" FEDERAL BEPORTER. 'I.,
LORIE'll. NORTH CHICAGO CITY Ry. CO. and others. " !
.i.
. (Oircuit Oourt,N. D. Illinoi8, May 18. 1887.) STREETS-RIGHTS OF ABUTTING PROPERTY OWNERS-EASEMENT-OWNERSHIP OF FEE. .
!.n abutting property owner has no other interest in the streets of .. than all,!lo.8Elment In common with the public. The city owns the streets fee.. " ......· , . . .. . .... .,' ii;: EMINENT DOMAIN-ApPROPItIATtON OF PROPERTY-DAMAGES.
III
Undie.·rT1onst; Ill. art. 2, 1\ 1.3·. pr.oviding that ".private pro.perty shall not be taken mida.uiaged for pubIicuse without just compensation." only damages for injurjes caused by an actual appropriation of private property need be paid in advance.' .
3.
STREET RAI'Ll'tOADS-DAMA.GES--REMEDY-AT LAW-INJUNCTION·
.,Special injury.to propt\rty,re,sulting from the construction and maintenanCle of a IJtreet railway in front :thereof,must be remedied by an action at law for the special damage, and not by an injunction. For an injury sustained in common:withthe public at large there is no remedy.
.. PRINCIPAL AND AGENT-RSl'lunIATING UNAUTHORIZED' A,CTS-SILENCE-RATI'FICATION. ' . ,
Silence milot repudiating the unauthorized act of an agent. when such act is brought home to the knowledge of the principal, amounts to Ii ratification on the part' of the principal.
,AllanO.Stmy; Geo.W. Kretzinger, and James K. Edsall, for complainant. , for defendants.
GRESHAM,J. This suitwa.s commenbed by Nathan Lorieagainst the North Chicago Street-Railroad Company, the Notth Chicago City Railway and' other corporations and certainindividuals, to enjoin the defendants 6-oin cOilstructingand operating a cable railway on Illinois street, between [email protected] and Clark streets, on Clark street north 'of Illinois and in .arid through the La Salle street tunnel, in the city of Chicago. The questions which are how before' the court arise upon the complaina.nt'str1011bn for a proVisional injunction. Th,e complainant owns l1 lot, and theJHhildings thereon, at the north-west corner of Clark and Illinoisstre'ets; frontage being 50 feet on Clark street, and 80 feet on lllinois street: It'is at this point that, the railway passes from one street into . . 'The court shOuld not thus reach ant its strong arm unless the facts clearly callfotsuch action. Even if the right to construct and operate the'railway not clear, the complainant is not entitled to the relief prayed for uIilesshe hils been, or wm be, disturbed in the enjoyment of his property,'forwhibhhehasno lidequaterettJedy at The complainant ha,sno other'iin'tel'est or right in the' streets, in'cluding the tunnel, than p,il easementi in common with the His. proprietary right does .not extend td the middle of the street. The city owns the streets in fee. The property has not, therefore, 'been appropriated; nor is it proposedJtOappropriirte"any part of it for the use of the North Chi· cago Street-Railroad Company. No direct or physical injury can result toihecomplainant from and operation of, the railway
LORIE 'V. NORTH' 'CHICAGO CITY RY.
co.
