Carstens v. City of Wood River

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: Carstens v. City of Wood River , 344 Ill. 319, 176 N.E. 266 (Ill. 1931)
• Decision Date: 04 June 1931
• Docket Number: No. 20461.,20461.
• Parties: CARSTENS v. CITY OF WOOD RIVER et al.

344 Ill. 319

176 N.E. 266

CARSTENS

v.CITY OF WOOD RIVER et al.

No. 20461.

Supreme Court of Illinois.

April 23, 1931.

Rehearing Denied June 4, 1931.

Suit by Frnak Z. Carstens against the City of Wood River and others. Decree of dismissal, and complainant appeals.

Affirmed.

Appeal from Circuit Court, Madison County; Louis Bernreuter, judge.

Geers & Geers, of St. Louis, for appellant.

F. J. Manning, City Atty., of Wood River, and Thomas Williamson and Warnock, Williamson & Burroughs, all of Edwardsville, for appellees.

STONE, J.

This cause is here on appeal from a decree of the circuit court of Madison county dismissing the bill of appellant for want of equity. By this bill appellant seeks to enjoin the city of Wood River, its mayor, aldermen, and members of the recreation board of that city, and others, from the operation of a pavilion, swimming pool, and bathhouse in a park in the city of Wood River described in the bill. The prayer of the bill also is that a mandatory injunction issue requiring the removal of the swimming pool and fence surrounding it, and other structures, and that the appellees be enjoined from granting concessions on the park property or charging or permitting to be charged anything for the use of the swimming pool, bathhouse, or pavilion. Appellant in his bill avers that he owns property directly across the street from this park and that his property is especially injured and damaged by reason of the construction of the swimming pool, bathhouse, and dancing pavilion. Appellees filed a demurrer to this bill, which was sustained by the chancellor and the bill dismissed. On appeal to this court that decree was reversed and the cause remanded with directions to overrule the demurrer, it being held in the opinion that the averment of special injury to appellant's property was sufficient to give a court of equity jurisdiction to hear the cause. Carstens v. City of Wood River, 332 Ill. 400, 163 N. E. 816, 63 A. L. R. 471. The cause thereafter proceeded to a hearing before a master in chancery on the bill, answer, and replication thereto. Hearing of evidence was had and the master in chancery recommended the bill be dismissed for want of equity. Numerous objections to the master's report were filed, which were allowed to stand as exceptions thereto, and these exceptions were overruled and the decree entered finding appellant was without equity and dismissing his bill. The allegations of the bill are fully set forth in Carstens v. City of Wood River, supra, and need not be again set out in detail here.

From the evidence it was developed that on August 3, 1914, James H. Chessen, Anna Chessen, and James H. Chessen, trustee, for a substantial consideration conveyed to the village (now city) of Wood River a tract of land for the purposes named in the deed, as follows: ‘Said tract of land is conveyed to and accepted by said village of Wood River for park purposes, the same to be maintained as a park for said village, to be governed and controlled by the ordinances of said village for said purposes.’ It appears that the north half of this strip of ground was taken by condemnation for a community high school site, and that the tract remaining is 768 feet in length by 316 feet in width. On March 15, 1926, the grantors in the original deed executed and delivered another deed to the city of Wood River, reciting that it was the purpose thereof to enable the city to provide for the construction, equipment, and maintenance of a recreation center, including public playgrounds, swimming pool, bathhouse, and recreational pavilion. The evidence also shows that in the spring of 1926 the Standard Oil Company of Indiana submitted to the city council a proposition to build on this tract a swimming pool, bathhouse, and pavilion, fully equipped, without expense to the city, and to donate the same to the city, the cost thereof not to exceed $100,000. Blueprints and specifications were also filed with the offer, which was accepted and work immediately begun. The swimming pool and bathhouse were put in operation on July 4, 1926, and were in continuous operation from that date until after Labor Day in September of that year, when they were closed for the season and gates in the fence surrounding the swimming pool were locked. Appellant thereafter filed this bill.

Appellant's evidence is that he owns a tract of land on the west side of Wood River avenue, directly across from the park, which contains about five acres and suitable for subdivision as building lots for residential purposes. He testified, and offered the testimony of other witnesses to show, that his property was injured by reason of the establishment of this recreation center on the park property. His bill is bottomed on the proposition that the alleged illegal use of the park property was of special injury and damage to his property. Illegal use of public property can only be complained of by the people. To entitle a private individual to maintain a bill to enjoin a breach of public trust, in the absence of statutory authority, he must show that he is especially injured thereby. McCormick v. Chicago Yacht Club, 331 Ill. 514, 163 N. E. 418, 60 A. L. R. 763;Hartshorn v. Bierbom, 312 Ill. 275, 143 N. E. 872;McPike v. Illinois Terminal Railroad Co., 305 Ill. 298, 137 N. E. 235;Hill v. St. Louis & Northeastern Railway Co., 243 Ill. 344, 90 N. E. 676;Doane v. Lake Street Elevated Railroad Co., 165 Ill. 510, 46 N. E. 520,36 L. R. A. 97, 56 Am. St. Rep. 265;City of Chicago v. Union Building Ass'n, 102 Ill. 379, 40 Am. Rep. 598. To sustain this allegation appellant offered the testimony of himself and three witnesses, one of whom was James H. Chessen, from whom the city purchased the park. He testified that the lots were depreciated one-half by reason of the building of the amusement equipment. One Lucy Marquis testified that she...