delivered the opinion of the Court:
The South Chicago Railroad Company was incorporated under the general act for the incorporation of railroad companies, in force March 1, 1872, and the amendment thereto, of May 11, 1877. The power to condemn property for the purpose of switches, turn-outs and side-tracks, is conferred, in express terms, by section 17 of the act. By the act, the persons incorporating a company are to name the places from and to which -it is intended to construct the proposed railway, but no limitation is laid down as to the places where switches, turn-outs, or side-tracks are to be constructed. When it is necessary to cross or occupy streets in cities or villages, the consent of the authorities thereof must first be obtained, as provided by clause 5, of section 19, of the act. Hyde Park is incorporated as a village under the general law, and clause 25, section 62, of the law, confers power on the board of trustees “to provide for the location, grade and crossing of any railroad. ” This railroad and this proposed track being within the limits of the village of Hyde Park, its board of trustees have by ordinance fixed the location of the main line of the road and this proposed track, determining what streets the road might occupy and cross.
The question in the case is, whether the proposed track is a switch or side-track, or is it an independent branch road. Appellant contends for the former, and appellee for the latter, and it is conceded by appellant’s counsel if the track he this latter, there is no right to build it, and no power to condemn land for it.
As showing the proposed track to be an independent branch road, the fact of the track running to the water-works of the village, and being used for carrying coal to those works, is relied upon, as also the provision of the ordinance making it a condition that this track should be built to these waterworks of the village. It is insisted that this is a mere private use, and that the track was built to serve this use, and because the company was obliged to build it by the requirement of the ordinance. This certainly shews that the track does serve this private use, and that it was designed to do so; and if it served this use merely, and was not an aid in the convenient operation of the main line of the railroad, appellee’s position would be maintained. But if, in addition to serving such use, the track be one which is necessary for the convenient operation of the main line of the railroad, then it may properly come within the purview of a side-track. A side-track can surely be none the less such, because, in addition to the purposes of a side-track proper, it subserves some other private individual use.
There is little force in the circumstance that the track runs perpendicular to the main line. That was the location made by the board of trustees, who had the power of fixing the location. It appears that within the thirty feet in width along the streets to which the company was restricted, there was not room, in addition to the two main tracks, for the construction of any side-track, and the company was compelled to go outside of the street for a side-track, and the place of its location it was for the company and the authorities of Hyde Park alone to determine.
All that appears in the record upon the subject of the character of the track is the petition, plat, and the affidavits of Kerfoot and Jeffrey. As between the opposing opinions of the two latter whether the proposed track is a branch road or a side-track, that of the manager of the railroad is, we think, entitled to higher consideration than that of the real estate agent. To deny "the petition it should appear that what is sought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road. See Matter of B. and A. R. R. Co. 53 N. Y. 574; In re N. Y. C. R. R. Co. v. M. G. L. Co. 63 id. 326; Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 71 Ill. 333; Smith v. Chicago and Western Indiana R. R. Co. 105 id. 511; C. and P. R. R. Co. v. Speer, 56 Pa. St. 325; In re N. Y. C. and H. R. R. Co. 77 N. Y. 248.
The petition avers that the land asked to be condemned is necessary for the right of way, side-tracks, etc., required to construct the railroad. The statement of the manager, Mr. Jeffrey, is most distinct that the land is required for a side- • track, which is necessary for the convenient and successful operation of the railroad. It can not, we think, be said, from anything appearing in the record, that the proposed track was for a use foreign to the purposes of the main line of the railroad, and not needful for its operation.
We are of opinion the court below erred in dismissing the petition, and not submitting the case to the jury to assess the damages, and the judgment must be reversed and the cause remanded.
Judgment reversed.