COOKE, J. Plaintiff in error, Jacob Glos, has sued out this writ of error to review a decree for partition of the superior court of and aunts died at an early age of consumption, and that disease had been common in her family on both sides. She was a frail, delicate child, and the evidence was sufficient | Cook county. Plaintiff in error is the holder to raise the presumption of death, and also, on account of her age, to raise a reasonable presumption of intestacy and that she left no issue. of a tax title to the property in question, which title is adverse to that of the tenants in common. He was not made a party defendant to the bill, unless it should be held The order of the circuit court is affirmed. that he was made a defendant under the Order affirmed. (263 Ill. 18) MILLER v. MILLER et al. (No. 8783.) (Supreme Court of Illinois. April 23, 1914.) 1. PARTITION (§ 46*)-CHANCERY PROCEEDINGS -PARTIES. The practice in chancery proceedings for partition must conform to the Partition Act (Hurd's Rev. St. 1913, c. 106), so that sections 5 and 6 thereof, relating to necessary parties in such suits are applicable. [Ed. Note. For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. § 46.*] 2. PARTITION (8 48*)-NECESSARY PARTIES ADVERSE CLAIMANTS. designation of "unknown owners." After naming all the cotenants as defendants, except the complainant in the bill, and all those who had a common interest in the property with the cotenants, the bill alleged that there were other persons who claimed some right, title, or interest in or to the premises who were unknown, and they were made parties defendant by the name and description of unknown owners. The bill prayed that all of the defendants except the cotenants should be perpetually restrained from claiming or asserting any title to or interest in the premises and that a partition might be had among the tenants in common. Before hearing was had on the bill, Jacob Glos filed his written entry of appearance, claiming to have been made a defendant under the designation of unknown owners, and afterwards filed an answer, in which he al Partition Act (Hurd's Rev. St. 1913, c. 106) § 5, requires the petition to set forth the interests of all interested parties, including tenants for years, life, etc., and every person who may become entitled to any beneficiary interest; section 6 requires every person having an interest, and who is not a petitioner, to be made a defendant; and section 39 provides that in all suits for partition, whether by bill in chan-leged that he had derived title to the premiscery or by petition under the act, the court may es by deed from the executors of Daniel J. determine all questions of conflicting titles and Hubbard, who in his lifetime had secured remove clouds upon the titles to any of the property sought to be partitioned and invest title to the property from tax sales and deeds titles in the allottees. Held, that the holders of issued thereunder. The complainant moved adverse titles are proper, but not necessary, to strike the appearance and answer of plainparties defendant in a chancery partition suit. tiff in error from the files, which motion was [Ed. Note. For other cases, see Partition, denied. Cent. Dig. §§ 118-129; Dec. Dig. § 48.*] The bill was thereupon dismissed as to plaintiff in error, over his objection, on 3. PARTITION (8 64*)-DISMISSAL-RIGHT. motion of the complainant. A decree was entered finding title in the cotenants as set up in the bill; also finding that other persons who had been made parties defendant by the description of unknown owners claimed some right, title, or interest in the premises, but that none of such persons had any valid right, title, or interest in or to the premises, and ordering partition of the property. Thereafter plaintiff in error entered his motion to vacate the decree, and in the alternative that he be allowed an appeal. These motions were continued to the next term of court, at which time he again filed his written appearance and also a petition Complainant could dismiss a partition suit as to a defendant who was not a necessary party and had not filed a cross-bill. [Ed. Note. For other cases, see Partition, Cent. Dig. 88 186, 187; Dec. Dig. § 64.*] 4. JUDGMENT (§ 673*)-PERSONS BOUND BY. A decree in partition will not affect a party defendant who was properly dismissed by complainant before the decree was rendered. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1165, 1187; Dec. Dig. § 673.*] 5. Appeal and ERROR (§ 144*)-PARTIES AP PELLANT. A defendant, who was not a necessary party, and as to whom the suit was dismissed, so that he was not bound by the decree, cannot have it reviewed by writ of error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 923; Dec. Dig. § 144.