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22, 1906, amended by making the North Side Lumber and Timber Company a defendant.

A cross-petition was filed on April 12, 1906, by the Peabody Coal Company, alleging that it was the owner of the whole of said tract of land; that it was used as a coal distributing and storage yard and for other purposes requiring the use of railway terminal facilities; that said premises were especially adapted for said purposes and constituted a single, unbroken tract of land, and that all of said tract not included in the strip sought to be taken would be greatly and irreparably damaged and injured by the construction and operation of said road. On April 19, 1906, the North Side Lumber and Timber Company filed a cross-petition.

On June 1, 1906, the court entered an order directing the petitioner to file, on or before July 5, 1906, detailed plans of the structure of said elevated railroad that it proposed to erect over and across said tract of land, and thereafter, on June 8, 1906, upon the filing of said plans, each of the defendants except the John E. Burns Lumber Company filed in said court a motion to dismiss the petition on the ground that it appeared from the plans filed therein by petitioner that it proposed to construct its railroad over the right of way and tracks of the existing steam railroad located upon the property sought to be condemned, in such a manner as to leave clear head-room of less than twenty feet, contrary to the terms of the ordinance of the city of Chicago granting to petitioner the right to occupy the streets of the city, and in support of said motions filed the affidavit of one Frank J. Hibbs, which stated, among other things, that in March, 1902, the Chicago and Northwestern Railway Company constructed, with the consent of and by agreement with the Peabody Coal Company, tracks connecting the property of said coal company with the main line of said railroad, and that said tracks had been maintained and used by said railway company for the purpose of delivering coal and other merchandise for the benefit of said coal company and its tenants and lessees; that said tracks, at and prior to the time of the passage of said ordinance, were, and at all times since have been, used as a part of the right of way and track of a steam railroad; that from the plans and drawings filed by petitioner herein it appears that the proposed structure for which it seeks to acquire the right of way will cross a portion of the aforesaid tracks at a height that will not leave, when constructed, to exceed fifteen feet clear head-room between the lower chord of the girders of the superstructure and the surface of the rails upon said railroad now in use upon defendant's property. Attached to the affidavit is a copy of the ordinance mentioned aforesaid, and in further support of the motions were offered the drawings referred to by Hibbs in his affidavit. In opposition to the motions petitioner filed the counter-affidavit of Clarence A. Knight, which stated that the tracks of the Peabody Coal Company sought to be crossed were not a part of the right of way of the Chicago and Northwestern Railway Company, and that from the west line of the right of way of said company to and through the said coal yards the tracks were not owned by said railway company. Upon a hearing the motions were denied, and at the same time the court found, and counsel for petitioner admitted, that the lowest portion of the longitudinal girders of the said proposed structure at the point where it crossed the said railroad track on the property of said coal company was less than twenty feet from the surface of the ground, and when constructed would leave not to exceed fifteen feet clear head-room between the lower chord of the girders of said superstructure and the surface of the rails upon said railroad tracks.

During the trial a number of stipulations were filed by the petitioner, by one of which it stipulated that its railroad should be built substantially as provided by the ordinance passed by the city council of the city of Chicago on January 16, 1905. In another it stipulated that it would re-arrange the plan of its structure proposed to be erected on said premises in such a manner as to provide for an open space sixtyfive feet in length, running lengthwise beneath said structure and seventeen feet nine and one-half inches from the surface of the ground to the lowest point of the longitudinal girders extending over said sixty-five foot space.

At the close of all the evidence each of the defendants except the John E. Burns Lumber Company again moved the court to dismiss the petition on substantially the same grounds as urged by them in their former motions. The motions were denied, and the said defendants then separately moved the court that petitioner be required, as a condition precedent to granting it the right to condemn the said property or any part thereof, to agree to comply with the terms and conditions of the said ordinance by building the structure for its said road so as to give twenty feet clear space over the right of way and tracks of the steam railway on said premises, and that the further hearing of the case and the entry of the verdict and final judgment be postponed until petitioner made such agreement, which motions were also denied.

