dissenting:
This is a petition, filed on June 10, 1892, in the Superior Court of Cook county by the appellee for an order, requiring the clerk of said court to return to the Merchants’ Loan and Trust Company a certificate of deposit for $35,000.00, “given in the case of the City of Chicago v. George G. Ligare, lately pending in said court,” duly endorsed, and requiring said bank or trust company to return to petitioner said money with interest. The petition did not make the city, or the trust company, or the clerk, or Ligare, or any other person or corporation, a party defendant thereto, but written notice was served upon Ligare and the trust company that the petition would be called up for disposition. Ligare appeared, and moved to dismiss the petition, which motion was overruled, and exception taken. He then filed a special demurrer to the petition, which being overruled he excepted and stood by his demurrer. The petitioner then introduced certain documentary proofs in support of the petition, and the court entered an order in accordance with the prayer of the petition, to which Ligare excepted, and prayed an appeal to the Appellate Court, where the order was affirmed, and the present appeal is prosecuted from such judgment of affirmance.
The case referred to was an attempted condemnation proceeding which came to this court, and is reported as Ligare v. City of Chicago, 139 Ill. 46, where the ordinances referred to in the judgment hereinafter mentioned are fully set out. The petition herein alleges, that judgment was entered in said condemnation proceeding substantially as follows:
“April 7, 1890, judgment on the verdict, in substance as follows: Recites attendance of counsel; separate trial as to Ligare, as the owner of said lots 1, 2, 3 and 4, in block 10; that no other persons are interested in said lots except the Connecticut Mutual Life Insurance Company and the Joliet Stone Company, both of which parties were duly made defendants and served with process, and that the insurance company has been defaulted for want of appearance, and that the interests of the Joliet Stone Company have been withdrawn from this proceeding by a stipulation made between the parties, and that the motion for new trial and in arrest of judgment were duly made and argued. Thereupon it is considered by the court that it ought to proceed and adjudge and make such order as to right and justice shall appertain, etc., and the court does decree, adjudge and order:
“(a) That the motion to vacate the verdict and report of the jury be overruled, whereto defendant, Ligare, excepts.
“(&) Like order as to motion in arrest.
“(c) That the owners and parties interested do recover §25,000 as and for their full compensation for lots 1 and 2 to be taken by said city for the uses and purposes set forth in said petition and in the ordinances of said city, specified in the pleadings herein, whereto defendant, Ligare, excepts.
“(d) That the owners and parties interested do recover for their full compensation for the damage which they will sustain and the injury which will be done to said lots 3 and 4 from the taking, appropriating and using, for the purposes named in said petition and ordinances, said lots 1 and 2 and the filling of said Ogden slip, and as a condition precedent to the taking, appropriating and using of the said lots 1 and 2 the further sum of 810,000, whereto defendant, Ligare, also saves his exception.
“(e) That the city of Chicago may, upon the payment of the full compensation aforesaid, amounting to §35,000, or a deposit of the same as required by law, thereupon enter upon and use the said lots 1 and 2 for all the purposes specified in said petition and ordinances, whereto defendant, Ligare, also saves his exception.
“(f) Hereupon said George G. Ligare prays an appeal to the Supreme Court, which is allowed on filing, within thirty days from the date of the judgment, his appeal bond in $500, with Ashabel G. Ligare as surety, conditioned as the law directs, together with his bill of exceptions.
“(g) Notwithstanding said appeal, petitioner shall nevertheless have the right to enter upon, take and use said lots 1 and 2 for the purposes mentioned in said petition and ordinances, on condition of the payment to the owners and parties interested, of said sum of $35,000, or the deposit of the same with the Merchants’ Loan and Trust Company of Chicago, or such other bank as may be selected by agreement of the parties hereto, to be paid to said defendant, or the persons legally entitled thereto, on the final decision or settlement of this case, or returned to said petitioner or party making said deposit, if it shall be entitled thereto.
“(7i) And upon further condition that said petitioner shall also execute and file in this case a good and sufficient bond, to be accepted by said defendant or approved by the court, in the penal sum of $40j000, conditioned for the payment to said George G. Ligare, or the persons entitled thereto, of such compensation as may be finally adjudged to him or them in this suit in case of any subsequent trial of- the same pursuant to law,—to which leave to take said lots 1 and 2 the defendant saved his exception. ,
“(i) Provided that said petitioner shall also file in this case a further good and sufficient bond, to be accepted by said defendant or approved by the court, in the penal sum of $50,000, conditioned that in case it shall be finally adjudged and determined that said city of Chicago has no lawful power to authorize or direct the filling of said Ogden slip according to the provisions of said ordinance, said petitioner shall and will, immediately thereupon, proceed to remove and clear out, or cause to be removed and cleared out, from said Ogden slip all filling, obstruction, work and materials, if any, which shall have been placed there by said petitioner or said railroad company, and shall complete such clearing out and restoration of said Ogden slip within a reasonable time next after such final decision,—-that is, the petitioner shall restore, or cause to be restored, said property as it now is, with all means of access in so far as they are interfered with by anything done by the petitioner or said railroad companies under said ordinances and these proceedings.
