delivered the opimton of the Court.
Twenty-second street in this city is laid out upon a section line, and is the most important east and west thoroughfare between 12th and 31st streets, a distance of two miles. From the evidence in this case, it substantially appears that upon 22d street, from Grove street to the east end of the bridge over the south branch of the Chicago river, a distance of 300 feet, the Chicago City Railway Company in 1887 placed a double track. “ That on or about the 4th of April, 1895, and for several years prior thereto, said City railway company operated only one car on 22d street, from State street west to a point between Canal and Grove streets; and operated the said car therein only at infrequent and irregular intervals, and did not operate any car upon said east approach to said bridge; that the same was totally unused for the operation of cars; ” that after the passage of the ordinance giving to the Towns company a right to operate its cars on 22d street east of the Chicago river, over tracks not owned by it, upon terms to be agreed upon between it and the companies owning such tracks, said Towns company endeavored to come to some understanding with appellee for the use of such tracks from Grove street to the Chicago river, but the Chicago City Railway Company owning the said tracks refused to make any such arrangement. The contention of appellants that the City railway company is by its conduct, and especially by its suffering appellants to expend $2,000 in the repair of the bridge and approaches to the east end of the bridge over the Chicago river, estopped to deny the existence of an arrangement for the use of the 300 feet of track extending west from Grove street, we do not think is sustained by the evidence.
The general solicitor of a corporation is not presumed to have authority to make agreements for it, save in the matters belonging to his department, of which leasing or selling its property is not ordinarily a part.
It also appears that in April, 1895, appellants proceeded to run a car onto the aforesaid tracks of appellee on 22d street between Grove street and the Chicago river; that their intention so to do was generally known and was resisted by appellee. What followed the attempt to use such tracks is told in an affidavit made by John P. Hart, a bridge foreman and inspector of bridges in the employ of the city of Chicago. The affiant states:
“ That about 10 o’clock on the morning of April 4,1895, he was working in the neighborhood of said 22d street bridge, and was attracted thereto by a great noise and riot in the streets; that he immediately hastened to the east end of said bridge, and there saw a car of the General railway company lying upon its side, with ropes and grappling hooks attached thereto, which were also attached to a wrecking wagon of the City railway company; and affiant saw an immense crowd of men surrounding said car armed with sledge hammers, axes, crow-bars, pick-axes and other instruments of destruction, and engaged in smashing up and destroying the car, which they continued until it was completely destroyed; that they were under the command of a large man and acting under his orders in the work of destroying the car, and worked with great energy and rapidity, so that the entire destruction of the car was accomplished in less than ten minutes after the affiant reached the spot.
Affiant saw L. E. McGann, president of the General company, standing by and surrounded by a large number of citizens, who expressed great indignation at the acts of violence and destruction, and offered to interfere on behalf of the General company and drive the force of men who were destroying its car away, and throw them into the river and teach them not to take the law into their own hands; but said McGann most strenuously exercised himself to repress the citizens who witnessed the said acts of destruction from interfering to stop the same; he used the most strenuous efforts to keep the peace, and but for his efforts to keep the peace the destructive acts of the men who were destroying the car must have resulted in bloodshed.”
Appellee alleges in its answer “ that it has the lawful right to keep possession of the tracks and prevent the use thereof by complainants by the use of such force as may be necessary to accomplish that end.”
The constitution of this State provides that “Mo * * * law * * * making any irrevocable grant of special. privileges or immunities shall be passed; ” and that “railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways. and shall be free to all persons for the transportation of their persons and property thereon, under súch regulations as may be prescribed by law.” (Art. 11, Secs. 2, 4, 12.)
The ordinance of 1887, by which appellee acquired its right to lay down and operate its street railroad in the portion of 22d street in question, is a law within the meaning of the constitution. Mason v. Shawneetown, 77 Ill. 533; City of Chicago v. McCoy, 136 Ill. 344, 351; Hayes v. Mich. C. R. R., 111 U. S. 237, 288.
If the time of the court permitted, it would be interesting to enter upon a consideration of the many questions discussed by counsel. It may be conceded that public streets are held in trust by the city for the use of the public, and that as streets they can not be lawfully given or contracted away for mere private use; also that it is the case that the right of appellee to lay tracks in and thereon run cars through the streets of the city, was given and exists solely because of appellee’s undertaking and duty to serve the public; and that it can not maintain its tracks for all or any portion of a public street for no other purpose than to hold a right to the street, or for the object of keeping the public, either through another company, or in another • way, from using the street in a manner that shall serve the public convenience. It is the duty of appellee to use, for the benefit of the public, all the rights, granted to it to lay tracks in the public streets, and to afford the public all reasonable and proper facilities in the way of travel over each and every part of its tracks; to do otherwise, to stand in this regard as a hindrance to the accommodation of the public, is a gross perversion of the privileges accorded by the municipal authorities to appellee.
But it does not follow that if appellee has done this, or if it has taken the law into its own hands, and with a great' force of men by unseemly violence and riot in the public streets, to the annoyance and terror of peaceable citizens, broken and destroyed the property of appellants, that thereby appellants have acquired a right to make use of the rails of appellee in any portion of 22d street.
We are upon this appeal concerned, not so much with wrongs of which appellee may have been guilty, as with the question of the rights possessed by appellants.
The right given to the Towns company to operate its cars over the tracks of appellee, is upon such terms and conditions by lease or contract as may be agreed upon between the companies owning said tracks or otherwise.
The word “ otherwise ” does not extend to appellants the right to use these tracks in the absence of either lease, contract, invitation, acquiescence, or estoppel, and in opposition to the will of those by whom the tracks are owned.
The right, in consideration of services rendered the public, to lay tracks in a public street and to operate cars thereon, is a valuable property, and is therefore a property right. How lasting it may be, how it may be regulated or revoked, or taken away, is another matter.
Being property held under certain conditions, it may be forfeited, but it can not, either in whole or in part, be, by the mere will of a legislative body, taken from its owners, either for public or private use. If it is to be taken for public use, its owners are entitled to just compensation, and that compensation, it would seem, must be ascertained by a jury. Peoria, Pekin & Jacksonville R. R. Co. v. The Peoria & Springfield R. R. Co., 66 Ill. 174; Central City Horse Ry. Co. v. The Fort Clark Ry. Co., 81 Ill. 523, Chidago, Rock Island & Pacific R. Co. v. Town of Lake, 71 Ill. 333; Cincinnati, LaFayette & Chicago Ry. Co. v. Danville & Vincennes Ry. Co., 75 Ill. 113; Metropolitan City Ry. Co. v. Chicago West Division Ry. Co., 87 Ill. 317; Chicago & Northwestern Ry. Co. v. Chicago & Evanston Ry. Co., 112 Ill. 589.
The decree of the Circuit Court dismissing the bill is therefore affirmed.