From the record it appears that the tract of land owned by the Peabody Coal Company through which petitioner is seeking to obtain a right of way is in the shape of a rightangled triangle, with its apex to the south. It is bounded on the west by Lincoln avenue, on the north by Grace street and on the east by the right of way of the Chicago and Northwestern Railway Company, the west line of the tract being the hypothenuse and the east line being the longer leg of the triangle. The entire tract contained about 300,000 square feet, the strip sought to be condemned about 16,700 square feet, the portion of the tract east of the proposed railroad about 180,000 square feet and the portion west about 100,000 square feet. A large part of said tract was used by the said coal company as a retail coal yard, which supplied a district surrounding it within a radius of about

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two miles. Parts of the remaining portion of the tract were leased to the Meacham & Wright Company and to the John E. Burns Lumber Company. The lease of the Burns Lumber Company, however, had been assigned to the North Side Lumber and Timber Company. Both leases were subject to termination, at the option of the coal company, at the end of any year. Sarah C. Turner was the trustee in a deed of trust made by the Peabody Coal Company to secure a loan. From the main line of the Chicago and Northwestern railway a track was built connecting with several tracks in the coal yard, one of which extended west almost to the line of Lincoln avenue and was crossed by the proposed line of said elevated road. Over this track, and others in the yard, coal and other freight were delivered by the Northwestern Railway Company from its road. About four blocks south of the coal yard the proposed line crosses the tracks and right of way of the Northwestern Railway Company.

A large number of witnesses testified. The jury viewed the premises and returned a verdict for $13,083 as compensation for the property taken and damages to the remainder. The North Side Lumber and Timber Company was awarded $827 and the other defendants $12,256 of this amount. After overruling the motions of defendants for a new trial and in arrest of judgment, and their objections to an entry of an order of the court authorizing petitioner to take possession of the property, or any part thereof, pending any appeal unless petitioner agreed to build its structure in such manner as to leave twenty feet of space above the track in question, the court entered judgments upon the verdict. A separate judgment was entered in favor of the North Side Lumber and Timber Company, and that company did not appeal. From the judgment as to the remaining defendants the Peabody Coal Company and the Meacham & Wright Company appeal to this court, and urge as grounds for reversal (1) the court erred in overruling the motions of defendants to dismiss the petition; (2) the court erred in passing on instructions; (3) the court erred in passing on objections to evidence offered.

HORACE KENT TENNEY, and ARTHUR W. UNDERWOOD, for appellants.

CLARENCE A. KNIGHT, and WILLIAM G. ADAMS, for appellee.

Mr. JUSTICE Scott delivered the opinion of the court:

Appellee was granted permission by the city of Chicago to occupy the streets with its structure by an ordinance which contained, among other provisions, the following: “No part of the girders on the superstructure shall be less than fourteen feet above the present established grades of streets and alleys, and wherever the said elevated structure crosses or passes over the right of way and tracks of all existing steam railroads the clear head-room between the lower chord of all of said girders and the surface of the rails on all of said railroads or their present or hereafter established grades and from out-to-out of their right of way shall not be less than twenty feet.” Shortly after the passage of the ordinance, and before the beginning of this proceeding, appellee filed in the office of the city clerk its acceptance of all the terms, provisions and conditions of the ordinance. The ordinance forbade to appellee, in passing over the right of way and tracks of existing steam railroads, the use of any space less than twenty feet above the upper surface of the rail of the steam railroad. No such prohibition is found in the Eminent Domain act. The ordinance, when accepted, became a limitation upon the right of appellee to exercise the power of eminent domain conferred by the statute. (Tudor v. Rapid Transit Railroad Co. 154 Ill. 129; Same v. Same, 164 id. 73.) Appellee could not, by the exercise of that power, after accepting that ordinance,

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