On Petition for Rehearing.
Per Curiam.Opinion of a majority of the court.
A petition is presented to ns for a rehearing in this case, and we have read the petition with the care which the importance of the questions involved requires, and have reexamined the grounds of the opinion of a majority of the court heretofore filed, in connection with the petition for a rehearing, and after a careful consideration of the same are of the opinion that the judgment of this court is correct, and that there are no probable grounds upon which to grant a rehearing. The attorney for the petitioner, the appellee herein, takes the broad ground, as we understand it, that the statute quoted in the original opinion of a majority of the court, under which the right to acquire the highway is claimed, gives it the absolute right to acquire the use of the entire road, to the exclusion of the public, by contract with the highway commissioners, or by condemnation, if such exclusive use is necessary for the proper enjoyment of the franchises of the appellee. As we said heretofore, we do not think such right was given or intended by the Legis’nture; that it only allowed a joint occupancy of the highway with the general public in such a manner as not to deprive the public of its reasonable use in common with the railroad. We are still firmly of that opinion. In P., Ft. W. & C. R. R. v. Reich, 101 Ill. 157, the words of the charter of such railroad in reference to the right of a railroad to occupy a public street, came under consideration, and it was there held that the words of its charter in prescribing its powers read: “ To construct their railroad upon or across any stream of water, watercourse, road, highway, railroad or canal which the route of its road shall intersect, but the corporation shall restore the stream or watercourse, road or highway thus intersected to its former state or in a sufficient manner not to impair its usefulness,” did not authorize an exclusive use of such stream, etc., by the railroad company, but only a joint use, and “could only be enjoyed in common with the use of the avenue by the public as an ordinary highway and without materially impairing its usefulness as such.” “ The commissioners of highways of the town of Lake had no title in this avenue and no authority whatever to barter or convey any interest therein,” says the court. The above statute gave the railroad company, the court further says {ibid. 172), “ express authority for laying tracks upon, as well as across streets or highways,” etc. The statute quoted in the original opinion herein is in all essential particulars the same as the one last quoted. It is true one phrase is inserted that contains a word not in the act last above quoted. That is, “ such a corporation shall restore the stream, watercourse, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in repair,” etc. The word unnecessarily is used; that was not in the former act; and then it reads: “ Hot unnecessarily to have impaired its usefulness,” etc. It is insisted by counsel for appellee that this qualifying word gives the railroad the right to acquire, by agreement or condemnation, the exclusive use of the highway, etc., if it is necessary for the purposes of the road. We do not concur in such an interpretation. It was no doubt thought by the Legislature that no canal, sti’eam, street, highway, etc., could be occupied without in some measure being injured or impaired by the crossing or occupation of a railroad, but that it might be crossed and occupied without materially impairing their usefulness for the original use by the public. Hence, no doubt, by the use of the word “unnecessarily ” it was intended to compel the railroad so using a “ public highway,” etc., to restore it to such a condition as not to impair in any degree its usefulness to the public, if it could be done, but if it could not, then as to such limited injury as was necessary the railroad would not be compelled, as the former act seemed to imply, to restore the “ highway, etc., in such a mariner as not to impair its usefulness ” in any degree. Any other interpretation would lead to most astonishing and sweeping results. It would give a railroad company, whenever it deemed it necessary, the right to condemn and occupy any canal, watercourse, highway or street in the entire State, to the absolute exclusion of the public from its former or public use. Can it be supposed that the Legislature ever intended to give to railroad corporations such sweeping powers as to take for their own use all the streets in the cities, all the roads and all the rivers, if it were even necessary for their use, and at the same time make them the judges? It is absurd to so contend. They are only allowed a joint use where such highways are not materially impaired for public use. As to the question of estoppel, we need only refer in support of our ruling to Railroad Co. v. City of Belleville, 122 Ill. 376, and P., Ft. & C. R. R. Co. v. Reich, 101 Ill. 157. A rehearing is denied.
Rehearing denied.
C. B. Smith, J. I still adhere to my dissenting opinion, and think the rehearing ought to be allowed, and in its support further cite Bissell v. The Michigan Southern and Northern Indiana Railroad Companies, 22 N. Y. 258, and the case of Parish v. Wheeler, 22 N. Y. 494. These cases are in harmony and fully support the views I before expressed and the authorities cited.