crossing by grading the approaches of the street at the crossing, there being nothing in the charter of the company imposing such duty, or any such duty imposed by any general law in force at the time the company was created. Held, that the company was not liable to this new burden any further than might have been required of an individual, and that as the whole burden was sought to be placed upon the company without regard to benefits, the ordinance was in violation of the constitution, and could not create any liability upon the company, and that the legislature itself could not impose such burden without making compensation.

The court said: "Suppose a natural person had the right of way across his neighbor's grounds, and afterward the city were to locate and open a street across his right of way, does any one suppose the owner of the right of way could be compelled, by legislative enactment, or an ordinance in pursuance thereto, to construct the crossing of the street at his own expense, even if his use of the right of way would render the use of the street impracticable or dangerous until the approaches could be constructed? We presume no one would contend for the power in that case. And why? Because it would impose an unequal and unjust public burden on the owner of the right of way; that, in spirit, would be the taking of private property for public use, without just compensation, which must be paid under the constitution.

The

"If, then, such burdens cannot be imposed upon a natural person, why, or by what reasonable means, can it be required of an artificial person? When brought into existence, these bodies are created persons so far as to become amenable to the same burdens in the support of the government, by taxes and the like, as natural persons coming into and subject to the government. But they are only liable to the performance of such duties to the same extent, on the same terms and conditions as natural persons. legislature can enact of them no greater or higher duties than it can of natural persons, unless the right is reserved in their charters, or by some law that enters into their charters. One of the fundamental principles upon which all good government is constructed and is administered, is equality of burdens and protection. Any other principle is unjust and oppressive." See, also, Morris Canal Co. v. State, 24 N. G. L. 62.

This question arose in New York in the case of Miller v. N. Y. & Lake Erie R. Co., 21 Barb. (N. Y.) 513, where it was held that the legis lature could not under the usual reservation to the legislature in the charter of a railroad company of the power to alter, modify, or repeal it, pass a subsequent act requiring the railroad company to cause a proposed new street or highway, laid out by the commissioner of highways, to be taken across their track, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose at their own expense. This decision, however, was overruled when the question came before the court of appeals in Albany Northern R. Co. v. Brownell, 24 N. Y. 345, where the court said: "Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad. The disturbance of the surface of the ground, which has rendered such work necessary, was effected by the railroad itself; and the reservation of legislative authority we may suppose to have been inserted for the purpose of obliging the companies to conform to such directions as subsequent legislatures should discover to be necessary for the public good, or which should be required by public policy. The difficulties which arose out of the rule that the grant of corporate power for individual emolument created a contract between the corporators and the State, led to the reservation referred to; and this case presents a strong illustration of the wisdom of the legislative policy. The case of Miller v. the New York &

Erie R. Co. (21 Barb. 513) was adjudged in hostility to these principles, and I think it cannot be sustained."

Laying out Highway Across Railroad Track-Damages Recoverable by Railroad. Prior to the decision of the case of the Old Colony & Fall River R. Co. v. County of Plymouth, 14 Gray (Mass.), 155, it had never been judicially determined that a railroad corporation who have, in the ordinary course of business, under an act of incorporation, built a road and had it in full operation, could recover damages for injuries occasioned by laying out public highways over it. In this case Chief Justice Shaw held that such a corporation is entitled to damages for land taken by the laying out of the public highway across its railroad, subject to its use for such road, and for the expense of erecting and maintaining railroad signs and cattle guards at the crossing, and of flooring the same, and of keeping it in repair; or for any increased liability from accident for the increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over its track.

But it has been held that in estimating damages to the railway in consequence of laying a highway across land occupied by them, it is not proper to take into account the increase of business to the company in consequence. Boston, etc., R. Co. v. Middlesex County, 1 Allen (Mass) 324; Old Colony, etc., R. Co. v. Plymouth County, 14 Gray (Mass.),

155.

ST. LOUIS, ALTON AND TERRE HAUTE R. Co.

v.

CITY OF BELleville.

(Advance Case, Illinois. June 20, 1887.)

