South Park Commissioners v. Chicago City Railway Co., 211 Ill. App. 393 (1918)

June 10, 1918 · Illinois Appellate Court · Gen. No. 23,890

211 Ill. App. 393

South Park Commissioners, Appellant, v. Chicago City Railway Company, Appellee.

Gen. No. 23,890.

(Not to be reported in full.)

Abstract of the Decision.

1. Parks and boulevards, § 12 ^* — when agreement as to construction and operation of street railroad lines over boulevard intersections not disturbed. Where a street railway company and a corporation having control over the boulevards of a city have agreed upon the terms upon which the former’s lines are to be constructed and operated at the intersection of certain streets with certain boulevards, the courts will not interfere unless it appears that the execution of the agreement was procured by duress or unless the terms and restrictions imposed on the use of such places are manifestly so unreasonable as to shock one’s sense of justice and fairness.

Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1917.

Reversed and judgment here.

Opinion filed June 10, 1918.

Petition for rehearing stricken June 24, 1918.

Statement of the Case.

Action by South Park Commissioners, a corporation, plaintiff, against Chicago City Railway Company, defendant, to recover the cost of paving and repairing the intersections of certain streets and boulevards. From a judgment in its favor for $1,857.20, plaintiff appeals and defendant assigns cross error.

West & Eckhart, for appellant.

Busby, Weber & Miller, for appellee; Harry P. Weber and George W. Miller, of counsel.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. "

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dever

delivered the opinion of the court.

2. Parks and boulevards, § Vi ^* — mature of control of South Park Commissioners over boulevards. The control of the South Park Commissioners over the boulevards is the same as that of the City of Chicago over the streets and other public places in the city.

3. Parks and boulevards, § 12* — what is right of street railroads to use boulevards under control of park commissioners. A street railway company has no right under the law to occupy and use the intersections of streets and boulevards under the control of the South Park Commissioners in the City of Chicago in disregard of such reasonable restrictions as the South Park Commissioners may impose.

4. Parks and boulevards, § 6* — what is nature of City of Chicago and South Park Commissioners. Both the City of Chicago and the South Park Commissioners are municipal corporations created by the sovereign power of the State for the purpose, inter alia, of controlling and governing the use of streets, highways and public places in the interest of the whole people.

5. Parks and boulevards, § 12* — what is jurisdiction of City of Chicago and South Park Commissioners over and duty as to intersecting highways controlled by each. Where highways under the exclusive control of the City of Chicago and of the South Park Commissioners, respectively, intersect each other, the control of such intersection resides within the joint jurisdiction of such corporations, and the duty of each is so to exercise its jurisdiction as not to interfere unreasonably with the legislature’s purpose in placing such control in their hands separately.

6. Parks and boulevards, § 12* — when park commissioners may prevent use of boulevard intersections by street railroad. Even where no valid contract ordinance is involved, the South Park Commissioners have the right, where a street railway company refuses to comply with reasonable restrictions, to prevent the company’s use of boulevard intersections under the commissioners’ jurisdiction.

7. Parks and boulevards, $ 12* — what is power of city and park commission as to regulation of street and boulevard intersections. Where a city and a park commission have the joint control and management of the intersections of streets and boulevards, each has the power, even without consent, to regulate the use of such intersections.

8. Parks and boulevards, § 12* — when assumed that contract as to use of boulevard intersections by street railroad is reasonable. Where the restrictions as to the use of boulevards by a street railway company at a point where they intersect streets are regulated by the conditions of a contract between the company and the park commission having jurisdiction of the boulevards, the courts will assume, in the absence of very clear evidence to the contrary, that the provisions of the contract are reasonable.

9. Parks and boulevards, § 12 ^* — when ordinance requiring paving and maintenance of boulevard intersections by street railroad is not ultra vires. An agreement, embodied in an ordinance, between a street railway company and a park commission having control of boulevards of a city whereby the former, as a condition of the operation of its lines across the intersection of the boulevards and certain streets, agrees to pave and maintain in repair certain parts of the intersection, is not ultra vires as regards either party.

10. Parks and boulevards, § 12* — when street railroad not required to assent to conditions imposed upon crossing boulevards. A street railway company is not required to assent to unreasonable conditions or restrictions imposed by a park commission controlling the boulevards in a city upon its crossing the boulevards with its lines.

11. Parks and boulevards, § 12* — when ordinance as to repair and maintenance of boulevard intersections by street railroad is reasonable and based on sufficient consideration. An agreement by a street railway company with a park commission having control of the boulevards of a city to pave and repair such boulevards at their intersection of certain streets as a condition of the operation of its lines across such boulevards, such agreement being contained in an ordinance which it had accepted and which had been acted upon by both parties for some years, held not unreasonable and to be based upon a sufficient consideration.

12. Parks and boulevards, § 12* — when liability of street railroad to pave and repair boulevard intersections not released. Obligations assumed by a street railway company to a park commission, constituting a separate municipality, with regard to the paving and repair of boulevard intersections crossed by its lines are not released by subsequent ordinances of the city in which such boulevards are located.