I cannot agree with this decision. Here, the railroad track is located partly on the south half of Fourteenth street and other land also belonging to Taylor Forge and Pipe Works. No part of it touches the north half of the street that belongs to the Greenlee Foundry Company. The Limits Industrial Railroad Co. v. AmericanSpiral Pipe Works, 321 Ill. 101, case turned exclusively on the power to condemn land. The statement quoted therefrom, "The terminal company could not have condemned the land either of the foundry company or the pipe works for a track from its railroad to the ten acres in question for the exclusive use of the owners of the tract, for such a track would have been a mere spur-track of the terminal company for a wholly private use," includes the assumption of a fact that is not present here. That assumption was that this track could only be used to serve the owner or owners of the land to which the switch-track led. Certainly in *Page 500 such a case the track, by the very facts stated in the quoted sentence is one for a private as distinguished from a public use.
This track was built by the defendant in accordance with plans and specifications furnished by the railroad company. It was supervised by the railroad's engineering department, and the plans had been approved by the Commerce Commission. That Commission and the city had consented that the track be laid. By its agreement the railroad was to connect the track and it was to become a part of the railroad.
It is not contended that the use of a street can be permanently granted for private purposes. The use must be for the public, and no corporation or individual can acquire an exclusive right to the use of a street, or any part thereof, for private purposes alone. (Chicago Dock and Canal Co. v. Garrity, 115 Ill. 155.) But that case contains a correct statement of the rules under which municipalities may authorize private persons to construct switch-tracks on public streets. It is: "But we have held that there may be a grant to private individuals of the right to lay tracks in the streets connecting with public railway tracks previously laid, and extending to the manufacturing establishments of those laying the tracks; but in such cases the tracks so laid become, in legal contemplation, to all intents and effects, tracks of the railway with which they are connected, and open to the public use and subject to the public control in all respects as other railway tracks open to public use. We have not regarded the circumstances that they were laid with private funds, and that they terminated opposite, or within convenient contiguity of, a private manufacturing establishment, as materially affecting them, and giving a private character to their use. All termini of tracks and switches are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this. If they are open to the public use indiscriminately, *Page 501 and under the public control to the extent that railroad tracks generally are, they are tracks for public use. It may be, in such cases, that it is expected, or even that it is intended, that such tracks will be used almost entirely by the manufacturing establishment, yet if there is no exclusion of an equal right of use by others, and this singleness of use is simply the result of location and convenience of access, it cannot affect the question." That same rule has been applied in Truesdale v. PeoriaGrape Sugar Co. 101 Ill. 561; Mills v. Parlin, 106 id. 60; McGann v. People, 194 id. 526; People v. Blocki, 203 id. 363; People v.Marshall Field Co. 266 id. 609; Van Oven v. Chicago, Burlingtonand Quincy Railroad Co. 317 id. 334; Alton Railroad Co. v.Commerce Com. 368 id. 584.
Here, the use of this track by the public was not prohibited. Can it be contended the railroad could not set a cut of cars on the switch temporarily, if its convenience or necessities required that to be done or that such cars had to be loaded only with merchandise belonging to defendants? It certainly could not.
This opinion utterly ignores point 2 of appellants' brief. That contention is that the validity of an ordinance which grants the use of a public street for a switch-track cannot be collaterally attacked by an adjacent land owner whose fee is not encroached upon. Such a proceeding to question that validity must be instituted by the Attorney General, State's Attorney or the city. Among the sixteen cases cited to support this is Doan v. LakeStreet Elevated Railroad Co. 165 Ill. 510, which was last cited with approval in Carstens v. City of Wood River, 344 Ill. 319, at p. 322. In the Doan case at page 521 we quoted with approval fromPatterson v. Chicago, Danville and Vincennes Railroad Co. 75 Ill. 588, as follows:
"The claim is, that, upon the principle of strict construction the company must be confined within the limits of the defined district. Without undertaking any discussion *Page 502 of this question, it is sufficient to say that the fee of streets is in the city, and it has the power to control and regulate their use, and any such excess of authority in the use of a street as is here claimed must be left to be redressed by the public authority, and equity should not, in such case, at the suit of a private individual, enjoin the operating of a railroad."
We then continued with reference to the Patterson case, "This case has been often cited with approval in later cases. Where the use of the street has not been legally authorized, as held inMcCartney v. Chicago and Evanston Railroad Co. 112 Ill. 611, Hunt v. Horse and Dummy Railway Co. 121 id. 638, Chicago, Burlingtonand Quincy Railway Co. v. City of Quincy, 136 id. 489, andMetropolitan City Railway v. City of Chicago, 96 id. 620, an information in chancery by the Attorney General or State's Attorney on behalf of the People, or, as in the last named case, a bill for injunction by the city, affords a proper and complete remedy. If, as contended, the abutting owner can also maintain a bill on the same ground, — that is, that the building of the road is without the valid consent of the city, — then the language in the Patterson case, `and any such excess of authority in the use of a street as is here claimed must be left to be redressed by the public authority,' must be overruled and the authorities above cited as to the remedy by the Attorney General or city qualified."
The illegal use of public property can only be complained of by the People. If a private individual attempts to maintain a suit to enjoin a breach of public trust, in the absence of statutory authority, he must show that he is specially injured thereby.Carstens v. City of Wood River, supra.
The rule is so well settled as to be almost elementary that a private person cannot sue for damages or for an injunction or to abate the encroachment because of an alleged improper use of a street or an obstruction therein, *Page 503 unless the injury he has sustained is special as distinguished from injuries sustained by the public at large. As a condition precedent thereto to an action by an abutting owner or a private person for damages or to restrain or abate an unlawful use or obstruction of a street, it must distinctly appear in a manner susceptible of proof that he has suffered special damages and in a manner different in kind and not merely in degree, from the general public. On the other hand, one is not specially injured as a matter of law, merely because his property abuts on an obstruction, as above stated, the view of the law is that it is not the extent but the nature of the injury sustained that determines the existence or non-existence of a special injury. However, the injury must be substantial in character although it need not be considerable in amount.
The Greenlee Foundry Company failed to prove such special damage. It had access to its plant over Thirteenth street from Cicero avenue, thence along the north side of its land to the railroad, or, it could come off Thirteenth street along Forty-seventh avenue which bounded its entire property on the west and then could turn east on Fourteenth street which bounded its entire property on the south. Fourteenth street is sixty-six feet wide; and the switch-track is laid only in a part of that street. The track lies south of the center line of Fourteenth street and does not encroach upon the foundry company's fee in the street. It cannot be presumed that the railroad would defy the public authorities and break the law by unduly obstructing Fourteenth street in switching operations or by leaving cars on that part of the track on Fourteenth street for more than the required length of time to get them delivered.
I do not think that either the decision in the condemnation suit, Limits Industrial Railroad Co. v. American Spiral PipeWorks, 321 Ill. 101, or the ejectment suit, Greenlee Foundry Co. v. Limits Industrial Railroad Co. 354 Ill. 11, can be broadened in their scope so as to empower this *Page 504 foundry company to maintain this mandatory injunction suit. To do so will require the reversal of many decisions. The Greenlee Foundry Company has its switch-track to its plant from the railroad. It is not harmed in any way by the track here in question. The district is wholly industrial and appellants, I believe, are unjustly deprived of their rights.
Mr. CHIEF JUSTICE MURPHY, also dissenting.