{ "id": 5256706, "name": "Chicago, M. & St. P. Ry. Co. and Chicago, St. L. & P. R. R. Co. v. The City of Chicago", "name_abbreviation": "Chicago, M. & St. P. Ry. Co. v. City of Chicago", "decision_date": "1899-05-26", "docket_number": "", "first_page": "233", "last_page": "240", "citations": [ { "type": "official", "cite": "83 Ill. App. 233" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "134 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438028 ], "opinion_index": 0, "case_paths": [ "/ill/134/0323-01" ] } ], "analysis": { "cardinality": 586, "char_count": 16050, "ocr_confidence": 0.535, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6024306822521313 }, "sha256": "23acfdc197f4ae61040cd198c27edf2225a2d5bab94eb25c1811546609c9d7c4", "simhash": "1:231d72a2c60c467e", "word_count": 2710 }, "last_updated": "2023-07-14T18:22:35.373210+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago, M. & St. P. Ry. Co. and Chicago, St. L. & P. R. R. Co. v. The City of Chicago." ], "opinions": [ { "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nThe case was tried before the court without a jury, and from a finding and judgment for $2,175.50 against the appellants and in favor of the city, this appeal is prosecuted.\nThere is no material dispute about the facts.\nThe main contention is that there is no joint liability by the appellants, and that the action against them jointly was improper.\nPrior to the making of the contract of 1888, each appellant company was, severally, expressly bound by the conditions of the ordinance under which it was operating its tracks in and upon Kinzie street and across Western avenue, to build the viaduct in question, and the approaches thereto on each side.\nThe only difference between their several liability in such respect was that the appellant Pittsburg company was only required to pay its fair proportion of the cost of the viaduct proper, whenever a viaduct should necessarily extend over the tracks, also, of another railroad company. Each appellant was liable for the entire cost of the approaches, and the viaduct also, except in the particular case just mentioned in favor of the appellant Pittsburg company.\nAnd so was each company severally bound to indemnify the city and save it harmless against any and all damages, judgments, etc., by reason of the erection of all viaducts, including this one, and the approaches thereto. It ivas then the right of the city to call upon either or both of the appellants as was done, to construct this viaduct, and it is plain that they were then each liable in a several action, upon their obligations imposed by the ordinances and accepted by them.\nUnder such circumstances the contract of 18S8 was entered into.\nThen, for the first time, appellants assumed in some respects a joint contractual duty. What had theretofore been the several duty of each appellant, under their respective ordinances, to build the viaduct and approaches, was then agreed should be done by the city at their expense, and then the question of land damages being apparently raised, they agreed that if the city should have to pay any such damages, for which under the ordinances they were liable, they would reimburse the city to the extent of such payment.\nThe liability of appellants for land damages, by reason of the construction of the viaduct and its approaches, arose out of or was created by the ordinances, either expressly or by implication. C., B. & Q. R. R. Co. v. City of Chicago, 134 Ill. 323.\nHad the contract of 1888 been silent as to land damages, the incidental would have followed the main contract liability created by the ordinances. It was not necessary for any new obligation in such respect to have been created by the contract, and none such was created. Although the contract recited a denial by appellants of their liability for land damages, it, however, in no manner altered the law or the fact in that regard, and probably served no useful purpose, unless to negative some possible presumption or inference concerning their liability for such damages, or to serve as an introduction to their ensuing agreement to jointly indemnify the city to the extent it might have to pay such damages, if, notwithstanding their contention to the contrary, they should be held to their liability for land damages.\nJudicial proceedings having determined the city\u2019s liability for such damages, and the city having paid them, appellant\u2019s agreement ripened, and the city\u2019s right to an action became perfect.\nThe obvious purpose of the sixth clause of the contract of 1888, and the only one that we can detect, was to substitute for the already existing several obligations of each of the appellants, their joint obligation in such respects. By it, what each was severally liable for before, was changed to a joint liability for. By it there was a waiver of appellants\u2019 previous right to be sued severally, and they ought to be treated as having estopped themselves from now asserting such earlier right. It is difficult to say what more apt words could have been employed to make the \u25a0agreement a joint one than were used. Whether appellants were legally bound to pay land damages, severally or jointly, was their right to have settled by legal proceedings, no matter how plain their duty was in that regard, and the only reasonable interpretation to be put upon the sixth clause of their contract of 1888 is that they thereby consented to have such proceedings prosecuted against them jointly instead of severally, as, without the agreement, must have been done.