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an injunction would be granted to prevent a railway company from exceeding the powers granted in its charter. In Hall v. People, 57 I11. 307, this court said (p. 316): “No man can be compelled to part with his property without just compensation. This is a constitutional right that he cannot be deprived of by any statute. No corporation, public or private, can appropriate the property of any one to their own use without first tendering or paying the damages assessed under the forms of the law. The party ought not to be driven to his action against a corporation, responsible or irresponsible, for his damages. This would be to take his property without first making compensation, and would be a plain violation of a constitutional right.” In Commissioners of Highways v. Durham, 43 Ill. 86, it was held that it was proper to enjoin the attempted opening of a road before the damages to a land owner had been adjusted. Mr. Lewis, in his work on Eminent Domain, (sec. 631,) says that "it is now almost universally held that an entry upon private property under color of the eminent domain power will be enjoined until the right to make such entry has been perfected by a full compliance with the constitution and the laws.”
The railroad, and use of it by appellee, being an additional servitude upon the land used as a public street, the fee of which was in appellant, appellee must first proceed to condemn appellant's interest in the street for its own uses before it can lawfully appropriate it. This view is supported by sound reason and by abundant authority. 6 Thompson on Corporations, secs. 7772, 7773; Williams v. New York Central Railroad Co. 16 N. Y. 97; Henderson v. New York Central Railroad Co. 78 id. 423; Cox v. Louisville, New Albany and Chicago Railroad Co. 48 Ind. 178; Ford v. Chicago and Northwestern Railway Co. 14 Wis. 609.
Both parties refer to and comment upon Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, and other cases of similar character; but in that case it was pointed out that there was no distinction between surface and elevated street railways, and the roads there in question were regarded as street railways, constructed and operated for the public convenience in facilitating travel along such streets.
By his last amendment of his bill appellant alleges that appellee is the owner of lands abutting on this street by title derived through mesné conveyances from the same source from which appellant derived his title, ---that is, from the maker of the plat, by and upon which plat this street is laid off and platted; and the contention is made, that as both parties and their grantors bought their said respective lots with reference to this street, a contractual relation has been established between appellant and appellee, froin which an equitable estoppel arises against appellee in favor of appellant, which deprives the former of any power or right which it might otherwise have to lay said tracks in said street or to obstruct the same. We cannot agree to this view. It does not appear that appellee denies the existence of the street or the legal effect of the plat, but, admitting that the street was properly dedicated and exists as a public street, claims the right to construct and operate its road therein under authority of legislative acts of the city council and the legislature. The estoppel contended for would operate to prevent appellee from constructing its road simply because it was an abutting owner, but would not extend to companies not owning abutting property. We think no such distinction can be drawn. Appellant cites the following cases: Earll v. City of Chicago, 136 Ill. 277; Mason v. City of Chicago, 163 id. 351; Marsh v. Tillage of Fairbury, id. 401; Maywood Co. v. Village of Maywood, 118 id. 61; Zearing v. Raber, 74 id. 109; Field v. Barling, 149 id. 556; but they do not sustain the view contended for.
Independently, however, of this branch of the bill, as before pointed out, the bill stated a good cause of action, and the trial court erred in dismissing it for want of equity. The judgment of the Appellate Court affirming the decree, and the decree of the circuit court, will therefore be reversed, and the cause is remanded to the circuit court with directions to overrule the demurrer and to proceed with the cause.
Reversed and remanded.
JOHN S. FARNAM
DANIEL S. THOMPKINS et al.
Opinion filed February 14, 1898.
1. DEEDS-deeds will be so interpreted as to gire affect to the intention of the parties. Deeds will be so interpreted by the courts as to give effect to the intention of the parties thereto, if that can be done without contravening some established rule of law or public policy.
2. SAME-when recital as to purpose of deed should not be rejected for repugnancy. Where a quit-claim deed does not purport to convey a fee simple title, but merely “all interest” of the grantor, a recital therein that the deed was made to confirm the title to the grantee as heir of a party to whom the grantor's ancestor had conveyed the property, and to give effect to such ancestor's intention in 'making such conveyance, should not be rejected as repugnant to the words "all interest."
