is no evidence in the

a railway company cannot bind itself, by record to justify the conclusion that the re- contract with individuals, to locate and main. spondent was actuated by any sinister or tain stations at particular points or to not fraudulent motive in making the contemp- | locate and maintain them at other points" — lated change, nor do we understand that the

citing authorities. After quoting at some relator claims that it was threatening to act | length from Marsh v. Fairbury, Pontiac & arbitrarily for the purpose of oppressing or Northwestern Railway Co., 64 Ill. 414, 16 injuring the public. Conceding, then, as we Am. Rep. 564, St. Louis, Jacksonville & understand counsel to admit, that the rail

Chicago Railroad Co. v. Mathers, 71 Ill. 592, road company has in the first instance the 22 Am. Rep. 122, and People v. Chicago & discretionary power, fairly and honestly ex- Alton Railroad Co., supra, the opinion conercised, to locate all its passenger and freight cludes: "In People ex rel. v. Louisville & depots, does the second proposition above lay Nashville Railroad Co., 120 Ill. 48, 10 N. down the proper limitation upon that power

E. 657, and People v. Chicago & Alton Railwhen an attempt is made to relocate its sta

road Co., supra, the facts were settled by the tions? It will be observed that that propo- pleadings and left no question but that the sition limits the right to relocate, unless an

public welfare required stations to be mainother location is established of equal safety,

tained at the points where we held they equal accessibility, and equal convenience to

should be maintained, and there is therefore the public as the one abandoned. In other

nothing in either of those cases that miliwords, it holds, as a matter of law, that the

tates against our conclusion here." The respondent has no right, in any event, to

conclusion reached was that no sufficient change its passenger station for regular local

grounds were shown in that case for the trains to Collett street, unless the latter sta- granting of the writ of mandamus. Reliance tion was equal as to safety, accessibility, and

seems to be placed by counsel for the relator convenience with North street. As a state

upon the case of People v. Louisville & ment of a rule of law applicable to the case

Nashville Railroad Co., 120 Ill. 48, 10 N. E. the announcement is clearly erroneous. If

657. But that case was distinguished from it had been in the form of an instruction to a jury, it would have been misleading, and

the case then before the court and the one reversible error. As we understand the law

at bar in Mobile & Ohio Railroad Co. announced by this and many other courts, if, People, supra, as follows: "The power of

election in the location of the line of the in the contemplated change of depots, the respondent was acting in good faith, it had the

railway referred to in People v. Louisville right, as against the public, uncontrolled by

& Nashville Railroad Co., 120 Ill. 48, 10 N. contracts or previous acts on its part, to

E. 657, results from the franchise granted change the location, provided it furnished by the charter to exercise the right of emireasonably safe, accessible, and convenient nent domain, and is therefore totally difdepot accommodations for the public, having

ferent from the power of locating stations, also regard for the interests of its stock

which from its very nature is a continuing holders.

one.” In fact, the real point in controversy In Mobile & Ohio Railroad Co. v. People, here seems to be whether the power of a supra, it was said (page 570 of 132 Ill., page railroad company to locate and establish its 646 of 24 N. E. [22 Am. St. Rep. 556]): passenger and freight stations is exhausted “Railway stations for the receipt and dis

when it has once been exercised, or whether charge of passengers and freight are for the the power is, as here said, a continuing one. profit and convenience of both the company That the latter proposition must be true and the public. Their location at points seems too clear to require either argument most desirable for the convenience of travel or the citation of authorities. The case of and business is alike indispensable to the

Chicago & Alton Railroad Co. v. Suffern, efficient operation of the road and the en- 129 Ill. 274, 21 N. E. 824, cited by counsel joyment of it as a highway by the public. for appellee as authority for the proposition Necessarily, therefore, the company cannot that when a depot has once been established be compelled, on the one hand, to locate sta- it cannot be changed, will, on examination, tions at points where the cost of maintain- be found to have no points of similarity with ing them will exceed the profits resulting the case under consideration. The mandatherefrom to the company, nor allowed, on mus in that case was allowed to compel the other hand, to locate them so far apart the company to perform a duty imposed upon as to practically deny to communities on it by the Constitution, and prevent it from the line of the road reasonable access to its changing the location of its switch track

The duty to maintain or continue sta- leading to the relators' coal mine, opened


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in reliance upon the maintenance of said, and their safety, accessibility and conveniswitch and operated for a considerable ence, and we think the trial court was in length of time.

