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These were all injuries to property rights. The rules are illustrated by the case of Freiberg v. South Side Elevated Railroad Co. 221 Ill. 508, a case much relied upon in argument to sustain the claim that damages may be recovered where the owner of the property has no right to the continuance of the existing condition or even where the use of the property is unlawful. In that case the passenger station adjoined the building of the defendant used as a saloon, restaurant and dance hall, where local trains stopped. The purpose of the condemnation was to move the station from its existing location to the opposite side of the street and to erect a third track for express service, on which the trains would run at a maximum speed of forty miles per hour and would not stop at the premises. Undoubtedly the removal of the station would affect the market value of the property, but it was held that evidence of depreciation was incompetent because the railroad company was under no obligation to continue the Twenty-second street station at that place and had the right to operate express trains at the rate of forty miles per hour without stopping there. There was no evidence that the value of the property was any greater on account of the fact that the saloon and dance hall had been conducted in an unlawful manner, but it was held that the company had no right to take the property for a less price than its market value and for that purpose to go into the manner in which the business had been conducted. That case is in entire harmony with the Rigney case in holding that there must be an interference with some right which the owner of the property has in connection with his property. It has happened that a right of that character has been connected with the ownership or use of a switch or switch track connection affecting the value of property. In Chicago, Peoria and St. Louis Railway Co. v. Wolf, 137 Ill. 360, the petitioner sought to condemn for right of way a strip of land adjoining the right of way of the Toledo, St. Louis and Kansas City railroad. On

one of the tracts of land a part of which was sought to be taken was situated a coal shaft, with a building, engine house and appliances for mining, raising and shipping coal, and the coal company had a tramway running from its coal shaft to the coal chutes of the existing railroad company, which was absolutely necessary to the operation of the mine and the shipment of coal. The taking of the strip and construction of a railway thereon would make it necessary to raise the tramway eight feet, or take it down and erect another, and it was held that the evidence of the cost of raising the tramway of the defendant or constructing a new one was proper. In Hartshorn v. Illinois Valley Railway Co. 216 Ill. 392, there was evidence that the land was adapted for manufacturing purposes, and if devoted to that use, evidence as to securing proper freight accommodation and transportation for employees was necessary to an intelligent estimate of the damages. In Chicago, Santa Fe and California Railway Co. v. Ward, 128 Ill. 349, it was held proper to take account of the appurtenances to the lot which the proceeding was instituted to condemn. The evidence in all these cases related to market values and substantial property rights. In Kotz v. Illinois Central Railroad Co. 188 Ill. 578, it was held that a railroad company, when invested with the fee of its right of way, except in the discharge of its duty as a common carrier, is the owner of and entitled to the exclusive use and control of its right of way, relieved from any rights therein of adjoining owners to the same extent as a private person would be; and there can be no dispute of the proposition that a private owner of land, situated with respect to the premises of the plaintiff the same as the right of way of the railroad company, might elevate the ground and build a wall 20 feet high without any accountability to the plaintiff or being subject to any action for damages.

In a condemnation proceeding the law permits the petitioner to exhibit its plans for the construction of the im

provement, and the damages are assessed on the basis that the plans will be carried out, and only such damage will accrue to adjoining lands as will result from the construction of the improvement according to the plans. If, after such an assessment, there is a change affecting the adjoining lands more unfavorably and depreciating their market. value, there is a right of action for the increased damage and the measure is the additional injury caused by the alteration. (Wabash, St. Louis and Pacific Railway Co. v. McDougall, 126 Ill. 111; Chicago and Alton Railroad Co. v. Henneberry, 153 id. 354.) In such a case, however, the nature of the damage and the facts essential to a recovery are not changed.