3. The court reviews the evidence in this case, and holds the trial court properly found that the complainants were the owners of an undivided one-half of the property sought to be partitioned, and that the defendant was the owner of an undivided one-half but not of the whole property, as claimed in his answer to the bill.
APPEAL from the Circuit Court of Bureau county; the Hon. DORRANCE DIBELL, Judge, presiding.
DUNHAM & FOSTER, for appellant.
RICHARD M. SKINNER, for appellees.
Mr. JUSTICE WILKIN delivered the opinion of the court:
This is a proceeding in chancery for partition of certain real estate, begun by appellees, against appellant and others, in the circuit court of Bureau county. The complainants claimed to be the owners of one-half thereof as tenants in common, conceding the defendant Farnam owned the other half, while he, by his answer, claimed to be the owner of the whole. A decree was rendered in accordance with the prayer of the bill, and the defendant Farnam appealed.
The bill alleges that on the 21st day of November, 1859, Martin Thompkins was the owner in fee of the premises in question, and on that date, together with his wife, Mary Thompkins, executed a trust deed thereon to secure the payment of certain sums of money; that on December 16, 1865, default having been made in the conditions of the trust deed, the premises were sold under the power of sale contained therein, and purchased by one Justus Stephens; that on February 26, 1867, Justus Stephens, and Lurena, his wife, for and in consideration of $500 paid by Martin Thompkins, deeded the premises to Mary Thompkins, wife of Martin, "for and during her natural life, with remainder over to the heirs of said Martin,” by which deed it was intended that the remainder “in said real estate and premises should be conveyed to the legal heirs of the said Martin Thompkins then living but since deceased, to-wit, to those persons who, at the date of the said deed, would have been the legal heirs of the said Martin Thompkins if he had then immediately departed this life; * ** that the same persons, exactly, who are now the legal heirs of the said Martin Thompkins, deceased, would, at the date of the said deed last above mentioned, have been the legal heirs if he had then, at the date of said deed, de. parted this life.” The bill then shows that Mary Thompkins died on the 230 day of March, 1879, and that her husband, Martin Thompkins, survived her until May 2, 1891, when he died. It also appears from the bill that at the date of the deed from Stephens and wife the prospective heirs of Martin Thompkins were the complain. ants in this bill, Daniel S. Thompkins, (son of William Thompkins, deceased,) Andrew J., Martin L. and John G. Thompkins, sons of John C. Thompkins, deceased, (being grandchildren of said Martin,) Elizabeth Farnam, (formerly Thompkins,) and Susan E. Lee, (formerly Thompkins,) daughters of the said Martin. It is further alleged that on the 8th day of December, 1888,- which was after the death of Mary Thompkins but during the lifetime of Martin Thompkins,-M. S. Templeton and others, the only heirs of Justus and Lurena Stephens, then deceased, by quit-claim deed conveyed all their interest in said premises to the defendant John S. Farnam, which deed contained the following recital: “It is hereby expressly declared that the purpose of this deed is to perfect the legal title of said lands in said John S. Farnam as purchaser from the heirs of Martin Thompkins, deceased, by releasing all claims and interest which said grantors may have as heirs of the aforesaid late Justus Stephens and Lurena Stephens, both deceased, who, by their deed of date February 28, 1867, conveyed said lands to Mary Thompkins for and during her natural life with remainder over to the heirs of Martin Thompkins, the husband of said Mary, the said Mary Thompkins having died prior to the death of her said husband, Martin Thompkins.” It is further alleged that at the time of the making of said deed the said Farnam had purchased no interest in the said premises from the heirs of Martin Thompkins, except the interest of the said Susan E. Lee and her husband; also, that on the 19th day of March, 1894, which was after the death of the said Martin Thompkins, the same heirs of Justus and Lurena Stephens conveyed, by quit-claim deed, to the complainants in the bill, who were the said grandchildren of Martin Thompkins, one undivided half part of said premises, which deed contained the following recital: "Meaning and intending hereby to convey the one equal undivided fourth part of said real estate above described to the said Daniel S. Thompkins, the one equal undivided fourth part thereof to the said Martin L. Thompkins, Andrew J. Thompkins and John G. Thomp