error in holding that the change could only The change in situation, circumstances, be made, “in any event,” unless the condiand surroundings of innumerable kinds will tions were equal. Reasonableness, and not readily suggest that there must be power equality, is the proper test. Of course, if somewhere to change the location of such it could be seen that the conclusion reached stations, and, as has been said by the courts, by the court was the only one properly dethe common interests of the railroad com ducible from the evidence, or that the depany and of the community at large proper- cision, under all the facts and circumstances ly place that power in the railroad company, of the case, was correct, then the mere fact to be exercised reasonably and from proper that an erroneous proposition was held motives. The facts of this case will furnish would not reverse the judgment below; but, an apt illustration of the reasonableness of as we have already indicated, we think the the continuing power to change the location decision below must have been influenced by of railroad stations. Twenty-seven years considerations embodied in the erroneous ago, if that was the time the North street proposition. depot was located, the evidence all shows Aside from this question of law, we are that the city of Danville had a population constrained to hold that the evidence, taken of perhaps 5,000 inhabitants. It had no as a whole, is insufficient to authorize the street car accommodations and no interurban granting of a writ of mandamus as prayed lines. Passengers could only reach the rai) in the petition of the relator. One of the road stations by walking, or by bus line first rules applicable to the granting of the travel. In 1904 the population had increased extraordinary writ of mandamus is that it to perhaps 30,000 inhabitants and was still will issue only in a clear case, and that, a growing city, having a system of electric if the right sought to be enforced is doubt street car lines connecting the business part ful or not clearly proved, it will not be grantof the city with the public parks and rail ed. It was said, in Mobile & Ohio Railroad road stations. One line extended from the Co. v. People, supra:

“The rule has been public square to the Collett street station, so often announced by this court that it is upon which cars were run daily at intervals unnecessary to cite the cases, that a manof not more than 12 or 15 minutes; the fare damus will never be awarded unless the being five cents each way. It had also sev right to have the thing done which is sought eral interurban lines, the number of which, is clearly established. If the right is doubtperhaps, have been since increased, connect ful, the writ will be refused. The burden ing Danville with other towns and cities was on the relator to prove a case authorizin the county and adjoining counties. The ing the issuing of the writ, and in our "Junction," as it is called in the record, at opinion that proof has not been made.” And which the Collett street depot is located, is so in this case, we think, upon a careful the center of railroad communications to consideration of all the facts and circum. and from the city of Danville; that is to stances proved upon a trial, the right to say, the Wabash, and two divisions of the have the respondent stop all or any of its Big Four, together with those of the re trains at the North street depot has not spondent company, all center at that point, been proved. If the railroad company is and, as we understand the evidence, in 1904, willing to furnish a substitute for that depot when the change was made by respondent, within the limits of the city of Danville and trains of all these companies stopped at stop its trains there, which, in view of the junction. There would seem, therefore, street car service and other facilities for to be many reasons for changing the location reaching it, will reasonably furnish the pubof the North street depot unless the company lic with safe and convenient accommodations, can be compelled to maintain two passenger it will have the lawful right to do so, and depots within the corporate limits of the in the absence of legislative control that city of Danville within less than one mile right cannot be interfered with by the courts. of each other. Certainly these changed con Whether or not it would be wise for the ditions would tend to justify the relocation Legislature to vest the power in the railroad of the respondent's depots—at least it can and warehouse commissioners, or other suitnot be said that reasonable minds might able public body, to decide whether or not not differ as to the propriety of the con a railroad station once established might be templated change. Nor do we think it can changed, as seems to be provided in some of be seriously contended that the evidence in the states, need not now be considered for this record fails to show that the establish the purpose of this decision. It is sufficient ment of a regular stopping place for the that no such legislation is to be found in our passenger trains of the respondent at Collett statute. Subject to the limitation that all street will not afford reasonably safe, ac railroad corporations shall cause their pascessible, and convenient conditions for the senger trains to stop at all stations adverpublic. There might be a wide difference of tised by them as places for receiving and opinion as to the equality of the stations 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.

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

[Ed. Note.-For cases in poini, sce 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 shels 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, $8 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, $S 1466, 1467.)