*]. Error to Superior Court, Cook County; William E. Dever, Judge. Partition suit by O. C. Miller against E. M. Miller, Jacob Glos, and others. Decree of partition, and Glos moved to vacate the decree, and in the alternative to be allowed an appeal, and the motions were denied, and he brings error. Writ dismissed. John R. O'Connor, of Chicago, for plaintiff in error. Robert Zaleski, of Chicago (Sherman C. Spitzer, of Chicago, of counsel), for defendants in error. for leave to answer the bill by way of interpleader. These motions were denied and the petition was stricken from the files. Plaintiff in error prayed an appeal, which was denied. Thereupon this writ of error was sued out. The contention of plaintiff in error is that he was a necessary party to the partition proceeding and that his rights and interests in the property should have been ascertained by the court, and if his title was found to be invalid he should have been reimbursed in accordance with the Revenue Law. Defendants in error concede that plaintiff in error titled to the reversion, remainder, or inheritance, and of every person who upon any contingency may be or become entitled to any beneficiary interest in the premises; and section 6 provides that every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant. It is by virtue of the language of these two sections that plaintiff in error contends he was a necessary party. As we have already stated, these sections of the statute apply in this proceeding and must be complied with. was a proper party defendant to the bill for | in, including tenants for years, for life, by partition but deny that he was a necessary curtesy, or in dower, and of all persons enparty. In support of his position plaintiff in error cites a line of cases which hold that the practice prescribed in the Partition Act applies to bills in chancery for partition, and insists that under that act he was a necessary party defendant. Defendants in error rely upon the fact that this is a proceeding by bill in chancery and not by petition under the statute, and cite cases in support of the contention that the practice prescribed by the Partition Act does not apply. They cite such cases as Labadie v. Hewitt, 85 Ill. 341, which holds that bills in chancery for partition are not required to conform to the practice of the Partition Act, and that the Partition Act of 1861 (Hurd's Rev. St. 1913, c. 106) fully recognizes chancery proceedings as not being governed by that act and as not coming within its provisions; and Wilson v. İllinois Trust & Savings Bank, 166 Ill. 9, 46 N. E. 740, which holds that the Partition Act, with the exception of the last two sections, relates to a proceeding at law and nowise affects the jurisdiction of equity, which has long been well established. Plaintiff in error relies upon and cites such cases as Loomis v. Riley, 24 Ill. 307; Gage v. Reid, 104 Ill. 509; Gage v. Bissell, 119 Ill. 298, 10 N. E. 238; Trainor v. Greenough, 145 Ill. 543, 32 N. E. 545; Prichard v. Littlejohn, 128 Ill. 123, 21 N. E. 10; Rohn v. Harris, 130 Ill. 525, 22 N. E. 587; Coffin v. Argo, 134 Ill. 276, 24 N. E. 1068; Spencer v. Wiley, 149 Ill. 56, 36 N. E. 627; Cheney v. Ricks, 168 Ill. 533, 48 N. E. 75; Wachter v. Doerr, 210 Ill. 242, 71 N. E. 401; Crane v. Stafford, 217 Ill. 21, 75 N. E. 424, and Schulz v. Hasse, 227 Ill. 156, 81 N. E. 50-as holding in effect, that the practice prescribed in the Partition Act applies to proceedings in chancery for partition as well as to petitions under that act. Those cases which hold that sections 5 and 6 of the Partition Act govern partition proceedings in chancery are particularly relied upon. [2] The only question to be determined is whether the interest claimed by plaintiff in error in this property is such as requires him to be made a party defendant under these two sections of the Partition Act. Section 5 provides for the various interests which must be set forth in the petition. Section 6, in providing who shall be made parties, necessarily refers to persons having such interests as are designated in section 5. These sections were not intended to include every possible interest, whether common to the estate sought to be partitioned or adverse and hostile to it. They include only such persons as have a common interest in the property sought to be partitioned, and do not include the holders of titles adverse or hostile to that of the cotenants. Even if the language of these two sections permitted of any other construction, the fact that by section 39 of the act it is provided that in all suits for partition, whether by bill in chancery