, 1870-07-23
THE LAW COURTS,
occupation OF South Clark Street
BY the Chicago City
Railway.
Injunction Asked for--Argnments Of
Counsel-Takeu Under Ad.
Visemsas
Property In Accrctlons to tho Soils-.
A Lake Ahorc Snnd CaAc
Dec1dcds

A Lake Shorc SNnd CaAc
Decrdcd.
United States Circuit Court.
sor1u c,4xx STRICT r4vkx1xr,
Tic application OF Nj. SII2s T. Miller, Of Louis
r1lle, Kentucky, for IN Injunction to restrain the
Chicago City Railway Company from laylnr q
trael upon South ClArk street. sAu,e cn to be II.
sutd in the United ssates Circuit Court yester.
t11y. before Judgc Blodsctt The compla!nan,
was represented By Thomas uoyne and
Frsnk Adams, EsqA The defendant, By Charles
Hitchcock, E.q. 1t would seem that the railway
company, believing II has the right under our
municipal scsa, 70 l4y track up The street 20 thu,
the aanle be completed on OF before the ea dAy OF
November. OF this Jcar, has commenced to place
Its iron upon The intct1ectloa OF Clark and " xan-
nGton stlrrts, which Is nptnfned, 30 that At some
point by removing the block pavement in course
uf construction thereA The complainant oJfects.l
70 ths - pro I'd gave no,c Of ao
ta4eu ia work, usd yesterday came into court 10
assert It's r1ShtA
Nj. TAolis 1lorss appearing for complainant,
stated tht "stvt Of The i. eseni application; 1t Ia
10 rrt1rr, now, temporary Injunction to pre-
vent II. laying III the horse railway track on
south clstk street. l!e ,oas the gn,uni that tue
company has no night - cover Clark street with
tht tnr1ieu IT track, Ec II single OF do1ue, for
thc purpose Of Transporting upon 1t passengers or
freight ite Gelleti Tue authority Ut the company
in Tie premises lie believed the pretense Is
rsade thst an ordinance having been passed in
ls:.. 81 auuug 10 the compdu5 TO lay down tracks
a.it ecupy certain streets, the South division,
among "a hich " rs Cla street. the privilege waa
Eranted III the fEsi nee, " lAld On ClArk street
within eighteen mouths
The cnAne! Of the rn,lway company conferred
tie over to lgy down uAcls Oh such streets a.
TIE Common Council should authorize. The
Council, l'y L. ordinance OF 1859. did grant The
H4nt Gu South ClaIk street. but 1t Was TO be e1.
a.I SHh lrf~
IN eighteen uor'hs from the passage Of the orl!.
nanct. AftrIrarl Lhc Common Council, bJ crdi.
nsnct, extended this time. That ordinance vas
rsssett ~ tue 1s:h n' February, 1850, and 1t pro
sldes th-t he third zecton OF the ordinance. entitled
"an ordinance authorizing the extension and
operation u er'aln horse ratlways IN the streets
OF the South aud We6t Dlftkons Of Chicago be,
he nue ior TIC CONSTRUCTION ot . the
ralxsy uaes On cl.rk street, = sad ordinance
Yeas, md that the iims for the construction OF
The several raiina1x, And each and every one
thereof. In ss,d section mentioned or referred to,
be extended for the per4od OF rEe year, beyond
this rtnc mentioned In said ordinance for the corn-
pleunu tDesrof. Iron this the questions a.tse:
o, tits ordinance, whcn i February IS, isso. or.
whether 1t Is ten yea:s fruin the time TO have
elspat.i under the fEst ordinance, WHICH wa'
passed in 1883. II The former, then The time has
elapsed within which they have the right 70 build
the toad.
IL. In connection with these ordl5ances WAS q
A,t company. not 70 occupy ClarE etreet and not
10 build fs road then, bnt 10 postpone It for three
years, aud cuunEal Insisted that In any event bJ
maieiy the construction Of ths road fof the ves5
Time which they were allowed 70 build IT. The
Common Council accepted The terms Of the rrso-
amendasosy orltnance Of March ., 1sso. The
resolution was In effect tha. In consideration Of
the rrpe2l Of The sth and 18th SECTIONS Of orf,l-
nanee Ct February u, lso9, this s.nnany, as %
to the postpunslneut OF laying down
Its track along said a1eet or any part thereof for
and durrG the time In said anenuatory prdI-
nance mentioned; Provided, That nothing herein
coutslneu shall prevent This company from using
~ much OF sxid street as shall be necessary tu
No1h Chicago city railway Company. ia pursu-
that behalf 10 bc PASSED." Counsel urgrd mat
1ianchisc, and that the time mentioned meant iii
tlc tine that was allowed to the cotnpany To con
6tFuet the rnu.
Nj CHARLES HITCHCOCK, for the defendant re-
MARKED lhat tho complainant not only asks to pre-
vent the present occupation OF say part Of South
Clsrk STREET hut the ultimate use OF the street BY
The City lsalA AZ Company, anil the claim Of the
Other Eide Is that the .Epany has abandoned any
franchise Or easement II ever hni on Clark street.
eaee e tncW st 1pxhs II uf a sbe nroneriT 1nemi
owners south Of Polk sttect and nurt1 Of 1we1-
ty-secnnd nave, by petition, expressed their de-
had lteu asc.r1a,utd that considerably more than
0re-Lalf of all rha prapeny-owuers between
Randolph anu Polk streets trerhaps two
thlrds ol thtm) have the same le41fe- He thought,
That ttlng sn. ia.:: NJ ono 1'rppeHy-owne1 should
ht allowed, except on Very clear state Of case,
70 come IT. as the representative OF the public, or
the Interests Of the pnbc, to thInrt the majority.
