the street rests in the abutting owner, and to require the abutting owner to pay rent for the use of such space, would be to impose an additional burden or servitude upon the fee and would be unlawful. It is clear, therefore, to provide for the erection of a subway beneath the sidewalk and in a street adjoining the property of the abutter where the fee in the street is in the abutter, and to require the owner of the fee to pay rent to the city for the use of his own propery, would be, in effect, to take from the owner his property without due process of law or without paying him due compensation there for, under the claim of regulating the use of the streets of the city, which would amount to an unlawful deprivation of the abutter's property, which the law would not permit.

The contention is made by the complainant that the city is without power to pass an ordinance requiring persons who use subways beneath sidewalks adjoining their property to pay compensation for the use of such space. The position of the complainant, we think, is well founded as to subways beneath sidewalks in streets of which such persons are the owners in fee, but as to subways beneath sidewalks in streets in which the fee is in the city or in the State, and which are held for the use of the city, we do not think this is true. In the Gregsten case and in the Norton Milling Co. case the right of the city of Chicago to confer, by contract, upon a private individual or corporation the right to use space beneath the public streets of the city was recognized. If the city has the power to contract for the use of space beneath the public streets of the city, we see no reason why it cannot provide for such use and regulate the manner of such use and the compensation that shall be paid for such use, by ordinance, in those streets in which it holds the fee, subject at all times to the right to reclaim the portion of the street then in use when the necessities of the public may require. In the Gregsten case it was held a city, under special legislative

authority as well as its general powers, may grant permits for and regulate the building of vaults under the streets, alleys and sidewalks and require such compensation for the privilege as it may deem reasonable and just, when such permits relate solely to such use of the alleys, etc., as is in nowise inconsistent with their use by the public. And in the Norton Milling Co. case it was held a city has power, in connection with the widening of a river and the building of a new bridge, to acquire an easement consisting of the right to swing the bridge over ground owned by the milling company, and may agree, in consideration of such easement, which will necessitate the removal of the milling company's boiler rooms, to excavate a vault under a street for its use as a boiler room, rent free, and to rebuild the milling company's dock upon the new line of the river bank and indemnify the company against damages from the city's tortious acts. We think, as applied to a case where the fee of the street is in the city, these cases are controlling.

It is also urged that the city, having granted to the complainant a permit to construct its building upon its premises according to plans and specifications which provided for the construction of subways beneath the sidewalks adjoining its premises, is now estopped to deny the right of the complainant to maintain said subways upon the property of the city free of charge. It is too clear for argument, we think, that the city had the right to regulate the construction of complainant's building at the time it was erected, and the fact that it may, through its building department, have approved certain building plans which were submitted to it by the complainant and granted to it a permit to construct its building, we think obviously did not estop the city afterwards to require the complainant to pay for the use of the city's property which its building in part occupied, or to remove its building, or the part thereof which rested upon the city's property. The

complainant, at most, we think, obtained a license to construct a subway beneath the sidewalk of the city adjoining its building, which license could be revoked by the city in case the complainant refused to comply with the ordinance which required it to pay to the city compensation for the use of the space beneath the sidewalk in the street which belonged to the city. We do not think the cases of Gridley v. City of Bloomington, 68 Ill. 47, Gregsten v. City of Chicago, supra, and City of Chicago v. Norton Milling Co. supra, are in conflict with this view. In each of those cases contractual relations were held to exist between the parties which were binding upon them, while in this case the most that can be claimed by the complainant is that it was granted a permit by the city to erect its building. At the time it took out this permit it had full knowledge of all the facts and obviously was not misled by the city. The doctrine of estoppel, we think, has no application to the case at bar.

It is finally urged the ordinance is unreasonable and discriminatory. We are unable to see that the ordinance is subject to attack for those reasons, but are of the opinion the criticisms made upon the ordinance in those particulars are hypercritical.

From a careful consideration of this record we have reached the conclusion that the trial court did not err in dismissing the bill as to the LaSalle street frontage and in enjoining the city from enforcing the ordinance as against the Madison street frontage upon which the complainant's property abuts.

