McPike v. Illinois Terminal R. Co., 14594.

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: McPike v. Illinois Terminal R. Co., 305 Ill. 298, 137 N.E. 235 (Ill. 1922)
• Decision Date: 08 December 1922
• Docket Number: No. 14594.,14594.
• Parties: McPIKE v. ILLINOIS TERMINAL R. CO.

305 Ill. 298

137 N.E. 235

McPIKE

v.ILLINOIS TERMINAL R. CO.

No. 14594.

Supreme Court of Illinois.

Oct. 21, 1922.

Rehearing Denied Dec. 8, 1922.

Error to Circuit Court, Madison County; George A. Crow, Judge.

Bill by John H. McPike against the Illinois Terminal Railroad Company. Decree for defendant, dismissing the bill for want of equity, and plaintiff brings error.

Affirmed.

Burton & Burton, of Edwardsville, and B. J. O'Neill, of Alton, for plaintiff in error.

H. S. Baker, of Alton, and Warnock, Williamson & Burroughs, of Edwardsville, for defendant in error.

STONE, J.

This is a bill to enjoin defendant in error from trespassing upon certain premises in the city of Alton, known as public city commons. The bill alleges that the defendant in error is seeking to build a railroad track on said premises, in violation of the rights of the plaintiff in error as lessee of a certain portion thereof, and of his rights as a citizen and taxpayer of the city of Alton and of all the citizens of Alton. The bill avers that the plaintiff in error is in possession of a certain portion of said tract of land under a lease from the city of Alton for a term of 25 years, with a privilege of renewal of the lease for a like period. Defendant in error filed its answer to the bill, denying that the lease of the plaintiff in error is a valid or binding lease, but averring that the lease is ultra vires the power of the city council of the city of Alton and is null and void. The answer alleges that defendant in error holds a franchise executed by the city of Alton for the use of certain of the premises described, for the purpose of constructing and maintaining thereon a railroad track; that said franchise is not in violation of the terms of the dedication of such land to the public as commons. The answer avers that plaintiff in error has no right to an injunction as a citizen and taxpayer of the city of Alton, for the reason that he has not alleged nor proven any special damage to him arising out of such use of the premises by defendant in error. A replication was filed to this answer and the cause was referred to the master in chancery, who reported as his conclusion of law that plaintiff in error was not entitled to the injunction prayed for under his lease, for the reason that the city council had no power to enter into the same; that he had no right to such injunction as a citizen and taxpayer of the city of Alton, for the reason that he had not shown any special damages to him. The master found that the franchise to the defendant in error is not a violation of the dedication of the premises in question as public commons. The chancellor overruled exceptions to the master's report, and approved the same, and dismissed the plaintiff in error's bill for want of equity.

The property in this dispute borders on the north bank of the Mississippi river, which flows from west to east at Alton. In 1850 Charles W. Hunter laid out the city of Alton. The platted certain blocks lying between Front street and the Mississippi river. In addition to the lands platted as blocks and lots, he dedicated as public city commons a tract of about 51 acres, also lying between Front street and the river. This tract was dedicated as ‘public grounds of the city, never to be owned as individual or private property.’ On November 1, 1902, plaintiff in error and the city of Alton entered into a lease by which a certain part, approximating about 31 acres, of the premises dedicated as public commons was attempted to be leased to the plaintiff in error for a term of 25 years at an annual rental of $10, with privilege of renewal for a like term of years at a rental to be agreed upon as provided in the lease. Plaintiff in error paid the rental on this property until 1910, when for 3 years he paid no rental. In 1914 he attempted to pay the back rent, which however, the city declined to accept, and thereafter refused to recognize any rights of plaintiff in error under the said lease, although no action has been taken to cancel the same. In February, 1917, the city council of the city of Alton granted a franchise to the defendant in error to construct and maintain a switch track over certain portions of the public commons sought to be held by plaintiff in error under his lease, and the defendant in error built thereon a side track or switch from its other lines to its docks on certain land fronting on the river.

The first question arising in this case is whether or not plaintiff in error, under the averments of his bill, is entitled to the injunction prayed. It has long been the settled law in this state that, where lands are dedicated to the public for particular purposes, they can be used for such purposes only. For...