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acquire the right to use any space for its superstructure over the tracks and right of way of a steam railroad which was less than twenty feet above the surface of the rail.
The steam railroad track on the premises of the appellant coal company, and which appellee's structure will cross, is a private switch track owned by the coal company and located upon its ground. The switch track connects with the main line of the Chicago and Northwestern Railway Company, but that company has no right to use the track, or the ground over which it passes, except by virtue of an existing license from the coal company, which, so far as appears from the evidence, may be revoked by the licensor at any time, and it is urged by appellee that for this reason the track in question does not come within the language above quoted from the ordinance, because, as it is said, the word "of," where it precedes the words “all existing steam railroads,” means “in the relation of ownership or possession,” and that the right of way and tracks referred to therefore are only those owned by "existing steam railroads," and that as the switch track and the ground upon which it rests are not owned by a “railroad” they are not covered by the ordinance. The term used in the ordinance is not "of railroad companies” or merely “of railroads,” but is of "all existing steam rạilroads,” and was evidently intended only to identify the right of way and tracks mentioned in the ordinance, by indicating the character of the road of which they formed a part. We think the word “of," as there used, was not intended to denote ownership. The principal purpose of the ordinance in providing for this space was, no doubt, to insure the safety of those traveling upon and operating trains on the steam railroads, and the end to be attained by the ordinance is just as important in the case of a private switch track over which trains pass, as in the case of a switch track which, with the underlying right of way, is owned by the railroad company engaged in running trains thereon. It is clear that the ordinance includes all tracks and rights of way over which the ordinary cars or trains used in operating a steam railroad are propelled for the purpose of transporting freight or passengers.
The title to the tracks in the coal yard and to the ground over which they pass are in the same owner, and the boundaries of the strip used for railroad purposes, or which might rightfully be used by the company. or person running trains over this switch, have not been fixed. It is urged that the quoted provision of the ordinance is not applicable because there is here no “right of way” in the ordinary meaning of that term as used in condemnation proceedings. We think the term in the ordinance does not have such a restricted significance. It means the way occupied and used for the track and the operation of trains. Its width in the present case must be determined by necessity, and is no greater than the space needed for the safe and convenient operation of trains over this track.
It is then urged that no one but the Northwestern Railway Company should be permitted to raise this question. That company has a mere license to use the tracks, which is of little or no value, while to the coal company the right to use the tracks for moving freight thereon in railroad cars is of great value. We think this objection may be made by any party having a property interest in the track or right of way which the elevated railroad is to cross.
In pursuance of an order of the circuit court appellee filed detailed plans and drawings showing the height, width and method of construction of the elevated railroad structure which it proposed to erect upon the coal company's property, and from which it appeared that twenty feet of space would not intervene between the surface of the switch tracks and the lower portion of appellee's superstructure. Appellants thereupon entered a motion to dismiss the petition, for the reason that the plans did not provide the necessary space above the rails of the switch track. Appellee insists, upon the authority of Ward v. Minnesota and Northwestern Railroad Co. 119 Ill. 287, that the coal company having theretofore filed a cross-petition thereby waived its right to move to dismiss the petition, and that for this reason the motion was properly denied. In that case appellants sought a reversal for the reason that there was no proof that the petitioner was a corporation, and it was held that this question could not be raised after the filing of the cross-petition. It was there said that by filing the crosspetition "it admits petitioner has the right to exercise the right of eminent domain." This statement was made with reference to the contention that the petitioner was not a corporation. That was a preliminary question, which should have been presented to the court prior to the filing of the cross-petition. The cross-petition in this case was filed before the detailed statement of the plans was filed. The crosspetitioner was not at that time advised, by anything appearing of record, that appellee proposed to proceed in any manner other than that contemplated by the ordinance. The motion was promptly made upon the filing of the documents which showed the purpose of appellee, and was therefore in apt time. The Meacham & Wright Company filed no crosspetition, and for this reason appellee's objection does not apply to that company's motion to dismiss.
It is unnecessary to consider other errors assigned.
The judgment from which this appeal was prosecuted will be reversed and the cause will be remanded. The judgment relating to the property of the North Side Lumber and Timber Company will not be disturbed.
Reversed and remanded. Mr. JUSTICE CARTER dissenting.
Subsequently, on consideration of the petition for rehearing in the above cause, the following additional opinion was announced orally by Mr. JUSTICE VICKERS:
The petition for rehearing in this case will be stricken from the files because it is in violation of the rules of this
court, in that the petitioner has elaborately re-argued the questions involved which have been argued in the original briefs and are disposed of in the opinion of the court.
It is to be regretted that attorneys, in the preparation of petitions for rehearing, disregard the rule of this court which forbids any argument in a petition for rehearing. The rule is clear and explicit and no one need fail to understand it. It is published on page 18 of volume 204 of the Supreme Court Reports, and is as follows:
“Application for a rehearing in any case shall be made by petition to the court, signed by counsel, stating concisely the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the original abstract and brief relied upon. In no case will any argument be permitted in support of such petition. This rule will be strictly enforced, and any petition in violation thereof will be stricken from the files."
This rule is a salutary one and tends to promote the fair and orderly dispatch of the business of the court. One reason upon which the rule rests is, that the party against whom the petition is filed has no opportunity to reply to any argument that may be contained in the petition unless a rehearing is granted. To permit one party to make an argument to which the other has no opportunity to reply would be manifestly unfair to the successful party. Each party is afforded ample opportunity to argue the case before it reaches the rehearing docket. The rule is intended to compel parties to develop all the points and arguments before the case is submitted, and prevent them from holding in reserve some new point or argument to be brought forward for the first time in the petition for rehearing, in case they are beaten. The rule provides that the penalty for its violation is that the petition shall be "stricken from the files.” In this case the party whose petition is stricken has tendered another petition for rehearing and asked leave to file it. This motion will be denied. This application is presumably made in anticipation that the first petition would be stricken. If the petitioner had complied with the rules in his first petition no occasion would have arisen for filing another. To permit a party who has filed a petition in violation of the rules to file another would, in effect, nullify the rule itself. If a party may file a second petition for rehearing after a former one is stricken from the files because in violation of the rules, the only penalty suffered is the loss of the labor and expense in the preparation of the second petition. The spirit of the rule is, that when a party violates it his petition shall be stricken from the files and his right to a rehearing is thereby lost. We cannot entertain a motion to file a second petition for rehearing where the first has been stricken because in violation of the rules of this court.
The petition for rehearing will be stricken from the files and leave to file the second will be denied. The remanding order in this case will be modified.
FRANK E. CROCKER et al.
Opinion filed October 23, 1907—Rehearing denied Dec. 6, 1907.
1. Wils—a devise construed as passing a base or determinable fee. A devise to the three sons of the testatrix, of a certain lot, and in case of the death of either of them without child or children him surviving" then to the other sons in equal undivided parts, passes a base or determinable fee, and upon the death of one of such sons, at any time, without leaving child or children, his fee terminates and the devise over takes effect. (Fifer v. Allen, 228 III. 507, followed.)
2. SAME—what shows that testatrix did not contemplate death of devisce during her lifetime. The fact that the testatrix bequeaths certain property to one of her sons absolutely, without making any
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