“O') And that in case of the final failure of said condemnation proceedings said petitioner shall also restore to said defendant, or the person entitled thereto, said lots 1 and 2 in as good condition as when the same were taken under these proceedings, with access as aforesaid.
“(k) And that in case said defendant be put to any action, suit or proceedings to enforce his rights under said bond, or any condition thereof, then and in that case he shall be also entitled to recover all the expense, costs and counsel’s fees which he may reasonably incur in that behalf,—to which leave to fill said Ogden slip the said defendant, Ligare, saved his exception.
“(0 Judgment against petitioner for costs to be taxed.
“The order for possession, entered May 27,1890, recites that Ligare has filed his appeal bond, duly approved, and his bill of .exceptions, duly signed; that the city of Chicago has filed the bond of the Illinois Central Railroad Company, one of the parties interested in the condemnation aforesaid, in the sum of §40,000, together with the bond of the same company in the sum of §50,000, both of which bonds are specified in the judgment order entered upon the verdict herein, and has also caused the deposit required by said order to be made as specified therein. Thereupon it is finally ordered by the court that the petitioner may proceed to take and use, or permit the railroad companies specified to take and use, the property condemned, as specified in said judgment order.”
The petition alleges that the said bonds were filed and are still in force; that said bank executed and delivered to said clerk on May 26, 1890, the said certificate of deposit, which is as follows:
“$35,000. Chicago, III., May 26, 1890.
“The Merchants’ Loan and Trust Co., Established 1857.
“Chicago, Madison and Northern Railroad Co. has deposited in this bank $35,000, payable in current funds, to the order specified on the reverse hereof, and the return of this certificate properly endorsed.
E. B. Powers, Receiving Teller.”
Endorsed: “The within deposit is made under an order of the Superior Court of Cook county, Ill., in case of City of Chicago vs. Ligare, No. 123,780, and said sum of $35,000 is to be paid out, with interest at three per cent, upon the further order of the court to be hereafter made. This certificate is delivered to the clerk of said court for safe keeping, and a copy is given to said Ligare and said depositor.”
That said judgment, upon appeal by Ligare to the Supreme Court, was reversed without remanding the cause; that a writ of restitution was denied; that “said city, nor petitioner, nor any other person, is in possession of said premises or any part thereof under or by virtue of said judgment or proceedings in this court; that said city is-in possession of said premises, but such possession is held solely by virtue of a lease of said premises made by Ligare and running until May, 1896, or later.”
The judgment in the condemnation proceeding was reversed without a remanding order, upon the ground that a city has no power to condemn land for a street for the purpose of turning over the street to the exclusive use of railroad companies. (Ligare v. City of Chicago, 139 Ill. 46). The judgment of reversal was a final disposition of the case. Hence, the petition seeking to reach the fund in court was in the nature of a new proceeding, and should have made all the parties interested defendants. The clerk holding the certificate, and the bank holding the money, were mere trustees for the benefit of such person as the court should name in its order. The petitioner claimed to be the cestui que trust, who was entitled to receive and collect the certificate of deposit. The petition was in the nature of a bill to enforce a trust, and, therefore, the trustees and the persons, shown on the face of the petition to have an interest in the disposition of the trust estate, should have been made parties. It was not sufficient, that counsel for petitioner claimed to have authority to act for the city and the bank.
The petition, being thus a bill in the nature of a bill to enforce a trust, must be interpreted by the rules applicable to a proceeding in equity. One of the most familiar of these rules is, that he, who asks equity, must do equity. Another one of these rules, no less familiar, is, that, where equity gets jurisdiction for one purpose, it will retain it for all purposes. An application of these rules to the facts presented by this record will show, that it would be highly inequitable to grant the relief prayed for in this petition, without further allegations making a more specific offer to do equity. The petition ought either to allege, that the injury, authorized by the judgment to be done to appellant’s reversionary interest in the lots, has not been done, or to offer to undo such injury, if it has been inflicted, by restoring the property to its former condition. This will appear from an examination of the contents of the petition.
