Dunne v. Rock Island Cnty.

• Decision Date: 20 April 1916
• Docket Number: No. 10288.,10288.
• Citation: 273 Ill. 53,112 N.E. 342
• Parties: DUNNE v. ROCK ISLAND COUNTY.
• Court: Illinois Supreme Court

273 Ill. 53

112 N.E. 342

DUNNE

v.ROCK ISLAND COUNTY.

No. 10288.

Supreme Court of Illinois.

April 20, 1916.

Appeal from Circuit Court, Rock Island County; F. D. Ramsay, Judge.

Bill by Edmund M. Dunne, Catholic Bishop, against the County of Rock Island. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions.

J. T. & S. R. Kenworthy and James F. Murphy, all of Rock Island, for appellant.

Floyd E. Thompson, State's Atty., and Searle & Marshall, all of Rock Island, for appellee.

DUNCAN, J.

On June 21, 1915, appellant filed his bill in equity in the circuit court of Rock Island county against the county of Rock Island, appellee, praying for an injunction to restrain the county from erecting a jail on the public square in the city of Rock Island. The bill alleges that appellant is the owner in fee of lots 1, 2, and 3 in block 11 in the town of Stephenson (now city of Rock Island), and that he holds such lots in trust for the Roman Catholic Church; that on said lots is built a church known as St. Joseph's Roman Catholic Church, and south of the church on said lots, and fronting east, is a school building known as St. Joseph's Parochial School; that said church and school buildings are, and have been for many years, occupied and used as a church and as a school for said church, and have been erected and maintained at great cost, and are advantageously located by reason of said lots fronting and abutting on the public square in said city; avers that the county commissioners of the county of Rock Island became owners in fee of the lands on which the town of Stepenson was surveyed and platted, and that they surveyed and platted said town, as such owners, July 10, 1835, and that on the plat of said town as recorded was designated and marked a public square, surrounded by streets, alleys, lots, and blocks; that in platting said lots, streets, alleys, and square in said town the commissioners did not in all things comply with the act of 1833 then in force (Rev. Laws 1833, p. 599), entitled ‘An act providing for the recording of town plats,’ and by reason thereof they made a common law, and not a statutory, dedication of the streets, alleys, and the public square aforesaid; that shortly after said platting the town of Stephenson became incorporated, and accepted the plat and dedication, and that said commissioners proceeded to sell to various parties the lots abutting on said square, including said lots of appellant that abut said square on the west side thereof; avers that the only reference in the plat, or any certificate thereto, to said square are the words ‘Public Square,’ written within four boundary lines drawn on the four sides of the square; that appellant, as the owner of the said three lots, and the owners of the other lots abutting on the square, became the owners in fee of said square, subject only to the right of the public to have the same remain and be used as a public square, and was to remain and continue for that use open and free from encroachments of any kind; alleges that the county of Rock Island, without right, is about to let a contract and build on the west half of said square, directly east and opposite to the front windows of the said school building,in full view of the school children while attending said school, a jail building; that the erection thereof will be a permanent and irreparable damage and injury to said property and buildings, and will greatly and constantly embarrass, hinder, and prevent the use and occupation thereof in so ample a manner as is now permitted; that the erection of such jail will necessarily subject the communicants of said church and the children attending said school to many great annoyances and inconveniences, and will deprive them of the use of the square as a public square and obstruct the air and light and view, and subject said square to a use not contemplated by the dedication or by the purchasers of lots abutting on said square; and that such a taking of appellant's property is within the prohibition of the Constitution of Illinois. The bill finally avers the county is not the owner of said public square, and has no right to incumber it by erecting thereon a jail.

On notice and application for a preliminary injunction appellee appeared, and without filing any answer filed affidavits to contest said motion. On appearance of appellee, appellant moved the court for a rule on appellee to plead, answer, or demur to his bill of complaint before the hearing of the motion for a preliminary injunction, and also moved to strike the affidavits from the files. The court overruled both motions, and dismissed the appellant's bill at his costs.

[4] Appellant insists that the court erred in not striking the affidavits from the files and in refusing to rule appellee to first answer or plead to the bill; also that the court erred in considering the affidavits of appellee and dismissing appellant's bill. It is not correct practice in this state, where no answer or plea is filed to the bill, to receive or consider affidavits where a motion is made to dissolve an injunction. Such a motion would operate in the same way as a demurrer to the bill, and, being based on matters intrinsic and appearing on the face of the bill, no affidavits showing extraneousmatters could be used. After answer...