Field v. Barling

• Decision Date: 02 April 1894
• Citation: 149 Ill. 556,37 N.E. 850
• Parties: FIELD et al. v. BARLING et al.
• Court: Illinois Supreme Court

149 Ill. 556

37 N.E. 850

FIELD et al.

v.BARLING et al.¹

Supreme Court of Illinois.

April 2, 1894.

Appeal from circuit court, Cook county; Murray F. Tuley, Judge.

Bill for injunction brought by Henry A. Barling and others against Marshall Field, John M. Pashley, and others. Complainants obtained a decree. Defendants appeal. Affirmed.

Wilson, Moore & McIlvaine, for appellants.

Geo. L. Paddock (John J. Herrick, of counsel), for appellees.

CRAIG, J.

This was a bill brought by Henry A. Barling, Edward H. Green, and Edward D. Mandell, trustees under the will of Edward Mott Robinson, deceased, against Marshall Field et al, to enjoin them from building or constructing any building bridge, passageway, or other construction on, upon, or across the alley known as Holden place or court, between the north line of Washington street and complainants' property described in the bill. The block in the city of Chicago bounded by Wabash avenue, Randolph, State, and Washington streets, is known as block 13 of Ft. Dearborn addition to Chicago. The land, when platted, belonged to the United States, and the plat of Ft. Dearborn addition was executed and recorded in June, 1839. The following plat shows State street, Washington street, and Wabash avenue, and Randolph street as originally laid out; also Holden place. The plat also shows the location of complainants' property, and the location of Field's old building, and the new one, and the point where it was proposed to erect the bridge across Holden place, connecting the two buildings.

Holden place, as will appear from the plat, is 40 feet wide, extending north and south, through blocks 13 and 14, with lots on each side; those on the east fronting on Wabash avenue, those on the west fronting on State street. Holden place has been used as a public place or street for many years. The defendants' lots on the northeast corner of Washington and State streets, have a frontage of 160 feet on State, extending back to Holden place, covered by a six-story building, occupied by Marshall Field & Co. for several years as a dry-goods house. The defendants have acquired lots on northwest corner of Wabash avenue and Washington street, with a frontage of 108 feet on Wabash avenue, extending back to Holden place. On the latter lots the appellants commenced the erection of a new building, nine stories high. At the time of the filing of the bill, the new building had been erected six stories high, and the appellants were about to commence the erection of a bridge or passageway over Holden place, connecting the old and new buildings. The bridge or passageway, as disclosed by the answer, was to be 18 feet above the surface of Holden place, 3 stories in height, extending north from Washington street over the alley, the entire width of the alley, the distance of 45 feet and upward, 55 feet or 73 feet above the ground.