The petition sets out in full the condemnation judgment, as explanatory of the origin of the trust fund, or, in other words, as showing the object and purpose of the deposit of the $35,000.00. The judgment gives the city of Chicago the right to enter upon, take and use appellant’s lots for the purposes mentioned in the condemnation petition, and the ordinances set out in the condemnation proceeding, on condition of the payment to appellant and others of ,?35,000.00, or the deposit of the same in the bank, to be paid to appellant, or the persons legally entitled thereto, on the final decision or settlement of the condemnation suit, or to be returned to the city of Chicago, or party making said deposit, “if it shall be entitled thereto.” The right thus conferred upon the city was given to it, nothwithstanding the appeal of the appellant here, who was the defendant there, from' the judgment condemning his property.
What the purposes were, for which the city was to use appellant’s lots, will be seen by reference to the case of Ligare v. City of Chicago, supra. The lots are 100 feet deep, and lie south of Archer avenue which is 60 feet wide. The 100 feet, when condemned by the city, were to be added to Archer avenue, making that street 160 feet wide. The city was then to give to the present appellee, the Chicago, Madison and Northern Railway Company, and the Chicago and Alton Railroad Company, the right to lay down six tracks, in addition to one already there, upon the north 90 feet of said 160 feet, said north 90 feet including the north 30 feet of Ligare’s lots. A city street car company was to. remove its track from the old street, and run its line on the south 70 feet of appellant’s lots. The railroad companies were to be allowed to build a wall 12 feet high dividing the north 30 feet from the south 70 feet of said lots, and a sidewalk, when ordered by the city, along the south side of said wall. The city was also to condemn and fill up Ogden slip, a navigable water-way connected with the south branch of the Chicago river and lying east of said lots, thereby destroying the dock frontage of the lots upon said slip. Ogden slip was to be thus permanently filled with earth, at the cost, not of the city, but of the present appellee.
In addition to the facts thus appearing from the petition and ordinances in the condemnation proceeding, the judgment and order of possession therein entered show that the deposit of the §35,000.00 was made, not by the city, but by appellee, and that the bond for §40,000.00 to secure the payment of future compensation, which is required by section 14 of article 9 of the City and Village act in cases of lawful condemnation by cities and villages, was filed and executed, not by the city, but by the Illinois Central Railroad Company. Moreover, said order of possession directs, that the city of Chicago "may proceed to take and use, or permit the railroad companies specified, to take and use the property condemned, as specified in said judgment order.”
Prom this review, nothing can be more evident than that the condemnation proceeding, though instituted by the city, and the condemnation judgment though entered in favor of the city, viere really for the exclusive benefit of appellee and other railroad companies. The taking and using of appellant’s property for the purposes, and in the manner above stated, were really to be by appellee and said railroad companies, though the right so to take and use was secured in the name of the city, so far as it was secured by said judgment. Hence, the allegation, that neither appellee, nor the city is in possession of the lots under the judgment, but that the city is in possession under a lease made by Ligare, is not sufficiently definite. Whatever possession the city may have can only be for the benefit of appellee and the railroad companies, and is therefore, in effect, their possession, and not that of the city. The petition does not describe the lease fully enough. It is not stated that Ligare made any lease to the city. The allegation of the petition is entirely consistent with the theory, that appellee may have found a tenant of Ligare in possession, and may have purchased his leasehold interest, with a view of using the possession thereby acquired to hold the property in the event of a failure of the condemnation proceeding. That appellee and the other railroad companies own and control this lease was shown by a stipulation introduced in evidence by appellee in support of its petition, and which contains the following recital: “Whereas the parties, for whose benefit said lots 1 and 2 are sought to be taken, have acquired said lease.”
The allegation of the petition in regard to the lease is insufficient, even if it be true that the city, whose name in this instance is but a cover for appellee, is in possession under the lease. The question is, has the city or appellee, being in possession whether under the lease or otherwise, made such use of appellant’s lots as was. authorized by the judgment? Have railroad tracks been laid down upon the lots? Have a wall, twelve feet high, and a sidewalk on the south side thereof, been built upon-the lots? Has the slip been filled up with earth, thereby destroying the dockage privileges on the east side of the lots? Are appellee and the other railroad companies mentioned now using the lots for the operation of their roads? If these questions can be answered in the negative, then the petition should contain averments negativing the existence of such injury and such use. If the questions cannot be answered in the negative, then the petition should offer to restore the property to the condition it was in before the injury was iuflicted. Otherwise, the petition is asking equity without doing equity, or offering to do equity.