or by petition under the act, the court may investigate and determine all questions of conflicting or controverted titles and remove clouds upon the titles to any of the premises sought to be partitioned, invest titles in the parties to whom the premises are allotted, etc., would be conclusive that the construction we have given to sections 5 and 6 is the proper one. As we said in Glos v. Carlin, 207 Ill. 192, 69 N. E. 928: "The Partition Act thus allows two kinds of relief in relation to two different subjects to be sought in the same proceeding, to wit, partition, and the removal of clouds upon the title sought to be partitioned." [1] That there is some conflict in the decisions on the question of the practice which governs in chancery proceedings is apparent, but this conflict should not result in any confusion as to the proper practice to be followed. By our later decisions we have held The complainant in a bill for partition or that the practice in chancery proceedings the petitioner in a proceeding at law may, must conform to the Partition Act. It is if he sees fit, make adverse claimants and therefore immaterial, so far as the determi- the holders of title hostile to that of the nation whether plaintiff in error was a nec- tenants in common parties defendant and essary party defendant is concerned, that thus try out the question of title, to the end this was a bill in chancery instead of a pe- that clouds, if such there be, may be removtition at law, as sections 5 and 6 of the Par- ed. It is not incumbent upon them to do tition Act, as to who shall be considered nec- so, however, unless they shall so elect. The essary parties, apply in either event. Gage holders of such adverse titles are therefore, v. Reid, supra; Prichard v. Littlejohn, su- under section 39 of the Partition Act, proper pra; Cheney v. Ricks, supra; Wachter v. but not necessary parties defendant. The Doerr, supra. Said section 5 provides, among Legislature no doubt recognized the fact that other things, that the petition shall set forth it was generally advisable to take advantage the interests of all parties interested there- of a proceeding in partition to quiet the title and uses of such railways when that act was enacted. Cent. Dig. §§ 315-319, 762, 763, 767, 769, 772; [Ed. Note.-For other cases, see Railroads, Dec. Dig. 103.* For other definitions, see Words and Phrases, vol. 7, pp. 6693-6696.] 2. RAILROADS (§ 2*)—Railroad Companies— POWERS. The same corporation, as to its charter powers, cannot, under the statutes of this state, be both a street railway and a commercial railway. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 2; Dec. Dig. § 2.*] 3. RAILROADS (§ 2*)—STREET RAILRoads (§ 2*) -WHAT CONSTITUTES "STREET RAILROAD""COMMERCIAL RAILRoad.' "Commercial railroads" embrace those for all freight and passenger traffic between one town or place and another, and are usually not constructed upon streets and highways except for short distances, while "street railways" embrace those operated upon public streets for the hand baggage from one place to another on the street, but the character is determined by the character of the traffic or service, and not by the location. to the premises and remove such clouds as might exist. In making it optional with a party seeking partition to avail himself of this remedy it also undoubtedly recognized the fact that there are cases where it would not be advisable to invite litigation over adverse titles. It frequently happens that it would be unwise for the cotenants to seek such litigation, and in this case there is a reason quite apparent why they would not seek to remove the deed of plaintiff in error to the premises as a cloud upon their title. [3-5] It is further contended that whether or not plaintiff in error was a necessary party he was, in fact, made a party under the designation of "unknown owners" and that the decree seeks to bind him. Whether the situation is such that plaintiff in error could be properly held to have been made a defendant as an unknown owner is not sufficiently disclosed by the pleadings for our determina-purpose of conveying ordinary passengers with tion. The chancellor evidently regarded him as having been made a party defendant as one of that class, as is indicated by his denial of the motions to strike the written entry of appearance and answer of plaintiff in error from the files. If the plaintiff in error was properly included within the class designated as unknown owners he was separated from that class and became a defendant under his own proper name when he enWhere a railroad company neglects to tered his appearance and answered the bill. fence its road as required by