Smith v. McDowell

• Decision Date: 26 October 1893
• Citation: 35 N.E. 141,148 Ill. 51
• Parties: SMITH et al. v. McDOWELL.
• Court: Illinois Supreme Court

148 Ill. 51
35 N.E. 141

SMITH et al.
v.
McDOWELL.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from circuit court, Livingston county; Thomas F. Tiptin, Judge.

Bill for injunction by H. H. McDowell, as state's attorney, upon the relation of M. H. Hall and William Cowling, residents, citizens, and electors of Chatsworth, in their own behalf and that of all other inhabitants of Chatsworth and the public at large, against James A. Smith and the village of Chatsworth. Decree for complainant. Defendants appeal. Affirmed.

[148 Ill. 56]

[35 N.E. 142]

Strawn & Norton, for appellants.

148 Ill. 59]N. J. Pillsbury, for appellee.
The other facts fully appear in the following statement by SHOPE, J.:

[148 Ill. 54]This was a bill in chancery, filed by H. H. McDowell, state's attorney in and for Livingston county, this state, on the relation of M. H. Hall and William Cowling, citizens and electors of the village of Chatsworth, in said county, on their own behalf, as well as the general public, to restrain the construction of a purpresture, consisting of an area way and stairs therein, in one of the principal streets of said village. The bill alleges, in substance, that on June 8, 1859, the then proprietors of certain described lands surveyed and platted the same into lots, blocks, streets, alleys, and public grounds, as the town of Chatsworth; that said town afterwards became incorporated under the general law, as a village; that by virtue of said plat, and the terms of dedication in the acknowledgment thereto, and the recording thereof, all the said streets, etc., became dedicated to the use of the public, and have ever since been so used; ‘that in said village is a public street, named ‘Fourth Street” on said plat; that the president and board of trustees of said village ‘have undertaken, by ordinance, to dispose of’ a portion of said street ‘for private purposes and uses;’ and an ordinance of the village is set out, as follows: ‘An ordinance to vacate part of Fourth street in the village of Chatsworth. Be it ordained by the president and board of trustees of the village of Chatsworth, that to enable the owners of lot nine, (9,) in block twenty-two, (22,) in the original town (now village) of Chatsworth, to erect and maintain a brick building on said not nine, (9,) with an area and entrance way to the basement of such building in said Fourth street, on the west side of such building, the part of said Fourth street in said village of Chatsworth beginning at the southwest corner of said lot nine, (9,) and running thence west five (5) feet in said Fourth [148 Ill. 55]street, thence north in said Fourth street eighty-five (85) feet, thence east five (5) feet, to the east line of said Fourth street, and thence south eighty-five (85) feet to the place of beginning, be, and the same is hereby, vacated. Approved September 8, 1891. James A. Smith, President. Attest: John Taggert, Village Clerk.’ It is further alleged, in substance, that said lot 9, of which said Smith is the owner, is located on the corner of Fourth and Locust streets, principal thoroughfares in said village, and that the sole purpose and object of said ordinance was to give to said Smith the 5 by 85 feet vacated, for an area and stairways, in connection with the basement of his building being erected on said lot, and that to permit the construction of such area and stairways in said street will create a purpresture therein, and a permanent obstruction thereof; that it will be a public nuisance, and permanently deprive the public of that portion of the street, so given to Smith, over which the public has hitherto traveled upon a sidewalk along said lot. The bill makes said James A. Smith and the village parties defendants; prays that the ordinance be declared void, and that said Smith has acquired no right thereunder, and, if any excavation or area has already been made, that same be declared a nuisance, and abated accordingly; prays injunction restraining said Smith from excavating in said street, and from constructing and maintaining said area and stairways, and from using said street for such private purpose, and that the injunction be made perpetual. A temporary injunction issued. Answer was filed, admitting all the material allegations of the bill, but averring new matters, to which exceptions were filed and sustained, and by consent the parties proceeded to a hearing upon the bill and the remaining portions of the answer to which exceptions had not been filed and sustained. This practically treated the allegations of the bill as true. The court below entered decree in favor of complainant, finding the ordinance void, and awarding a perpetual injunction. The defendants prosecute this appeal.

[148 Ill. 60]SHOPE, J., (after stating the facts.)

The important question presented by this record is whether, under the statute, giving municipal corporations control of the streets and alleys within the municipality, power exists in the corporate authorities to vacate a street, or a portion of a street, for the benefit and use of a private person. It is charged, and the answer practically admits, and indeed the ordinance on its face purports, that the attempted vacation of a strip, 5 feet wide and 85 feet long, off of the side of the street, was for the single purpose of permitting its use by appellant Smith, president of the board of trustees...