The decree of the circuit court will be affirmed.
Decree affirmed.

Mr. JUSTICE DUNN, dissenting.

HERBERT M. SEARS, Trustee, Appellant, vs. THE CITY OF CHICAGO, Appellee.

Opinion filed October 28, 1910-Rehearing denied Dec. 9, 1910.

1. MUNICIPAL CORPORATIONS-a city's title to streets is held in trust for public. Whatever title a city has in its streets, whether it owns the fee or only an easement, is held in trust for the public, and the interest of the public must always be paramount to all other interests.

2. SAME-rights of public in streets cannot be granted away or encroached upon. A city cannot grant away the rights of the public in its streets, nor can they be encroached upon by private individuals, with or without the consent of the municipality, to the detriment of the public.

3. SAME-rights of abutting owner where the city owns fee of street. Where the city owns the fee of a street by statutory dedication, the abutting owners have the right of ingress and egress and an easement of light and air in addition to the right to use the street in common with all other persons, but they have no right to exclusively appropriate any portion of the street, either on the surface or above or below it, without the consent of the city.

4. SAME-power of city to allow use of streets not inconsistent with public use. In Illinois a city has power to allow any use of its streets which is not inconsistent with the public objects for which they are held, and it may regulate such use and fix a reasonable compensation to be paid for the same.

5. SAME-extent of city's power to allow use of streets where it owns the fee. Where the city owns the fee in a street, its power to allow any use thereof and to regulate such use and fix a reasonable compensation therefor is subject to no limitation except that such use shall be reasonable and in a manner to safeguard the paramount right of the public to the free and unobstructed use of the street for the purpose for which it was dedicated.

6. SAME-right of abutting owner who owns fee to center of strect. An abutting owner who owns the fee to the center of the street has the right to make any reasonable use of the ground which does not interfere with the full enjoyment of the easement which is held by the city for the use of the public, and he cannot be compelled to pay the city compensation for such use.

7. SAME-a city acquires only an easement where street is acquired by condemnation. Where land needed for the purpose of a street is acquired by a city by condemning private property the

city acquires only an easement, and the fee remains in the owner of the property subject to such easement.

8. SAME-right of a city to regulate use of sub-sidewalk space. A city has the right to regulate the use of sub-sidewalk space and charge a reasonable compensation therefor where it owns the fee of the streets; but where the fee is in the abutting owners they may make any use of the sub-sidewalk space not inconsistent with the public easement in the street and cannot be required to pay the city compensation for such use.

9. PLATS-plat of School Section addition to Chicago was a common law plat. The plat of School Section addition to Chicago was not executed in accordance with the statute then in force and amounted merely to a common law dedication, under which purchasers of lots took title to the center of the streets marked thereon, upon which such lots abutted.

10. SAME the curative act of 1843 did not affect prior conveyances. The curative act of 1843, designed to cure the defective execution of the plat of School Section addition to Chicago, had no effect upon conveyances made prior to the time such act took effect, as the title of abutting owners to the center of the streets vested at the time of the conveyances and could not lawfully be divested or disturbed by the act of 1843.

11. SAME-right of abutting owner under common law dedication is not a mere contingent interest. The title of an abutting owner to the center of a street in which the city does not own the fee is not a contingent interest or a mere expectancy but is a present subsisting ownership of the fee, subject to the public easement, which he may subject to any private use he sees fit in connection with his lot, if not inconsistent with the public easement.

APPEAL from the Circuit Court of Cook county; the Hon. JULIAN W. MACK, Judge, presiding.

WILSON, MOORE & MCILVAINE, for appellant:

The plat of the original town of Chicago, made in 1830, is governed by the Plat Statute of 1825. That statute was imported from Indiana and had been construed there as a common law plat. Cox v. Railroad Co. 48 Ind. 178; Conner v. New Albany, 1 Blackf. 43; Railroad Co. v. Scott, 74 Ind. 29.