It is charged in the bill that ‘the effect of said construction of such connecting puilding, if the same be not prevented by this honorable court, will be to deprive your orators' said building and the occupants thereof, to a great extent, of sunshine, light, air, and warmth, which they have hitherto enjoyed, by reason of the opening and keeping open of said court or alley from the time of said platting and subdivision down to the present; will give said alley an appearance of a private gateway and passage; will hinder and deter traffic, and in many other ways cause serious and continuing damage to your orators and their property; that such damage will amount to many thousands of dollars, and will be beyond legal remedy or relief, if not prevented by this court.’ It is also alleged that orators and Marshall Field & Co. and the other defendants held their respective lands on said block 13 under a common source of title, viz. the United States, by patents made by the United States in pursuance of a subdivision plat and sales by the United States: ‘that by reason of the exhibition and publication of the said subdivision and plat, and by the sale of lots thereunder to the respective grantors of your orators and the said defendants Marshall Field & Co., or said Marshall Field, for their use, there has resulted, as between your orators and the said Marshall Field & Co., or such of them as own the said properties so fronting south on Washington street, on either side of said alley, a right in law to have the said alley remain absolutely and wholly open forever, of the same dimensions and to the same extent as delineated by the United States upon the subdivision and plat aforesaid, viz.: from the north line of Washington street, 40 feet in width, to the south line of Randolph street, and upwards to the sky.’ In the answer the appellants admit the intention to build the proposed bridge or structure over and across Holden place, but deny that it will interfere with the light, air, and ventilation of complainants' premises, or that it will in any manner injure complainants. The appellants also set up and rely upon an ordinance set out in complainants' bill, passed by the city of Chicago June 6, 1892. Section 1 of the ordinance is as follows: ‘Be it ordained by the city council of the city of Chicago: Section 1. That permission and authority be and is hereby given to John M. Pashley and his assigns to construct and use a bridge or covered passageway across the alley running between lots 9, 10 and 11 on one side, and lot 6, in assessor's subdivision of lots 6, 7 and 8, etc., on the other, all in block 13 Fort Dearborn addition to Chicago: provided, the lowest portion of said bridge or passageway shall not be lower than eighteen feet above grade of alley, and shall be so constructed that free and unobstructed passage may be had under the same: and provided, that said bridge or passageway shall be constructed of incombustible material and to the satisfaction of the commissioner of buildings.’ Section 2 provides that Pashley, or his assigns, and all persons who shall occupy the buildings which the bridge is to connect, shall indemnify and save the city of Chicago harmless from all damages which it may become liable for by reason of the passageway granted.

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It will not be necessary to cite authorities in support of the proposition that a private individual cannot appropriate to his own exclusive use a portion of the surface of a street dedicated to the public use. Before Holden place was dedicated to the public as a street, the title of the United States, the original proprietor, was not confined to the surface of the ground, but its title extended upward, embracing the light and air as well as the soil; and the dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil. In Barnett v. Johnson, 15 N. J. Eq. 481, where it was proposed to obstruct light and air over ground dedicated to the public it is said: ‘When the strip of land is declared a public highway, the adjoining owner has the right to light and air from it. The column of light and air above the roadbed, whether of land or water, is as much a part of the highway as the roadbed itself. Take them away, and there would be left no public passage. By its being declared a highway by the sovereign power, the light and air above it become again the common property of all, which all may breathe and use whenever they may legally touch it, whether in the road or along its sides. * * * When cities and villages have been built up along a public highway, the right to light and air from it become vested, and even the legislature would have no more right to deprive them [abutting owners] of it without compensation than they would have to draw off the water from a navigable stream.

But the city of Chicago passed an ordinance which purported to authorize the construction of bridge or passageway, and it becomes competent to argue in what manner the ordinance affected the rights of the parties in interest. The ordinance does not purport to grant the right for any public purpose. The use to be made of the street is a private one, solely for appellants' benefit in the transaction of their private business. Clause 7, § 62, c. 24, Rev. St., confers power on cities organized under the general incorporation act, as is the city of Chicago, to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharfs, parks, and public grounds, and vacate the same; but there is nothing in this section of the statute, or in any other portion of the general incorporation act, which confers the power on the municipality to devote a street, or any part thereof, to a mere private use. By the making of the plat in conformity to law, there was a statutory dedication. The fee of the street passed to the city of Chicago, but the city held the fee in trust for the public, and for no other purpose. While the city had ample power to control, regulate, and improve the street in such manner as the demands of the public required, the law conferred no authority on the city to devote the alley to private uses. In the late case of Smith v. McDowell (Ill. Sup.) 35 N. E. 141, where a city passed an ordinance to vacate a portion of a street for the purpose of allowing a private individual to use that portion for a part of a building about to be erected, it was held that the city had no power to devote the streets to that purpose. It is there said: ‘The municipality, in respect of its streets, is a trustee for the general public, and holds them for the use to which they are dedicated. The fundamental idea of a street is not only that it is public, but that it is public in all its parts, for free and unobstructed passage thereon by all persons desiring to use it. In Alton v....