The city council of Belleville passed an ordinance permitting a railroad company to appropriate certain streets of the city in the construction of its railroad track, switches, turn-tables, and other machinery and fixtures necessary in operating its road, and which provided "that the same shall be occupied with as little detriment and inconvenience to the public as possible; and, if said railroad find it necessary in crossing any of said streets to raise embankments across the same, the streets crossing said embankment shall be so graded as not to make their said embankments an obstruction to crossing the same." Held, that such ordinance is but a provision for a joint use with that portion of the public having occasion to use the streets, adopting other modes of travel; and the streets being open still for general public use, an ordinance prohibiting their obstruction is within the municipal power.

In an action by a municipal corporation against a railroad company for the violation of an ordinance relative to the obstruction of streets where the defendant relied upon an ordinance vacating the street obstructed, which was not passed by a three fourths majority of the council, as required by statute, held, that, in the absence of anything showing that the city had prevented the defendant from examining the records, it must be presumed to have known of the invalidity of the ordinance relied upon.

Where a deed executed by a railroad company, for land which a committee of the council had agreed to accept as a substituted way for a street appropriated by the railroad company, was expressly rejected by the city council,

the city attorney had no authority to accept the deed; and any use he might make of it as a defence in a suit for damages against the city for the closing of the street by the railroad company, not having been made by authority of the city council is immaterial; and no estoppel can be based upon the acts or promises of a committee of the council, which was known to have no power itself to vacate streets, or upon the conduct of the city attorney, who was known to be equally destitute of such authority.

THIS is an appeal from a judgment of the appellate court of the fourth district, affirming a judgment of the circuit court of St. Clair county, convicting appellant of violating an ordinance of appellee prohibiting owners of locomotives, cars, etc., to obstruct crossings, etc., of streets thereby. So much of the facts as is essential to our understanding of the case may be briefly stated as follows: The road of appellant runs in a direction north-west and south-east across Abend's addition, crossing Richland, Spring, and Illinois streets, which run north and south, and Sixth and Seventh streets, which run east and west. The railroad depot is located on Seventh South street, to the east of its junction with Spring street, and appellant claims the right to the exclusive use of Spring street for its yards and necessary use. The appellant is the suc cessor of the Belleville & Illinois Town R. Co., and entitled to all its property, franchises, grants, and privileges. The record shows that Spring street and the next street west of the appellant, upon Seventh street, was dedicated to the city of Belleville in 1849. In 1853 a resolution permitting the Belleville & Illinois Town R. Co. to use certain streets of the city was adopted by the city council, which reads as follows: "Resolved, by the city council of the city of Belleville, that the use of the following-named streets in the city of Belleville, on Chandler & Abend's addition thereto, be, and the same are hereby, appropriated to the Belleville & Illinois Town R. Co., so far as the said company may require to appropriate the same in crossing them in the construction of their railroad track, switches, turn-tables, and other machinery and fixtures necessary to be used or employed by them in operating said road, namely: High, Illinois, Spring, Richland, Race, South, Fifth, Sixth, and Seventh South streets, and such alleys in said Chandler & Abend's addition as are crossed by said railroad track: Provided, that the same shall be occupied with as little detriment and inconvenience to the public as possible; and if said railroad shall find it necessary, in crossing any of said streets, to raise embankments across the same, the streets crossing said embanked streets shall be so graded as not to make their said embankments an obstruction to crossing the same."

Appellee introduced in evidence an ordinance prohibiting the obstruction of street crossings, etc. And appellant admitted on the trial that it had obstructed Spring street before the commencement of the suit. Appellant claimed that that portion of Spring street

within its yards had been vacated in 1852; and, until that part of the addition to the city south of appellant's road had been considerably built upon, no controversy had arisen between it and the public concerning the use of Spring street. No action of the city council entered of record was introduced showing such vacation.