271
in 'front of his premises. Thecotlstitution of Illinois declares that" private property shall not be taken or damaged for public use without compensation." The damage, however, 'which the plaintiff will sustain, if -any, by the construction and. operation of the tracks over the streets in front of his property, will not be a damage, within the meaning of the {lonstitution, for which c01I?-pensation must be made in advance. The -damage contemplated by the, constitution is an injury resulting to the owner from an actualil.pptopriation of his, private property, and it may be that the taking of part only of a lot or parcel of land will entitle the owner to compensation in advanoofor the injury resulting, thereby to the unappropriated part. Stet80n v. Railroad 00., 75 Ill. 74. If the complainant canElhow that the construction and maintenance of the tracks in front of his premises will result in special injury to him; -not a mere injury which he will sustain in common with the public at large,-his remedy will beat law for the special,damage, and not by injunction. Osborne v. Railroad Co., 5 Blatchf. 366; Cu'rrier v. Railway 00.,6 Blatchf. 487; Railroad 00. v. Prudden, 20 N. J. Eq. 530; Zabriskie v. Railroad 00.,13 N;J. Eq. 314; Hinchman v. Railroad 00.,17 N. .J. Eq. 75; Chicago v. Building Ass'n, 102 Ill. 379. The evidence fails to show, property will be materially injured by the construction and operation of the railway in front of it, or that he will 8ustainanyspecial. damage from the use which it is proposed to make of the tunnel. After it was definitely determined that ihetracksshould turn from North Clark street into Illinois, stree,t,thr by his agent, Samuel Glickauf, leased his rooms on the the thereunder, toT. T. Conklin for five at an annual rental of $4,200 a The lessees desired to ,occupY'this property-:-soone of the firm swears--.-,because of the supposed advantage it would derive as a business point from the construction and maintenance of the tracks in front of it. It is in evidence in behalf of the defendants, and not denied by the complainant,ihat this is a better rental than the complaiJ;lant ever before received for the property. In brief, instead of the evidence showing that the complainant's property will be injux:ed by the maintenance of the tracks in front of it shows that its rental value has been increased.' . , 'A p:etition was presented to thecomnion council in June,188f),'-pmyirig tHatthe North Ohicago Str'eet-Railroad Oompany be allowed to construct i,ts tracks over and upon Illinois street. With the complainant's -name, the petitiOI1 contained the sigI1atures of the requisite number of property holders, an,d without his name it did not. So far a.:s the 'evidence shows, he never, until April 28, 1887,claimed that Glickauf signed his name without authority. In his affidavit made on that day, the compli:linant stated tp!,\t he never authorized anyone to sign the petition for him; and thlWhe"never heard or knew until quite recently that it was contemplated to 'construct and, maintain, at the corner of: llHUvis and Clark streets in 36 wheels, 36 inches in diameter, in rows 1'8 inches .beneath the surfuceof the street." He doesnbtswear in this affidavit that he never knew or heard until recently that his name
272
FEDERAL REPORTER.
hadheen signed to the petition; and it is fair to infer that he knew what Glickauf had done, and that his objection was not to the construction of the road, but to the wheels being placed under the surface of the street in front of bis building. It is doing the complainant no injustice to'say that, if he did 110tactually authorize his agent to sign his name to the ,petition, be knew it had been so signed, long before this suit was brought, and by his silence acquiesced in it. It is significant in this connection that, while Glickauf swears he signed the complainant's name to the: petition without authority, he does not swear that he never in, formed the complainant what he had done. The evidence does not. fairly justify the charge in the bill that the excavationi! which have been or will be made for the wheels in front of the complainant's building will weaken the foundations, and thereby impair tbevalue of' his property. , The motion for a preliminary injunction is denied. 'j
POTT!!, Assignee, eto.,'II. WALLACE. (Circuit OOUrl, E. D. N8'IO York. October 8, 1887.) CORPORATIONS-SUBSCRIPTION-'-TENDER OF FULL AMOUNT-REFUSAL-FAILURB OF LIABILITY OF SUBSCRffiER. \
A tender, during the solvency of a corporatioll, bya subscriber to its stock, of the full amount of his subscription, lind demand for issue, of certificate, which tender is, without legal cause, declined; and the issue of certificate refused, extinguishes the obligation to pay the subscription, ,as against the as3ignee of the it has become insolvent.
On Motion for New Trial. Sidney Ward; for plaintiff. Tracy, eaUin& HudBon. for defendant. BENEDICT, J. At the trial of this cause a verdict for the plaintiff was directed, under the impression that recent decisions of the supreme court of the United States compelled such a determination. A more careful examination of those decisions, in the light of the argument addressed to me on .tbemotion for a new trial, has shown that none of the decisions of the supreme court upon which the plaintiff relies has gone so far as to hold that, a subscriber to the stock of a corporation is liable to the assignee of the.:corporation after the insolvency of the corporation for the amount of his subscription, when he in this case, that during .the solvency of the corporation he duly and in good faitl;r tendered the oorporation the full amount of his SUbscription, and demanded a certifi:cate ,ofstock to the amount j that the corporation, being still solvent, without legal cause refused to receive· the subscription, and issue the cer.:tificate.
