delivered the opinion of the court:
' Appellee was granted permission by the city of Chicago to occupy the streets with its structure by an ordinance which contained, among other provisions, the following: “No part of the girders on the superstructure shall be less than fourteen feet above the present established grades of streets and alleys, and wherever the said elevated structure crosses or passes over the right of way and tracks of all existing steam railroads the clear head-room between the lower chord of all of said girders and the surface of the rails on all of said railroads or their present or hereafter established grades and from out-to-out of their right of way shall not be less than twenty feet.” Shortly after the passage of the ordinance, and before the beginning of this proceeding, appellee filed in the office of the. city clerk its acceptance of all the terms, provisions and conditions of the ordinance. The ordinance forbade to appellee, in passing over the right of way and tracks of existing steam railroads, the use of any space less than twenty feet above the upper surface of the rail of the steam railroad. No such prohibition is found in the Eminent Domain act. The ordinance, when accepted, became a limitation upon the right of appellee to exercise the power of eminent domain conferred by the statute. (Tudor v. Rapid Transit Railroad, Co. 154 Ill. 129; Same v. Same, 164 id. 73.) Appellee could not, by the exercise of that power, after accepting that ordinance, *221acquire the right to use any space for its superstructure over the tracks and right of way of a steam railroad which was less than twenty feet above the surface of the rail.
The steam railroad track on the premises of the appellant coal company, and which appellee’s structure will cross, is a private switch track owned by the coal company and located upon its ground. The switch track connects with the main line of the Chicago and Northwestern Railway Company, but that company has no right to use the track, or the ground over which it passes, except by virtue of an existing license from the coal company, which, so far as appears from the evidence, may be revoked by the licensor at any time, and it is urged by appellee that for this reason the track in question does not come within the language above quoted from the ordinance, because, as it is said, the word “of,” where it precedes the words “all existing steam railroads,” means “in the relation of ownership or possession,” and that the right of way and tracks referred to therefore are only those owned by “existing steam railroads,” and that as the switch track and the ground upon which it rests are not owned by a “railroad” they are not covered by the ordinance. The term used in the ordinance is not “of railroad companies” or merely “of railroads,” but is of “all existing steam railroads,” and was evidently intended only to identify the right of way and tracks mentioned in the ordinance, by indicating the character of the road of which they formed a part. We think the word “of,” as there used, was not intended to denote ownership. The principal purpose of the ordinance in providing for this space was, no doubt, to insure the safety of those traveling upon and operating trains on the steam railroads, and the end to be attained by the ordinance is just as important in the case of a private switch track over which trains pass, as in the case of a switch track which, with the underlying right of way, is owned by the railroad company engaged in running trains thereon. It is clear that the ordinance includes all tracks *222and rights of way over which the ordinary cars or trains used in operating a steam railroad are propelled for the •purpose of transporting freight or passengers.
The title to the tracks in the coal yard and to the ground over which they pass are in the same owner, and the boundaries of the strip used for railroad purposes, or which might rightfully be used by the company or person running trains over this switch, have not been fixed. It is urged that the quoted provision of the ordinance is not applicable because there is here no “right of way” in the ordinary meaning of that term as used in condemnation proceedings. We think the term in the ordinance does not have such a restricted significance. It means the way occupied and used for the track and the operation of trains. Its width in the present case must be determined by necessity, and is no greater than the space needed for the safe and convenient operation of trains over this track.
It is then urged that no one but the Northwestern Railway Company should be permitted to raise this question. That company has a mere license to use the tracks, which is of little or no value, while to the coal company the right to use the tracks for moving freight thereon in railroad cars is of great value. We think this objection may be made by any party having a property interest in the track or right of way which the elevated railroad is to cross.'
In pursuance of an order of the circuit court appellee filed detailed plans and drawings showing the height, width and method of construction of the elevated railroad structure which it proposed to erect upon the coal company’s property, and from which it appeared that twenty feet of space would not intervene between the surface of the switch tracks and the lower portion of appellee’s superstructure. Appellants thereupon entered a motion to dismiss the petition, for the reason that the plans did not provide the necessary space above the rails of the switch track. Appellee insists, upon the authority of Ward v. Minnesota and *223 Northwestern Railroad Co. 119 Ill. 287, that the coal company having theretofore filed a cross-petition thereby waived its right to move to dismiss the petition, and that for this reason the motion was properly denied. In that case appellants sought a reversal for the reason that there was no proof that the petitioner was a corporation, and it was held that this question could not be raised after the filing of the cross-petition. It was there said that by filing the cross-petition “it admits petitioner has the right to exercise the right of eminent domain.” This statement was made with reference to the contention that the petitioner was not a corporation. That was a preliminary question, which should have been presented to the court prior to the filing of the cross-petition. The cross-petition in this case was filed before the detailed statement of the plans was filed. The cross-petitioner was not at that time advised, by anything appearing of record, that appellee proposed to proceed in any manner other than that contemplated by the ordinance. The motion was promptly made upon the filing of the documents which showed the purpose of appellee, and was therefore in apt time. The Meacham & Wright Company filed no cross-petition, and for this reason appellee’s objection does not apply to that company’s motion to dismiss.
It is unnecessary to consider other errors assigned.
The judgment from which this appeal was prosecuted will be reversed and the cause will be remanded. The judgment relating to the property of the North Side Lumber and Timber Company will not be disturbed.
Reversed and remanded.