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Albert Schonbeck testified: "I have been in the real estate business in the city of Chicago for twenty-two years. I have examined the property along the line of the sewer in question and consider the sewer just as beneficial as if it had been laid according to the ordinance.
Q. "What effect has this sewer upon the property by the change of location?
A. "It would be a benefit to it,-more so than if it were laid in the original place, or three and one-half feet further north, because it shortens the length of the connecting pipe to the lot, or shortens the connection with the houses, and it would save that amount. From my experience with sewers I do not think they have any effect upon trees. The trees along the line of this proposed sewer seem to be in a healthy condition.”
Patrick F. Haynes testified: "I have been in the real estate business in the city of Chicago eighteen years, and have examined the property along the line of this proposed sewer. I think the sewer as built just as beneficial as if it had been built in accordance with the ordinance."
The evidence offered by appellees tended to show that the sewer as located affected somewhat the growth of trees along the line thereof, and that it had a tendency to drain, and thereby dry up, the lawns. The fact that the sewer is practically impervious to water and is located thirteen feet below the surface of the ground weakens very much the contention of appellees in this regard.
As said in the first Church case, (174 Ill. 366,) on page 368: “It is * * impracticable to require literal compliance with the requirements of an ordinance as to the location of an improvement, and substantial compliance therewith is all that is required."
In view of the foregoing evidence we hold that the appellant has established that the sewer as constructed conforms substantially with the requirements of the ordinance in the matter of location, and that the county court erred in refusing a judgment of sale of said real
estate to satisfy the fourth installment of said special assessment.
The judgment of the county court will therefore be reversed and the cause remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
Mr. JUSTICE MAGRUDER, dissenting.
THE PEOPLE ex rel. City of Pontiac
192 307 V.
100a 6 63 THE CENTRAL UNION TELEPHONE COMPANY.
199 6346 Opinion filed October 24, 1901.
192 307 1. PLEADING—one cannot plead and demur at same time. By reply- 202 6229 ing to plea after the overruling of demurrer the right to question 105a $150 the sufficiency of the plea is waived.
307 2. SAME-form of pleading in quo warranto. Under the statute the
212 6592 course of pleading in quo warranto is the same as in other actions.
3. SAME-respondent in quo warranto must prove tille. Ordinarily, in quo warranto the burden of proof is on the respondent to prove his title as pleaded, or so much of it as is traversed.
4. SAME—when replications to special pleas are demurrable. Where the pleas of the respondent in quo warranto set up the respondent's charter as a corporation by way of inducement, and conclude with a denial, under the absque hoc, of the usurpation charged in the information, replications thereto are demurrable which traverse the allegations of the inducement instead of the denial.
5. SAME_effect of filing quo warranto information against corporation in corporate name. The effect of filing an information in the nature of quo warranto against a corporation by its corporate name, to compel the corporation to disclose by what authority it exercises corporate privileges, is to admit the existence of the corporation.
6. CORPORATIONS-license to use streets becomes a contract after acceptance. The right of a telephone company to use the streets and alleys of a city under an ordinance is not a franchise but a license, which, however, becomes a contract, revocable only for cause, after the corporation has accepted the privileges and entered upon the use of the streets.
APPEAL from the Circuit Court of Livingston county; the Hon. G. W. PATTON, Judge, presiding.
A. C. BALL, State's Attorney, (W. C. GRAVES, of counsel,) for appellant.
LOUIS G. RICHARDSON, and WILLIAM B. MANN, for appellee.
Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:
This is an information in the nature of a quo warranto, begun in the circuit court of Livingston county by the People, on the relation of the city of Pontiac, against the Central Union Telephone Company. The information is by the State's attorney of Livingston county, for the People, and gives the court "to understand and be informed that the Central Union Telephone Company, a corporation, for the space of four months or more now last past, in the county aforesaid, unlawfully has held and still does hold, without any warrant or right whatever, the use of the streets and alleys of the city of Pontiac for the purpose of maintaining a system of telephones or telephone exchange in the said city of Pontiac; that the said Central Union Telephone Company, during all the time aforesaid, in the city aforesaid, upon said People has usurped, and still does usurp, the said use of the said streets and alleys of the city of Pontiac, to the damage and prejudice of the said People," etc., whereupon said State's attorney “prays the consideration of the court in the premises and due process of law against the said Central Union Telephone Company to make answer to the said People by what warrant it claims to exercise and use the streets and alleys of the said city of Pontiac, as aforesaid.” The respondent, the Central Union Telephone Company, filed six pleas. The relator filed a demurrer to each of them, which was sustained to
all except the sixth. The relator replied double to the sixth plea, filing four replications thereto. The respondent demurred to each of these replications and the court held them bad. The relator amended each of the four replications and the respondent moved to strike them from the files, which motion was sustained as to the second and fourth and overruled as to the first and third,to which ruling both parties excepted. The respondent then demurred to the first and third amended replications, which demurrers were sustained, and the relator having failed to plead over, judgment was entered for the respondent. The relator appeals.
The first error assigned on the record is, "the court erred in striking from the files the plaintiff's second and fourth amended replications to defendant's sixth plea.” The second and third question the decision of the court in overruling the demurrer to the sixth plea; the fourth and fifth, in sustaining the demurrer to the first and third replications; the sixth, in not carrying defendant's demurrer to the first and third amended replications back to the sixth plea and sustaining the same; and the seventh, in entering judgment in favor of the defendant on the sixth plea. The second amended replication is almost a literal copy of the first, and the fourth is exactly, in legal effect, like the third. They serve no other purpose than to further encumber an already unnecessarily voluminous record, and were properly stricken from the files. As counsel suggest, the court might have required the party to elect on which it would proceed and struck out the others, but it was not bound to follow that practice. Parks v. Holmes, 22 Ill. 522.
After the demurrer to the sixth plea was overruled the relator took leave and replied to it. The demurrer was thereby waived,-first, because no motion was made to carry the demurrer back to the plea; and second, because, by pleading over after demurrer, the right to question the sufficiency of the plea ceased. It is not per
missible to plead and demur at the same time. Culver v. Third Nat. Bank, 64 Ill. 528, and cases there cited.
The sixth plea set up, first, the incorporation, under the general Incorporation law of the State of Illinois, of the Central Telephone Company; second, an ordinance of the city of Pontiac granting it the right to use the "streets, sidewalks, alleys and public grounds of the city for the use and purpose then and there to erect, maintain and use all the necessary poles or posts, of wood or iron, or other substance, material and the necessary wires to successfully operate and use a system of telephones or a telephone exchange in the city of Pontiac;" third, the organization of the defendant, the Central Union Telephone Company, under the same laws of the State; fourth, that on the 29th day of June, 1883, the first named company granted, bargained, sold and conveyed to the latter "all its property, assets, licenses, contracts, concessions, and all documents, correspondence and papers; all property rights, legal or equitable, credits and rights of action; all telephone exchange wires, poles, insulators, switchboards, batteries, instruments and machines; all tools and articles of every description; all right, title and interest in any contract, license or privilege, or property of whatever description;" fifth, that the Central Telephone Company accepted the license under the ordinance first named, and that the defendant, upon the assignment and conveyance to it of the property, etc., of the Central Telephone Company, entered upon the use of the streets and alleys of the city of Pontiac, and from thence hitherto has continued to use them for the purpose of operating a telephone system, etc.; and sixth, that on the 7th day of April, 1899, the city of Pontiac adopted and approved an ordinance granting the right and privilege to the defendant to use certain streets and alleys of the city for the purpose of extending its telephone system in said city. This plea sets up other facts by way of inducement, and concludes: “Without this, that the