Hurd's Rev. St. As he was not a necessary party defendant 1911, c. 114, § 62, it is not contributory negliand had not filed a cross-bill the complain-gence defeating a recovery for an owner of adants had the right to dismiss as to him (Gage v. Bissell, supra; Gage v. Stokes, 125 Ill. 40, 16 N. E. 925); and, this having been done, plaintiff in error had no further interest in the proceedings and could not be bound or affected by any decree which might there after be entered. As plaintiff in error was not a party or privy to the record or one who was injured by the decree or would be benefited by its reversal, he is not entitled to sue out this writ of error. McIntyre v. Sholty, 139 Ill. 171, 29 N. E. 43; Harms v. Jacobs, 155 Ill. 221, 40 N. E. 488; People v. Lower, 254 Ill. 306, 98 N. E. 557. The writ of error is dismissed. Writ dismissed. (263 I11. 205) HARTZELL v. ALTON, GRANITE & ST. LOUIS TRACTION CO. (No. 9363.) (Supreme Court of Illinois. April 23, 1914.) 1. Railroads (§ 103*)—DUTY TO FENCE RAIL ROAD "STREET RAILROAD." Act March 31, 1874 (Hurd's Rev. St. 1911, c. 114, § 62), requiring every railroad corporation to maintain fences on both sides of its road, sufficient to prevent stock from getting thereon, applies to an interurban electric railroad where its lines are operated outside of municipalities, especially where it carries not only passengers but also express; it not being a horse or street railway within the exception as to such railways in view of the purposes [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 2; Dec. Dig. § 2; Street Railroads, Cent. Dig. §§ 2-4; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 7, pp. 6693-6696; vol. 2, p. 1303.] 4. RAILROADS (§ 422*)—LIABILITY FOR INJURIES TO ANIMALS CONTRIBUTORY NEGLIGENCE. land adjacent to the right of way. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1512-1515; Dec. Dig. § 422.*] Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; W. E. Hadley, Judge. Action by V. T. Hartzell against the Alton, Granite & St. Louis Traction Company. From a judgment for plaintiff affirmed by the Appellate Court, defendant appeals. Affirmed. Williamson, Burroughs & Ryder, of Edwardsville, for appellant. D. H. Mudge, of Edwardsville, for appellee. CARTER, J. This suit was commenced by appellee before a justice of the peace in Madison county to recover damages and attorneys' fees on account of the killing of his cow while she was on the track of appellant. Judgment was there entered against appellant. On appeal to the circuit court of Madison county judgment was again entered against appellant. The Appellate Court, on appeal, affirmed the judgment of the circuit court and granted a certificate of importance to this court. The evidence shows, without contradiction, that the appellant operated an electric railway between the cities of Edwardsville, in Madison county, and St. Louis, Mo., passing through Pogue, Mitchell, Nameoki, Madison, Granite City, and East St. Louis; that both passenger and express cars were used in its operation; that the road ran through parts of the counties of Madison and St. Clair, in this state. [1] The principal question argued in the briefs is whether appellant is subject to the requirements of "An act in relation to fencing and operating railroads," in force July 1, 1874 (Hurd's Rev. Stat. 1911, p. 1824). At the point in the country where the accident happened the railway right of way was on its own private property and not on a public highway. This right of way at this point was not fenced. nated interurban railways, and are usually held to partake to some extent of the characteristics of both street railways and commercial railroads. In cities and towns they resemble street railways in most respects. In the country, in recent years, they are constructed on roadbeds similar to those of steam railroads, and it is frequently stated by the authorities that they are becoming more and more like commercial railroads, many of them carrying mail, express, and light freight, and some of them heavy freight. Booth on Street Railways (2d Ed.) § 431; Baldwin on American Railroad Law, § 6. "Interurban electric roads," as that term is generally used, might well be regarded as a third or distinct class of railroads. 1 Lewis on Eminent Domain (3d Ed.) § 150. In Cincinnati Electric R. Co. v. Lohe, 68 Ohio St. 101, 67 N. E. 161, 67 L. R. A. 637, it was held that an interurban railroad, though classed as a street railway by the statutes of that state, should have applied to it, in its operation outside of municipalities, similar rules of law as applied to steam or commercial railroads under like circumstances. In McNab v. United Elevated R. Co., 94 Md. 719, 51 Atl. 421, it was held that such street railroads as lie in the open country must in many respects be operated as if they were commercial railroads and corresponding precautions taken. The meaning of the word "railroad" in any act can only be determined by reference to the context and the manifest intention of the Legislature. 