The question btfoIc tt,e court Is simply ono OF
the construction OF lhs railways charter aud thc
ordinances Of The city.
rcary, lS:9, upon the CITY Railway totafe, by cou-
trRet with 1llc ct1nu'on Council. the right to lay
down tracks on streets q the city. On The 2sd OF
A;sJ, iSs: tas Council provided @ fos the lay-
and also that that tzacl should bo
completed within eighteen months from the pass
act VI the ordinance. That lime would expire On
the Sd day ol November, 1s6o- Defure The e1pIr-
amen OF that line the Council passctl Al ordnance
Psov,dng that The nI;'tnancs 20 Of February. lsas
sIuc'tun Of the railroad tEAck On Clark street,
IN said o1dlnaace mentioned, be extended for
ne ne i*sioa Of .sn !sa.s; aud that tns time fot
each nnu ever! OLE thereof In said section men.
Toned ur rtIefrsd ~, be extended for the period
ordnance for the completion thereof: Provided,
however, that tie Bluc Island avenue and Ehe
Milwaukee avenue lines shall seyerauy be con-
pa,kaxe uf this ordinance"
On the Iar1 Of complainant, It Is insisted thst
this orIIn.nce t. to receive tae same cons melton
wc1ds 'steu Feaf1" In other words, that the
language, Immediately preceding the pruvlso,
.beyund the Tina mentioned III said oEttnAnce
for the COZ r!eion thcreHf," " u not 10 be under
sood Elf qualifying lhe extension Of utuc ~ to ths
Clark Etrrrs railway. Merely for the purpose Of
ar- umtnt, aad for tnat purpose only, he roa,d
admit that such petlul VAS therr plAced, 2ud
would then AsA the Court what construction ought
u lt gwen to lhe langnsges To hls mind Il
ten years shaii te aided to the stuc sithln which
the company mAy cnns'rrct the Tine By way ol
illustration, be supposed the case Of q promssory
note hot sei mnturte. a. 10 Its date OF payment
In such case If IL ,.e agreed to extend II fuf .nree
or nine montns, O. for any period Of time, that ex-
tension 1uns nut frum the day Of the Negotiation,
parable To extend period OF time Is to add a
tine, rs 10 extend u railway one hundred miles,
is I" e1tena ii that distance beyond the existing
But considering the ordinance ~ 1t actually
Stands, the rea OBS for this conclusion
~ nsc n, somrlets, PLAIN ,, and -. elear Tns5s
ycaEs, and 1t Is but far construction to consider
Ii ns an extension Of the time after tho c!Enttcn
months which tal already been made the limit OF
time. 49,
Looking further ut the pruviso, the mind OF the
Council Is fully developed, and 1t has bpt one
thought. AID tlAs Is this construction Of the
Language used. Why provide tha, two tines should
be constructed within certain time from the
passage OF the ordinance, uuicss some other pru-
vsirn has tecn made t,y lhc same ordinance IN re-
gard to other llhes-
Furthermore, this ordnance passed en- the 1s.h
of February, 1-tn. On the 18th OF Febguary, i've
days thereafter, the CITY RAILWAY Company &C
A'o'hrr ryErH,*lt,tt- That resolution provided
That this company hc!eh! accepts Of the pro-
q tl- CITY 81 Chlcaga. passed on The 18th day OF
February, 1sG', a:ncEdaoEy Of the tarl sec:lon Of
Ill c1duancc c.tiuesl An ordnance authurix.ns,
the extension and operation Of certain horse rail-
ways In the streets Of lhe South and West D.vis.
ioEs Of Chieago, passed May =, 1884, And in con.
ftucra1ion thereof, and OF the repeating, BY eal.l
Council "a be sgnIuetl by acceptance hercoD oi
the utpth anh twelfth sections VI the above cnti,
u. ordnance, .has eomrsa,, a % said south
peipoae1nen: Of l. 7tas doxn is sef along ssid I'd
street, or any r11t thereof, foI aud dn17ng the
time in ss,d amendalorJ ordinance mentioned
dnarce men'iontd w7s the period OF ten years
The proposition tsen was, to postpone tue inviting
duwn OF their t1tck Tor Tue ne1!ot1 ~ tea years
taiH scctions OF former ordnance On the sEt
OF March following, the Council passed the ordi
nance mseire tais 5sres and accepting sas ;a dsl1,
Of tne reaolasion: . That the resolution o
on on inc is,a asy Il Feeruaiy, 1855 lcndcFed s Z
this body ito which reference Is hereby m1ae,
whereby the sid coEnpany ooliGates isseli to post
pore THE laying down of Its track on EoQth Clad
etfeet, fer and dnFn1 The term OF ten years, BE-
End The SINE Is hereby, IN ali things accepted
and sa.d aEnendatoT ordinance therein men
ipe FOR ten ycark- the ob1oxious sections arc re
pea'rd- Th,s he shoEght was - plaio b1rKat,
as wss 1t sTsI n1as, M Il Il be be tsue that n te:
oman, Of February 1s, 1850, then the comp.n,
pruyNsetl to a. antlon the right given as to Ciari
STREET, for then It would haze no time lei
In which to Lay lt3 rack but, 1t kucl
WIS the Intention. nhcrrta Consisted ta
necessity Of fur lorna! ordinances snl this rel
oluuon: II thc city rxI!wsy hAd Had, IN consid
crstlon Of repeating these sections. We win ahat,
don our fEalchise cn Clark street, and the eee
tons had been repealed, then the result elaine
on the ether hide to br 2ttalncd, would have bee
brought 4Ex.ut. but the real object was TO pos
pouc, md not 10 ahandoa and Ecllnq1lsh. aud 8
70 postpone u 10 leave rome time during Whlc
to laye the right tu lay donn the track
According u bis theory, The company has nut