Appeal from the Circuit Court of Cook county; the Hon. JOHN J.
LUPE, Judge, presiding. Judgment reversed.
PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment of the Circuit Court of Cook County against the City of Chicago assessing damages in the sum of $1.00 and costs.
The judgment was entered in a consolidated action for trespass and forcible detainer brought by the Elmhurst National Bank against the City of Chicago and certain public utilities, which were afterward dismissed, leaving the City of Chicago as the sole defendant. The action is based on an alleged trespass on the part of the city in maintaining water and sewer pipes beneath the surface of two streets, the fee to which is in the Elmhurst National Bank, and over which the City of Chicago has an easement. An answer was filed by the city and the bank moved for judgment on the pleadings. The court on June 26, 1957 entered an order finding the defendant City of Chicago guilty of trespass and ordering the cause set for hearing for assessment of damages. Hearing was had, evidence was heard, and on January 20, 1958 the court entered the judgment for $1.00 and costs in favor of the plaintiff and against the City of Chicago, from which judgment this appeal is taken.
There is only one issue before us, and that is as to whether the city under a declaratory judgment entered in 1955, which provided that the surface of the streets involved herein had become public highways over which the city has an easement, gave the right to the city to maintain sewer and water pipes in the subsurface of such streets. The declaratory judgment was entered in an action brought by the plaintiff against the City of Chicago. In that judgment the court found that the plaintiff owned certain described real estate in the City of Chicago; that such property was crossed by two streets, 45th Street and Archer Avenue; and that the city had by prescription acquired an easement for use of the streets as public highways. The decree further stated:
"Accordingly the rights of the parties are hereby declared to be as follows:
"A. By virtue of the use of said streets by the general public for more than 15 years the surface of said streets have become and are public highways according to the statutes in such case made and provided, and the defendant as trustee for the public has an easement over those streets for use as a public highway until vacated according to law.
"B. Subject only to the rights of the defendant as declared in Paragraph A, the plaintiff is the owner of the real estate above described in fee simple and has the right to put it to any lawful use and to build and improve the same above and below the surface without any interference by the defendant or any person whatsoever except as such interferences may lawfully be had pursuant to any valid statutes of the State of Illinois or ordinance of the City of Chicago."
Both parties are in substantial agreement that this decree is res judicata and binding upon both parties with respect to their rights with reference to the real estate and the easement over the streets herein involved.
It is well established law that where an owner of property abutting a street is the owner of the fee to the street and the municipality has only an easement over the property for use as a street the owner has the right to make any reasonable use of the land, including the subsurface, which is not inconsistent with the easement and does not interfere with the paramount rights of the public. 10 I.L.P. Cities, Villages, etc., sec. 1258. In City of Dixon v. Sinow & Weinman, 350 Ill. 634, the court said:
"The easement for a street includes such use of the land at or beneath the surface as will make the easement effective. In the case of a street, where the fee remains in the adjacent land owner, the public authorities may change the grade, build sewers, drains and culverts, lay water pipes and make, or cause to be made, various other improvements; and the owner of the fee has no right to interfere with the use of the street for public purposes. (Town of Palatine v. Kreuger, 121 Ill. 72; City of Quincy v. Bull, 106 id. 337.) The owner of the land under a street, however, may make any reasonable use of his land that is not inconsistent with the proper enjoyment of the easement by the public. (Tacoma Safety Deposit Co. v. City of Chicago, 247 Ill. 192; Sears v. City of Chicago, 247 id. 204; Davis v. City of Chicago, 333 id. 422.)"
See 25 Am. Jur. Highways, sec. 166; City of Quincy v. Bull, 106 Ill. 337; Horn v. City of Chicago, 403 Ill. 549; City of Elmhurst v. Buettgen, 394 Ill. 248; and also Peoples Gas Light and Coke Co. v. Chicago, 413 Ill. 457, in which the court cites with approval Sears v. Crocker, 184 Mass. 586, where it was held that the construction and operation of a subway beneath the surface of a public street was a reasonable use of the street and did not impose an additional servitude upon the lands constituting the street, the fee to which was in the owners of abutting properties. See also People ex rel. Mather v. Marshall Field & Co., 266 Ill. 609. The plaintiff does not question this rule of law but insists it is not applicable to the instant case since by the declaratory judgment the rights of the city were limited to the surface of the street. The city, on the other hand, argues that under the decree the city has an easement together with the right to use the subsurface for the purpose of laying sewer and water pipes.
In order to determine that question it is necessary to construe the decree. In the decree the court finds that by reason of the use of the streets by the general public for fifteen years the surface of the streets has become a public highway and that the City of Chicago has "an easement over those streets for use as a public highway." We must assume that the court when it entered the decree knew the law with respect to the necessary concomitants which legally flow from the establishment of a public easement in a street when the fee to the street is in the abutting owner. In City of Elmhurst v. Buettgen, supra, the word "street" is said to be a generic term and includes all urban ways which are generally used for ordinary purposes of travel, citing Carlin v. City of Chicago, 262 Ill. 564. Plaintiff contends that the court's finding in the decree that the "surface of the said streets have become and are public highways" was a finding that a restricted easement exists in the city. In order to resolve the correctness of such contention it becomes necessary to determine the meaning which the courts have given the word "surface."
In City of Salisbury to Use of Rafter v. Schooler, 331 Mo. 291, 53 S.W.2d 267, the court says:
"In determining the meaning of a word we must always keep in mind the subject-matter under discussion. When lawyers speak of a `case' it is usually, though not always, with reference to a lawsuit. When the brewers of old spoke of a `case,' the word had an entirely different meaning. So in ascertaining the meaning of the word ...