There is a suggestion of an equitable estoppel of the defendant to change the grade of the railroad. The doctrine of equitable estoppel will be applied to a city if justice and right require, as in a case where the assertion of a public right will encourage or permit a fraud; but the declaration here does not allege that the defendant did anything which would operate to give the plaintiff the right to maintain a switch under any doctrine of equitable estoppel. There is not even an allegation that the original grade of the railroad was established by the city. In the exercise of the police power the city had a right, within reasonable limits, to require the railroad company to elevate its tracks so as to avoid grade crossings upon streets and protect the lives and property of its citizens. (Chicago and Northwestern Railway Co. v. City of Chicago, 140 Ill. 309.) That power, like other powers of government, when mere property interests are involved, is subject to constitutional limitations. (Dunne v. People, 94 Ill. 120; City of Chicago v. Jackson, supra.) But the power is incapable of alienation, and no valid contract can be made which assumes to surrender or alienate such a power which is required to continue in existence for the welfare of the public. (City of Chicago v. Chicago Union Traction Co. 199 Ill. 259.) So far as

requiring elevation of the tracks was an exercise of the police power no equitable estoppel could operate to prevent its exercise. All that was alleged in the declaration was that the plaintiff constructed improvements upon its own ground for use in connection with the switch. That gave no right against the city to have the railroad maintained at the existing grade, and we have seen that when considered as a contract to assume any liability of the railroad company the declaration stated no cause of action, because there was no such liability. The court erred in overruling the demurrer.

The judgment of the circuit court is reversed and the cause is remanded to that court, with directions to sustain the demurrer.

Reversed and remanded, with directions.

JOHN S. TOWNSEND, Appellant, vs. THE EQUitable Life ASSURANCE SOCIETY OF THE UNITED STATES, Appellee. Opinion filed April 23, 1914-Rehearing denied June 4, 1914.

I. INSURANCE-mutual insurance company is not a trustee for the policyholders. A mutual insurance company is the debtor of a policyholder and not a trustee, and the policyholder is the creditor to the amount determinable by the apportionment of the surplus under a tontine savings plan giving the policyholder a right to the reserve accumulations and to an apportioned surplus in the profits of the company.

2. SAME when policy will be enforced according to its terms. Where a written contract of insurance is sought to be enforced according to its terms and not sought to be set aside for fraud or misrepresentation in procuring it, all prior negotiations and representations will be disregarded.

3. SAME-when policyholder is not bound by apportionment of the surplus. Under a provision in a tontine policy that the surplus shall be apportioned equitably among such policies as shall complete their tontine dividend period, a policyholder is not absolutely bound by the insurance company's apportionment.

4. EQUITY-when bill for discovery and accounting is permissible though remedy at law exists. In this State a court of equity has jurisdiction of a bill for discovery and accounting even though the complainant has a remedy at law upon the contract, where the amount of the complainant's claim cannot be ascertained except upon an inspection of books and papers in the possession of the defendant, and the account itself is intricate and complicated, involving transactions about which the defendant, alone, can furnish accurate information. (Miller v. Russell, 224 Ill. 68, followed.)

5. CORPORATIONS-when suit does not involve internal management of affairs of foreign corporation. A bill in equity against a foreign insurance corporation by a policyholder to obtain a decree for the payment of money in accordance with his contract with the corporation does not involve the internal management of the affairs of the corporation and is not required to be brought in the State where such corporation is organized.

CARTER, J., dissenting.

APPEAL from the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. THEODORE Brentano, Judge, presiding.

JAMES HAMILTON LEWIS, (ELIJAH N. ZOLINE, of counsel,) for appellant.

MAYER, MEYER, AUSTRIAN & PLATT, and ALEXANDER & GREEN, for appellee.

Mr. JUSTICE DUNN delivered the opinion of the court:

The Appellate Court having affirmed a decree of the superior court of Cook county dismissing a bill of complaint of John S. Townsend against the Equitable Life Assurance Society of the United States, granted a certificate of importance and the complainant has appealed.

The cause was heard upon a demurrer to an amended bill, which was sustained. The complainant was the holder of a tontine policy of life insurance, and the object of his amended bill was an accounting from the defendant to as

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