The City of Chicago v. Wright

• Decision Date: 30 September 1873
• Citation: 1873 WL 8461,69 Ill. 318
• Parties: THE CITY OF CHICAGO et al.v.TIMOTHY WRIGHT.
• Court: Illinois Supreme Court

69 Ill. 318

1873 WL 8461 (Ill.)

THE CITY OF CHICAGO et al.

v.TIMOTHY WRIGHT.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county.

Mr. M. F. TULEY, Corporation Counsel, for the appellants.

Messrs. SHOREY & NORTON, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was a bill in equity, filed June 24, 1872, in the Cook circuit court, by Timothy Wright, against the city of Chicago and Mancel Talcott, as chief of the police of said city, for an injunction.

It appears in substance, by the bill and plat annexed, that Washington and Madison streets are east and west streets of said city; that for a long time before, on, and ever since June 26, 1854, Wright was and still is seized in fee of certain lots comprising a block in said city, lying between said streets, bounded on the west by Ada street, and on the east by what is known as Elizabeth street; also, of a certain strip of land, fifty-one feet wide, corresponding in length with the width of said block, and being upon the east end thereof; that this strip comprises the whole space of what is known as Elizabeth street, between and connecting with Washington and Madison streets, excepting a narrow strip along the east line or side of Elizabeth street, being about fourteen feet wide, running from Washington to Madison street, and covered, or nearly so, by a sidewalk; that on said east side of Elizabeth street, property owners have constructed buildings, abutting on the east line of said street. By the bill, Wright alleges that he has never conveyed said first mentioned strip to the city, or dedicated it to public use. He claims that he is entitled to the possession of said strip, and that, at various times, he has attempted to take possession of it, and fence it up, but has been prevented by the city authorities and police from so doing. The bill prays for an injunction, enjoining the city of Chicago, and Talcott, as chief of the police thereof, their attorneys, solicitors, agents and servants, from going upon this first mentioned strip of land; from opening, or causing it to be opened or kept open for public use; from tearing down, injuring or in any way interfering with the fence on said land; or preventing Wright, his agents, etc., from restoring said fences and inclosing said strip of land.

A temporary injunction was issued, by order of the court, pursuant to said prayer. An answer was filed by defendants, putting in issue the material allegations of the bill; and, on replication, the cause was heard upon pleadings and proof, and a decree passed making said injunction perpetual. From that decree defendants appealed to this court, assigning error in the rendition thereof.

It appears, by uncontradicted testimony, that in 1855 the strip in controversy was thrown open to public use, by the construction of a fence along the west line thereof, between Washington and Madison streets, and the planting of trees on a line parallel with the fence and about ten feet east therefrom, indicating a space between the trees and fence for a sidewalk; that the strip in question, and the other, being about fourteen feet wide, constituted, at that time, an apparent street of about sixty-six feet in width; that such apparent street then, and ever since, had a road bed, was used by the public as a street, and extended north to Randolph street; and the witness, who was Wolcott, county surveyor, an old resident of the city, and in 1855 employed to survey certain premises near this locality, testifies, that the trees which had been planted appeared, at that time, to have been set out there some four or five years, and he was quite sure that the land thus thrown open had been used by the public as a street four or five years before that time--the east side was being built upon. This evidence was wholly uncontradicted, and tends strongly to show that the land in question had been thrown open to the public, and used by the public, for the purposes of a street, for more than twenty years before the commencement of this suit.

Then witness Witbeck, whose testimony is, in no respect, controverted, shows that the land in question had comprised a part of Elizabeth street, and was known by him to have been used by the public, as a street, for at least fifteen years; corroborates Wolcott as to the fence and trees along the west side. He further testifies, that in August, 1860, he purchased of Wright the lot on the north-west corner of Washington and Elizabeth streets, for the purpose of a residence, while the street was so open and in use by the public; that Wright exacted of witness a bond, in the penalty of $1000, conditioned that witness would erect a house on the lot purchased, to cost not less than a specified amount; that during the negotiations Wright represented to witness that Elizabeth, between Washington and Madison streets, was a street, and should never be closed. The witness built a house on this lot, for a residence.

It appears that Wright has been out of the possession of the land in question the whole time since it was first thrown open for public use, except that, in 1868, he took forcible possession and fenced up the street by running a fence across each end at Washington and Madison streets east to the sidewalk on the east side of Elizabeth, and then put a fence along the east line thereof from Washington to Madison, thus excluding the property owners, who had built on the east side, from all ingress or egress except such as was afforded by this sidewalk in front of their property. This was probably regarded as a nuisance by the city authorities and persons accustomed to use the street, and the fences were soon removed; since which, Wright has been out of, and the city in, possession for the use of the public; so that, at the time of commencing this suit, the city was in peaceable possession of this land for public use.

That the city, in legal contemplation, was in possession, must follow from the doctrine of the courts respecting the right of a municipal corporation, to which the law gives the general possession and control of the streets, etc., to recover the same in an action of ejectment. Where the corporation possesses the fee, although in trust for public uses, there are no technical obstacles in the way of maintaining such action against any one who may wrongfully intrude upon or occupy or detain the property. But where the adjoining proprietor retains the fee, the courts seem to have overcome the difficulty by regarding the right to the possession, use and control of the property by the municipality, as a legal and not a mere equitable right. Dillon on Mun. Corp. sec. 523, and cases cited in notes.

By the charter of Chicago, the possession and control of the streets, for public use, is given to the municipality. (Gary's Laws, Ch. 4, p. 22. et seq.) The complainant shows, by testimony given on his behalf, that. in 1863 or 1864, he attempted to take possession of this land by force, and, by the direct action of the city authorities, he was prevented, thus showing that the city assumed to have the possession and control of this as a street. The city having, by law, the capacity to take possession and control of all the streets within it, for public use, and having assumed possession and control of the one in question, which had been so thrown open for, and been so long in, public use, we must regard the municipality as having, in fact, the possession at the time of filing the bill.

There is no allegation in the bill that the city was about to dig up the soil, or do any act which would constitute an irreparable injury to the estate. What, then, is the precise nature of this case? The city is in peaceable possession, and Wright, being out of and desirous of obtaining possession without recourse to any action of ejectment, or other action by which the rights of the parties could be determined at law, seeks to obtain possession by his own mere act, against the will of the occupant, by taking the law into his own hands, and asks a court of equity to tie the hands of the city authorities, including the police power, while he may thus make entry upon this land in use as a public street, eject the public and take possession himself, without even proposing to limit himself as to the manner of doing it.

The decree of ...