1 Elliott on Railroads (2d Ed.) § 6. The question whether the term "railroad" would include a street railroad has often been raised. The answer must depend upon the character of the stat [2, 3] Appellant was organized under the general Incorporation Act as a street railroad. The purpose for which a corporation is organized usually can best be ascertained by reference to the terms of its charter. Evanston Electric Illuminating Co. v. Kochersperger, 175 Ill. 26, 51 N. E. 719. The same corporation, as to its charter powers, under our statutes cannot be both a street railway and a commercial railway. Bradley Mfg. Co. v. Chicago & Southern Traction Co., 229 Ill. 170, 82 N. E. 210, and cases cited. Commercial railroads embrace railroads for all freight and passenger traffic between one town and another or between one place and another. They are usually not constructed upon streets and highways, except for short distances. Street railways embrace all such railroads as are operated upon public streets for the purpose of conveying ordinary passengers, with hand baggage, from one place to another on the street. 1 Lewis on Eminent Domain (2d Ed.) § 110a; Wilder v. Aurora, etc., Traction Co., 216 Ill. 493, 75 N. E. 194. "The mere location of a railroad does not determine its character as a street rail-ute and the purpose for which it was enway or otherwise. Whether a railroad be a street railroad or not depends on the character of its traffic or service." 3 Dillon on Mun. Corp. (5th Ed.) § 1258; Spalding v. Macomb & Western Illinois Ry. Co., 225 Ill. 585, 80 N. E. 327. A distinctive feature of a "street railway" is that it is intended to be used for the transportation of passengers and not of freight. The main test is that street railways are used for local convenience and street travel. 1 Elliott on Railroads (2d Ed.) §§ 6, 7; Harvey v. Aurora & Geneva Ry. Co., 174 Ill. 295, 51 N. E. 163. "Intermediate between street railways within a municipality, which are intended merely for local convenience and to facilitate travel from point to point within the municipality or the suburban districts immediately adjacent thereto, and the steam railroad, intended for general commerce between the different cities and places without respect to distance, a species of railroad has been developed by the use of electric power which embraces some of the characteristics of both the ordinary street railway and the general steam or commercial railway." 3 Dillon on Mun. Corp. (5th Ed.) § 1258. These are generally denomi acted. Riggs v. St. Francis County Ry. Co. (Mo.) 96 S. W. 707. "In a statute prohibiting the placing of obstructions upon railroad tracks, or insisting upon the exercise of peculiar care to prevent injury to passengers or to persons at crossings, or fixing the liability for the consequences of a negligent operation of the road, the term 'railroad' is considered to comprehend street railways as well." 1 Wood on Railroads, § 1. Elevated roads in this state, although incorporated under the general Railroad Act, have been held, when operated in the streets of a city, for some purposes and in a certain sense to be street railways instead of ordinary commercial railroads. Doane v. Lake Street Elevated R. Co., 165 Ill. 510, 46 N. E. 520, 36 L. R. A. 97, 56 Am. St. Rep. 265; Cummings v. Union Elevated R. Co., 169 Ill. 33, 48 N. E. 1108; 1 Elliott on Railroads (2d Ed.) § 7. See, also, Barsaloux v. City of Chicago, 245 Ill. 598, 92 N. E. 525, 19 Ann. Cas. 255. The question whether elevated roads in a municipality, and electric street railways and interurban railroads outside of municipalities, should be held to be commercial or street railways has most frequently arisen unknown; but the mischief to be prevented with reference to the right to place such enacted, in 1874, interurban railroads were A very similar question to the one here v. Cleveland, Cincinnati, Chicago & St. Louis Appellant concedes that it is not only car- [4] Appellant further argues that the court The judgment of the Appellate Court will Judgment affirmed. [Ed. Note.-For other cases, see Attorney and The charging by an attorney of $225 for [Ed. Note. For other cases, see Attorney and 3. ATTORNEY AND CLIENT (§ 140*)-COMPEN- The courts are not bound by the opinions [Ed. Note.-For other cases, see Attorney and Information by the People, on the relation |