If the appellant’s property has been injured and changed in its character by the laying- of railroad tracks upon it, and by the erection of a wall and sidewalk upon it, and by the filling up of the water-way on which it fronts, and more especially if the appellee and. other railroad companies, who are in possession of it, are using it for railroad purposes by passing their cars over it and in other ways, then it would be most inequitable to allow appellee to take out of court the deposit of $35,000.00' without requiring it to undo the wrong done. The right to thus change the character of the property, and subject it to railroad uses, was conferred upon appellee, upon condition that it should make a deposit of $35,000.00 to be returned- to it, in the event of a reversal of the judgment, “if it shall be entitled thereto.” By the very terms of the creation of the trust, a court of equity, upon an application to enforce it, is empowered to examine into the circumstances to see whether the applicant is entitled to a restoration of the money. If the judgment of condemnation had been affirmed, appellant would have been forced to part with his property and take the $35,000.00. The judgment having been reversed, a court of equity ought to require compensation, for the injury done the property, to be paid out of the fund deposited. The fund was made use of as the means of obtaining permission to injure the property, and, therefore, it ought to be made use of in a court of equity as a means of restoring the property to snch condition, as it was in before it was thus injured. Otherwise, appellant’s property will have been damaged for an improvement, claimed to be public in its character, without just compensation. The power of a court of equity, in such a case as this, to determine the extent of the injury thus inflicted, and the amount of damages to be paid on account of such injury, is an incident to the jurisdiction which it has to enforce the trust. The granting of full relief is auxiliary to the main jurisdiction, and avoids a multiplicity of suits.
The lease referred to was introduced in evidence by appellee in support of its petition. It bears date March 8, 1886. By its terms Ligare, the appellant, leases to the Joliet Stone Company for ten years from May 1,1886, to April 30, 1896, said lots 1 and 2, and lots 3 and 4 directly south of them, “being a tract of land or dock property 200 feet square on Ogden slip,” with all the personal property on the premises, with the use of Ligare’s interest in the railroad in front of the tract, subject to the provisions of his agreement with the railroad company, and the nse of all the switches on the land, which were to be left there. The lease contains, among other covenants, an agreement that the lessee will not permit the premises to be used for an illegal purpose, or any other purpose calculated to impair the value of the surrounding property for present use, or otherwise. By the proceedings in the condemnation proceeding and by the stipulation above referred to, it is shown that appellee, and the other railroad companies, not only acquired said lease, but made some arrangement with the tenant, the Joliet Stone Company, which made it unnecessary to enter any judgment in the condemnation suit as to the rights and interests of the tenant. By said stipulation, made between the assignee of the Joliet Stone Company and Ligare, it was agreed, that one-half the rents under the lease should be suspended during the pendency of the appeal from the condemnation judgment: that, in case of an affirmance, the whole lease should be canceled; that, in case of a reversal, the lease should be revived as to the suspended rents, and should remain in force.
It is contended that, by this stipulation, appellant recognized the right of the parties, who acquired the lease, to the possession of the property, and that he is estopped from denying the validity of such possession. I do not understand, that appellant denies the right of possession under the lease, which gave the tenant the power to under-let the premises. During the pendency of the appeal from an unlawful judgment of condemnation which took one-half of his property away from him against his will, appellant was not obliged to surrender his interest in a valuable lease of his land, and in the rents accruing thereunder, by canceling the lease. Appellee did not choose to condemn the interest of the lessee, as well as of the landlord, in the premises, but chose rather to obtain the lessee’s interest without condemnation, and thereby itself become the lessee of the premises. Consequently, when the condemnation proceeding was instituted, appellee stood in the relation of tenant to appellant. Being tenant, it sought to condemn appellant’s reversionary interest in the premises. The uses, to which the appellee was authorized by the judgment to put the property sought to be condemned, were not such uses as were warranted by, or consistent with, the terms of the lease. Those uses had relation to the reversion; they changed the whole character of the propertjq and permanently affected the nature of the reversionary interest. Possession under the lease did not authorize the laying of railroad tracks, the building of walls and sidewalks, and the filling up with earth of a navigable water-way adjoining the land. Such injuries, as would arise from these acts, appellee was not justified in committing by the terms of the lease, but solely by the judgment of condemnation and by the deposit of the amount of such judgment. A landlord has a right to restrain his tenant from committing waste, and thereby impairing the value of the reversion. It has been held, that an injunction may be obtained against a lessee to prevent him from making material alterations in a dwelling house; as, by changing it into a shop or warehouse. Can there be any doubt, that appellant, as defendant to a bill in equity to enforce the execution of this trust, could file a cross-bill to enjoin such uses of the lots in questions as would amount to waste, and injure the value of the reversion? We think not. Equity, having jurisdiction to stop the waste, may award damages for waste committed. (1 Pomeroy’s Eq. Jur. sec. 237; 2 Story’s Eq. Jur. sec. 913; Douglas v. Wiggins, 1 Johns. Ch. 435). For these reasons, I am of the opinion, that appellee should be required to aver and show, that it had not injured, or was not using, the property in the manner stated, before it could be entitled to withdraw a fund deposited under a judgment condemning the very reversionary interest, which was affected by such injury or use. Appellant is not obliged to await the termination of the lease, and take back his property in the ruined condition produced by the acts above indicated, if there have been such acts.
