Nelson v. Randolph

• Decision Date: 23 October 1906
• Citation: Nelson v. Randolph, 222 Ill. 531, 78 N.E. 914 (Ill. 1906)
• Parties: NELSON et al. v. RANDOLPH et al.
• Court: Illinois Supreme Court

222 Ill. 531

78 N.E. 914

NELSON et al.

v.RANDOLPH et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Circuit Court, Adams County; A. Akers, Judge.

Suit by John Nelson and others against George H. Randolph and others.From a decree dismissing the bill, complainants appeal.Reversed and remanded.

Carl E. Epler, for appellants.

Vandeventer & Woods, for appellees.

VICKERS, J.

John Nelson, George Simmermacher, and Peter Hartman, citizens of Keene township, in Adams county, filed their bill in equity, on behalf of themselves and all others having a like interest, to enjoin George H. and Catherine A. Randolph from obstructing and closing up a certain alleged highway extending from a public highway to the Woodville burying ground, and from interfering with the public in going to and from said burying ground, and to quiet the public in the use of said way.The circuit court sustained a general demurrer to the bill, denied leave to file certain proposed amendments, and rendered a decree dismissing the bill for want of equity, from which complainants prosecute this appeal.

While the bill was sworn to and the right to amend it did not exist as a matter of course, still appellants presented amendments that appear to be germane to the original bill, together with an affidavit giving a reasonable excuse why such matter was not inserted in the first instance, which is all that is required, under the practice, to warrant the allowance of amendments to a sworn pleading when such allowance is necessary to make the pleading sufficient and in furtherance of justice.Jones v. Kennicott83 Ill. 484;Campbell v. Powers, 139 Ill. 128, 28 N. E. 1062;Cooney v. Booth Packing Co., 169 Ill. 370, 48 N. E. 406;Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N. E. 238;Dilcher v. Schorik, 207 Ill. 528, 69 N. E. 807.If the allowance of the amendments would have made the bill one under which the appellants could have obtained the relief sought, or any equitable relief, the court should have allowed the amendments in furtherance of justice, and its refusal to do so is an abuse of the discretion which may be reviewed on appeal.It follows that if the bill stated a case for equitable relief, either with or without the proposed amendments, the court erred in dismissing it for want of equity.The determination of this question requires a statement of the substance of the bill, which here follows: The bill recites that in 1836Isaac N. Morris was the owner in fee of the N. W. 1/4 of section 2, township 2, range 7 W., in Adams county, and that in July of that year he caused to be surveyed and laid out into lots, squares, streets, and alleys the town of Woodville, and properly acknowledged said plat and caused the same to be duly recorded; that the streets and other public grounds were properly marked on the plat and were appropriated for the purposes designated.A copy of the plat is made an exhibit to the bill, and, since it will assist in making the facts more intelligible, it is here inserted:

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It is charged that Morris sold lots in said town of Woodville in accordance with said plat.In 1840 Morris sold all of said quarter section, except such part as has been conveyed by said plat to Eaton Littlefield.In 1844 Littlefield and wife executed a warranty deed to the trustees of schools in Woodville, and their successors in office, to a piece of land 13 rods square, and known as the ‘Woodville burying ground,’ together with the appurtenances thereunto belonging.It is charged that there was a mistake in the description in this deed, in that it describes the burying lots as commencing at the northeast corner of the Woodville lots, when it should be the northwest corner.The lot thus set apart as a burying ground is properly designated on the above plat, and is marked ‘Cemetery.’In 1847 Littlefield and wife conveyed the northwest quarter to Amos F. Herrick, except the platted town of Woodville and the burying lot.The bill alleges that said Littlefield dedicated the said burying lot to the public and that it has been used for a common public burying ground ever since it was so laid out.By mesne conveyances the title to the northwest quarter is traced to Dan H. Randolph, who acquired the title in 1854.All the conveyances expressly except the burying lot.In 1863Dan H. Randolph died, and appelleeGeorge H. Randolph obtained title to blocks 3, 4, 5, and 6, as shown on the plat, except lot 2, in block 6, the title of which is alleged to be in his wife, Catherine A. Randolph, by descent from his father or by conveyances from the other heirs of Dan H. Randolph.Appellees reside on lot 8, in block 3.Lot 8, in block 4, is known as the ‘school lot,’ on which a schoolhouse formerly stood, and was used for school purposes until about 30 years ago.It is charged in the bill that Market street, from it intersection with Main street, west to the west line of blocks 4 and 5, and from thence north over the edge of the land lying west of the cemetery lot, is now, and has been for 60 years, open and used as a road to and from the cemetery, and that there is no other road, way, or means of reaching the cemetery except as above described.It is charged that the public mowed off the cemetery twice each year and kept the same in repair, that the same is fenced, and that there is a gate maintained at the southeast corner.It is charged that each of the appellants has members of his family buried in the cemetery.It is alleged that about 20 years ago appellee built a fence across Market street about 10 rods from Main street and another fence about 10 rods further west, but that gates WERE PLACED IN THE FENCES, THROUGH WHICH the public continued to pass and repass without hindrance or obstruction; that about 13 years ago appellee built a barn or stable in the inclosed part of Market street and that he still maintains the fences and stable in said street; that after the expiration of 20 years from the time the fences were first placed across the street appelleeGeorge H. Randolph has forbidden appellants from passing through said gates to or from the cemetery, and has on several occasions violently and with force and arms assaulted persons who were passing or attempting to pass through said gates to bury the dead; that said appellee threatens to close up and lock said gates to prevent appellants and the public from going over said Market street to or from said cemetery; and that he will do so unless restrained by injunction.The bill prays for an injunction against the obstructing of said way, and that appellees be directed to remove said fences and stable, and all other obstruction, from said common way to the burying ground, and that the public be quieted in its possession and use of said burying ground and common way to the same.

1.The jurisdiction of a court of equity to enjoin the obstruction of a public highway at the suit of an individual who is directly and injuriously affected was recognized in the early case of Green v. Oakes, 17 Ill. 249, where it is said (page 251): ‘The remedy [for obstructing a public way] by injunction is perfect, and while it protects one from the injury all are alike benefited without the expense, delay, and multiplicity of actions incident to redress at common law; and where the facts are easy of ascertainment and the rights resulting therefrom free from difficulty equity will grant relief either at the suit of the public or of a citizen having an immediate interest therein.’See, also, Craig v. People, 47 Ill. 487;Snell v. Buresh, 123 Ill. 151, 13 N. E. 856.If it be conceded that, in order to maintain the action by an individual, it is necessary to show some special and peculiar injury which is not common to all public (which we do not decide), still the averments of the bill that each of the...