delivered the opinion of the court:
Water street, in the city of Chester, being admitted to be a public street therein, it is a presumption of law that the fee of the street is in the city, and ejectment may be resorted to as a proper remedy to recover the same from one who encroaches thereon. The title of the street being in the city for the use of the public, it may not grant the use of that street inconsistent with the rights of the public therein.
At the time the ordinance in question was adopted, paragraph 90 of section 1 of article 5 of chapter 24 of the Revised Statutes was as follows: “The city council or board of trustees shall have no power to grant the use of, or the right to lay down any railroad tracks in, any street of the city to any steam or horse railroad company except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.” No right existed in the city council to grant the use of the street for the purpose of laying down railroad tracks by this railroad company except upon the presentation of a petition as provided for by the foregoing paragraph. It was held in Byrne v. Chicago General Railway Co. 169 Ill. 75 (on p. 85): “Where, as here, the constitution and general statutes of the State make the consent of the municipal authorities a condition precedent to the exercise of the right to construct and operate a railroad in the streets of the city, such authorities necessarily had the power to prescribe the conditions upon which they will grant their consent. They may impose any conditions not illegal and not forbidden by statute.”
Inasmuch as the city council can only act on the petition of the owners of land fronting on the street, it can not create conditions to the prejudice of such land owners to a broader extent than authorized by the petition- itself, and as the basis of the action by the city council is the petition of the property owners fronting on the street, such property owners may, with reference to the time the street is to be used, impose such terms by their petition as in their judgment will best subserve their and the public interests, and may limit the time that the right granted shall continue, and such limitation will be binding on the city council.
In McCartney v. Chicago and Evanston Railroad Co. 112 Ill. 611, where an act of the legislature of 1865 confirmed an ordinance of the city of Chicago granting to a railway company chartered by special act the right to lay a track on and over certain streets of the city for passenger cars only, and the city subsequently became incorporated under the general act containing the provision of section 90 as hereinbefore cited, and the railroad company subsequently desired consent to use the tracks for street cars also, and urged that the consent required by the city council is only as to the laying down, of tracks and not as to the use of tracks which had been constructed, and that in case of a railroad track once rightfully laid there is no restriction upon the city as to the granting any use of it, with reference to that proposition the court held (p. 638): “This we regard a too strict interpretation of the provision in question. Where a railroad company lays its tracks in a street, having but the right to construct and maintain a track for passenger cars only, we think that under this provision of the statute the city has no power afterwards to grant the use of the track for the operation of freight cars upon it, except upon petition of property owners upon the street, as named in the statute. The granting of the use of freight cars upon a track which was one for passenger cars only, would, we consider, within the intendment of this statute provision, be tantamount to granting the right to lay down a track for freight cars, and so come within the provision. But if the grant of this use for freight cars be unauthorized, it is objected that the complainants in this case have no right to any relief as to the use of freight cars in Hawthorne avenue; that the city has the exclusive control of the streets and represents the public in all matters concerning them, and that no complaint can be made other than by the city, or by the abutting property owners whose consent should have been obtained. Where this required consent has not been obtained the city is absolutely without power to grant the license, and the exercise of it would be wholly without warrant, and unlawful.”
In People ex rel. v. Chicago West Division Railway Co. 118 Ill. 113, where certain conditions were sought to be inserted in the petition of property owners, this court said (p. 120): “It is true that the property owners might have inserted such conditions in their assent as they thought proper, and the common council mig'ht have been powerless to grant the railway company permission to occupy the streets except upon the conditions specified by the property owners in their consent.” To the same effect are Chicago, Danville and Vincennes Railroad Co. v. City of Chicago, 121 Ill. 176, and Hunt v. Chicago Horse and Dummy Railway Co. 121 id. 638.
The right granted by a city council to a railroad company to lay its tracks in a street and operate its cars thereon is not a franchise but a property right merely contractual, and subject to the same conditions, restrictions and limitations as any other property owned by other persons. (City of Belleville v. Citizens’ Horse Railway Co. 152 Ill. 171; Byrne v. Chicago Railway Co. supra.) And such contract rig’hts, so far as they affect the public, are to be strictly construed in favor of the public. The city council having no power to permit the use of its streets by a railroad corporation without the necessary petition, as required by paragraph 90 heretofore cited, and a right to a limitation existing with reference to the property owners by incorporating in their petition a limitation of the extent to which the city council should go in conferring' such power on the railroad corporation, and the power conferred by the city council being a mere contractual right, to be strictly construed so far as it affects the public, it must necessarily be construed as not going beyond the limits fixed by the petition of the abutting property owners. The petition in this case asked that the right be granted to use the street for a period of twenty years, and when the city council made its grant by ordinance, which was accepted by the railroad company, the council was powerless to make the grant for a longer period than twenty years, and on no principle of construction can it be held that the railroad company, by reason of any expenditure of money thereon or by procuring leases of additional property, could place itself in a position to assert a claim that abutting property owners were estopped from asserting their rights in strict accordance with the petition which originally conferred the power on the city council, and under which, only, the railroad corporation took its rights. The railroad corporation was bound to know the law—that the power of the city council was dependent on the presentation of the petition; and the petition itself limiting the time for which the street should be granted to the. railroad company, the latter is presumed to have had full notice of all that the petition contained.
It follows, therefore, that the circuit court erred in refusing to hold propositions asked by the plaintiff and in holding propositions asked by the defendant. The plaintiff was entitled to recover on the facts appearing on this record.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.