It is further contended, that appellant’s remedy is by suit on the bond for $50,000.00. Section 14 of article 9 of the City and Village act (1 Starr & Cur. Stat. page 491,) was the statutory provision, under which appellee sought in the name of the city to condemn the property in question. That section does not require the execution and filing of any such bond, as the bond for $50,000.00 described in the judgment. It provides, that no appeal from 'the judgment of condemnation shall delay proceedings under the ordinance, if the city shall do two things, first, deposit, as directed by the court, the amount of the judgment and costs, and, second, file a bond in court to secure the payment of any future compensation, Which may at any time be finally awarded to the party appealing. Here, these two things were done in the manner already indicated. As to the bond for $40,000.00 to secure the payment of such future compensation, the allegation of the petition, that it is still in force, is contradicted by the balance of the petition. If the city had had any power to make such a condemnation as was attempted, a bond executed by the city to secure the future compensation would have been valid, as given in accordance with the requirements of the statute. But as the judgment here was held invalid for want of power in the court to render it, and was reversed without a remanding of the cause, no future compensation could be awarded in that proceeding, and, consequently, the bond could not be made to serve any purpose, and cannot be in force.
As to the bond for $50,000.00, which was also executed by the Illinois Central Railroad Company, and not by the city, there is no averment in the petition, nor anything to show, that appellant ever accepted it. The judgment directing it to be filed was reversed, and is of no effect. I see no reason why appellant can be compelled to rely upon it, unless he chooses to do so. It is not set out in the petition, and we have no means of knowing its precise terms. But if it was drawn in accordance with the directions contained in the judgment, it was conditioned that, in case it should finally be adjudged that the city of Chicago had no power to authorize the filling of said Ogden slip, said city would immediately thereupon proceed to remove and clear out, or cause to be removed and cleared out, all the filling placed there by the city, or “said railroad company,” and complete such clearing out within a reasonable time after such decision; that is, the city would restore said property to the condition it was then in, or cause it to be so restored. By the terms of the ordinance, the slip was to be filled up at the cost of appellee; and, properly so, because it was to be filled for appellee’s benefit. Hence, the city would undoubtedly expect appellee to clear out the slip. Appellant is thus asked to look to the obligation of the Illinois Central Railroad Company, that the city of Chicago will cause the slip to be cleared out by appellee. According to the copy of the order of reversal attached to the petition, it was adjudged by this court on October 31, 1891, that the city had no power to fill up the slip. The present petition was filed on June 10,1892. By referring appellant to a remedy upon the bond, it would appear that appellee had not cleared out the slip, or restored the property to its former condition, when the petition was filed. If such is the fact, then neither the city nor appellee proceeded to clear out the slip, or restore the property, immediately upon the. rendition of the decision referred to. Appellee thus confesses that the condition of the bond is broken, and that neither it nor the city has performed the obligation, to secure the performance of which the bond is alleged to have been given. A party cannot come into equity, and ask for relief, with the confession in his mouth of a violated obligation. The right to use the property for the purposes stated was- granted, upon. condition of the execution of the bonds, as well as of the deposit of the money. The bonds and the deposit all related to the same matter. By means of them, appellee secured the opportunity of obstructing and injuring appellant’s property. He is not bound to resort to the bond, but is entitled to look for relief to the deposit, when appellee asks for a restoration of the deposit. As appellee seeks to take the money out of court without making appellant whole, and insists that appellant be remitted to the tedious and uncertain remedy of a suit against the Illinois Central Railroad Company when such suit is made necessary by its own default, it is not coming into a court of equity with clean hands; it is asking the interposition of equity in its own behalf without itself doing equity.
I think that the judgment of the Appellate Court, and the decree or order of the Superior Court of Cook county, should be reversed, and the cause remanded to the latter court with directions to permit the petition or bill to be amended by making proper parties and otherwise, as herein indicated, and with further directions to proceed in accordance with the views herein expressed.