\nThe right by the city to a several action against each of them already existed. Why contract anew that it should exist ? Parties will not be considered as contracting idly.\nThe judicial proceedings which the contract of 1888 provided might, at the election of the city, be brought to determine the question of the liability of the appellants, were instituted by this joint action against the appellants, and, without intervening error of any substantial kind,it has been determined adversely to the appellants.\nCounsel for the appellant Pittsburg company, makes the particular point that as between it and the city there is not any privity of contract or estate.\nThat company, as already said in the statement of facts, became successor to the 'Columbus, Chicago & Indiana Bailway Company, to whom and to its successors the ordinances gave permission and authority to lay and operate tracks in said Kinzie street.\nCounsel argue that because the conditions (concerning viaducts and indemnifying the city) of granting such permission and authority, do not in terms purport to bind the successors of the Columbus company, they are personal to that company and do not bind the Pittsburg company.\nWe regard the point as more ingenious than sound. It is not permissible for the purchaser of the franchises or easements of a railroad corporation, granted or acquired for a public purpose, to take and hold the privileges freed from the public duty imposed as the condition of the grant.\nWe have considered, although we have not commented upon, all questions presented by the record, and finding no substantial error, the judgment of the Superior Court will be affirmed.", "type": "majority", "author": "Mr. Justice Shepard" } ], "attorneys": [ "George Willard, attorney for appellant, C., St. L. & P. R. R. Co.", "Charles B. Keeler, attorney for appellant, C., M. & St. P. Ry. Co.; Geo. R. Peck, of counsel.", "Charles S. Thornton and Samuel A. Lynde, attorneys for appellee." ], "corrections": "", "head_matter": "Chicago, M. & St. P. Ry. Co. and Chicago, St. L. & P. R. R. Co. v. The City of Chicago.\n1. Estoppel\u2014To Raise the Question of Several Liability.\u2014Where a city has a fight of action against two railroad companies, severally, to reimburse itself for damages paid in satisfaction of a judgment rendered against it in favor of a property owner for damages sustained by reason of the construction by the railroad companies of approaches to a viaduct, such companies may by agreement consent to a joint proceeding against them by the city to determine their liability, and so estop themselves from raising the question as to the regularity of such proceedings.\n2. Franchises\u2014Sales\u2014What the Purchaser Takes.\u2014 It is not permissible for the purchaser of the franchises or easements of a railroad corporation, granted or acquired for a public purpose, to take and hold the privileges freed from the public duty imposed as the condition of the grant.\nAssumpsit, on a contract of indemnity. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Finding and judgment for plaintiff; appeal by defendants.\nHeard in the Branch Appellate Court at the October term, 1898.\nAffirmed.\nOpinion filed May 26, 1899.\nStatement of Facts.\u2014The city of Chicago sued the appellants jointly, in assumpsit, to recover the amount paid by it in satisfaction of a judgment rendered in favor of a property owner and against the city, for land damages sustained by the land owner by reason of the construction of the south approach to Western avenue viaduct.\nThe viaduct, having both approaches in Western avenue, extended over Kinzie street, in which are located two tracks of the Northwestern road, two tracks of the appellant Milwaukee & St. Paul road, and three tracks of the appellant Pittsburg road. Two additional tracks of the last named road lie to the south of its tracks in Kinzie street, upon its private property, the viaduct extending over all nine tracks.\nThe rights of the appellants in Kinzie street were granted by two separate ordinances of the city. One of said ordinances contained a direct grant to the appellant Milwaukee & St. Paul road.' The other ordinance contained a grant to the Columbus, Chicago & Indiana Central Railway Company, by whom the last mentioned five tracks were\"laid and for a time operated. Afterward, the appellant Pitts-burg company, by foreclosure and 7nesne conveyance, became successor to the Columbus, Chicago & Indiana Central Railway Company, and thereafter owned and operated said five tracks.\nEach of said ordinances contained the following condi-, tions:\n\u201c The permission and authority herein granted are upon the express condition that the said Chicago, Milwaukee