It was also claimed by appellant that, several years before the commencement of the suit, the grounds south of the railroad having been fenced in, admitting of no passage from Spring street to Illinois street, complaints were made by persons who had acquired property and built houses south of the railroad, of the blocking of Spring street crossing by the railroad company, and the city council appointed a committee to confer with the railroad company, and adjust the matter; that this committee met the officers of the company, and it was agreed that the railroad company should construct a roadway on its right of way for public use from Spring street to Richland street, and should acquire property, and open up a roadway from Spring to Illinois street, and build a sidewalk so as to afford convenient access from both streets to Spring street, and that the railroad company should continue in the use of Spring street; this was reported to the city council; that the railroad company made the roadway on its right of way to Richland street, and purchased property and opened up a way to Illinois street, constructed the sidewalk, and the city took possession of the strip of land purchased by the railroad company, and improved and worked it as a street of the city; that the city afterward attempted to vacate so much of Spring street as was within the yards of the company, and published the ordinance as having been passed, sent a copy thereof to the railroad company, and the company execnted a deed for a strip of land south of the railroad to the city, and delivered the same to James M. Hay, the then city attorney. This deed the city attorney did not present to the city council, and it was subsequently lost. The city having been sued for damages in regard to this crossing, the city attorney, Martin Schaeffer, requested the company to execute another deed for this strip, which was done; and this deed, and the fact that the city had procured thereby other convenient access to their property to lot-owners, was used by the city attorney as evidence in that suit. But the deed, when laid before the city council, was not accepted by it, and a resolution was adopted by the city reciting that the ordinance vacating the street was not passed legally by the council, and that the present council refused to pass that or any similar ordinance, and the clerk was therefore ordered to return the deed to the railroad company. The deed was returned to the railroad company.

By agreement of parties the cause was tried by the court without the intervention of a jury. Appellant asked the court to hold the following propositions of law, but the court refused, and appellant excepted: "(1) If the city, by its officers or agents, induced

the defendant to expend money on making a roadway from Spring to Richland streets on its right of way for the use of the public, and to purchase land and open a way from Spring to Illinois street, upon the understanding and promise, expressed or implied, that the defendant, in consideration thereof, should have the right to use that portion of Spring street within its yards for yard purposes, and said city took possession of the lands so purchased, and other lands of the company, in pursuance to said understanding, and worked and used the same as a street, then said city is estopped from recovering a penalty from defendant for using such portion of Spring street for yard purposes, and the court ought to find the defendant not guilty. (2) That the resolution or ordinance of the city council of A.D. 1853, is a license to the defendant, if it is the successor of the railroad company therein named, to use that portion of Spring street within its yards for yard purposes, and the city cannot recover a penalty for using said street for such purposes, even if it obstructs the street there by such use, without first revoking said license, or giving the defendant notice that such use must be discontinued. (3) If the city accepted a deed from defendant for the strip of land mentioned in ordinance of city of July 5, 1883, and used the same in defence of a suit brought against the city, and took possession of said strip of land, and worked the same as a street of the city, it is estopped from prosecuting defendant for a penalty."

SCHOLFIELD, J.-The only questions that we are at liberty to consider are expressed in the three propositions in writing presented by counsel for appellant to the circuit court, and asked to be held to be the law, for no question of law arose upon the trial in any other manner.

NOT ESTOPPED BY ACT

NEY.

1. It is provided by section 1, c. 145, Rev. St. 1874, that it shall require a three-fourths majority of all the aldermen of the city authorized by law to be elected by such city to vacate or close any street or alley, such vote to be taken CITY, by ayes and noes, and entered upon the record of the OF CITY ATTOR council or board. No other body or officers or persons have authority in the matter. The records are open to the inspection of the public, and it is incumbent on any one acting on the faith that a street or alley is closed, to know what is the fact, unless he shall be prevented by those having authority to act for the city from obtaining such knowledge. There is no evidence in this record tending to show that the railroad company was prevented by those having authority to act for the city from learning whether this vacating ordinance was adopted by the requisite vote of alderThe railroad company is therefore presumed to have known that it was not so adopted, and hence that it was invalid and ineffective for any purpose. The deed first made to the city was

men.