(222 Ill. 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


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, sf 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 bad 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

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 conven- tended to change the character of the ground, ient sheds, platforms, and tracks in connec- or make it anything but a street owned by tion therewith, as the said companies, their the city of Peoria, and under the control of successors and assigns, shall deem necessary.' the city authorities of the city of Peoria to The ground referred to lies between the front the same extent as any and all other streets of blocks 1, 2, 3, and 4, in the city of Peoria, of said city. and the Illinois river. It is of irregular "After replication filed, the cause was rewidth, varying from 200 to 250 feet, and is ferred to the master in chancery to take the 1,200 feet long. Said blocks front on Water testimony and report his conclusions of both street, which is a public street and extends law and fact. The master found and reportin a northeasterly and southwesterly direc

ed that the appellants had taken possession tion along, and parallel to, the river front. of the strip of ground described in the ordiFor many years prior to the passage of the

nance, had rearranged and reconstructed their ordinance 110 feet of the space between the tracks, built new tracks, sidings, and switchriver front and the blocks mentioned, and

es, 'and are now using said ground as a railnext to said blocks, had been used and trav

road yard, for switching, unloading, loading, eled as a street. The remainder of the space and the storing of freight cars.' He further was, it appears, not used for travel along

found the ground described in the ordinance Water street, but was used as a boat landing

is a part of Water street; that ‘Water street or levee, and, as alleged, as a kind of storage

contains all the ground between the front or 'dumping ground.' Several years before

row of blocks and the river or lake, and was the passage of the ordinance in question, granted to the town of Peoria and dedicated by permission of the city, certain railroad

to the county commissioners, who laid out the tracks were laid in Water street by the ap

town for public purposes. He also finds that pellants upon and along the southerly side

all the streets of Peoria were laid out 100 of the 110 feet used for street travel but

feet in width except Water street, which these tracks are not involved in this litiga

was extended to the river, and that 'the intion. The bill is filed in the name of the

crease in the width of it by the commissionpeople, by the state's attorney, and a num

er's clearly indicated their intention to make ber of individuals, some of whom are own

it serve the purpose of a public landing in ers of property fronting on Water street and

addition to its ordinary uses as a street; that some of whom are engaged in river traffic

the effect of the ordinance was to give apas common carriers, join as complainants,

pellants, without a petition of the owners of and allege that their property and business

more than one-half of the land fronting on are injured and damaged by the use and oc

the portion of the street sought to be taken, cupation of the land in dispute by appellants.

the exclusive use and control of the portion It does not directly aver that all the ter

of Water street embraced within its terms ritory within the limits mentioned is Water

for a period of 50 years, and that the city street. The averments are that it was held

of Peoria had no power to dispose of the use, and used and recognized by the city of

control, and occupancy of any portion of Peoria 'as a public street and public boat

Water street, and the public landing which landing, public harbor and public wharf or

is a part of the same, as was attempted by public levee.' The appellants by their an

the ordinances. He therefore finds, and so swer admit 'that all of said ground lying be

reports, that the ordinance is void, and rectween the present northerly line of Water

ommends that a judgment of ouster be renstreet, as indicated by the curbing and the

dered against appellants. Appellants' filed river, was, and is, a part of Water street'; deny that there was any limit to the width

objections to the report before the master,

who overruled them, and the same objecof Water street except such as was contained between what is at the present time

tions were filed as exceptions in the circuit the northwesterly line of Water street and

court, where they were by the court over

ruled and the report of the master approved the river, but its depth was limited between the boundaries aforesaid'; and 'deny that

in all respects as to the recommendation that any of the land ever was held by the county

a judgment of ouster be entered. The court commissioners or the county of Peoria or

found that the findings of fact reported by the city of Peoria as and for a boat landing,

the master were sustained by the pleadings

and proofs, and decreed the ordinance to be and that such land was, is, and ever has been, a part of Water street as originally laid

illegal and void; that appellants acquired out and platted. The answer further denies

no legal rights by virtue of it, and that the that the portion of Water street next to the

exercise of their pretended rights under it river has been used exclusively as a boat

created a public nuisance and a purpresture landing, and denies that there ever has been

upon the premises described and granted in

and by said ordinance, and perpetually enany limitation to the width of Water street as cared for by the city of Peoria, or that

joined the exercise of any rights or powers there ever has been any recognition of the

under or by virtue of it.” rights of the river front as a landing place Stevens & Horton, for appellants. Robert or levee, except by sufferance, or that any Scholes, State's Atty., Sheen & Miller, and use thereof has in any manner changed or 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 unambig. uous 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 an

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 bound. ed 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 every

over 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

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