The Vill. of Brooklyn v. Smith

• Decision Date: 29 September 1882
• Citation: 44 Am.Rep. 90,1882 WL 10433,104 Ill. 429
• Parties: THE VILLAGE OF BROOKLYNv.JAMES A. SMITH.
• Court: Illinois Supreme Court

104 Ill. 429

1882 WL 10433 (Ill.)

44 Am.Rep. 90

THE VILLAGE OF BROOKLYN

v.JAMES A. SMITH.

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 29, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

The bill in equity in this case for an injunction, filed December 27, 1879, sets out that on the 23d day of December, 1876, James A. Smith, the complainant, leased all that part of United States survey No. 764, in St. Clair county, Illinois, which lies west of Water street, in the town of Brooklyn, and extending to the center thread of the Mississippi river, from James Purdy and wife, they then being in the actual possession thereof; that complainant then took possession of said tract of land, and placed on the shore of said river the necessary works to carry on his business of gathering ice from the river, and had gathered the crops of ice for the winters of 1876-77, and 1878-79, there being no ice crop fit to gather in the winter of 1877 and 1878; that complainant had made all the necessary arrangements to gather the present ice crop formed and forming on said land leased by him, at great trouble and expense, and had taken possession of the ice, staked it out, and his servants were engaged in marking it out for cutting; that if he was hindered from such work he would suffer irreparable injury; that the village of Brooklyn had arrested complainant's servants, and threatened to continue arresting them, and had sent one Joseph Voise to interfere with complainant, and to cut ice on his said land, and that said Voise threatened to enter upon and cut said ice, while the village protected him by its police force, and by the continuous arrest of complainant's employés; that none of said lands or ice were within the limits of said village of Brooklyn. The village of Brooklyn and Voise were made parties defendant, and the bill asked that they, their officers and servants, be enjoined from in any manner interfering with the complainant in and about gathering the ice crops on all that part of the Mississippi river lying west of Water street, of the village of Brooklyn, or included in United States survey No. 764, and from entering thereupon to cut, or from cutting, ice thereon, or from arresting or in any other manner prosecuting the complainant, his servants, agents or employés, in carrying on his business. Upon the filing of the bill a temporary injunction was granted. The answers of the defendants denied the possession, or any right of Purdy or complainant, insisting they were but mere trespassers; denied that there was any land between the west line of said Water street and the river, and insisted that Water street was bounded by the river; that the premises in question formed a part of Water street, and were within the corporate limits of the village of Brooklyn, and that any arrest, or threatened arrest, of complainant's servants, was for the violation of an ordinance of said village in relation to the interference with, or obstruction of, the public landing or streets of such village. Upon final hearing, on proofs taken, a decree was entered in favor of the complainant, making the injunction perpetual, which, on appeal to the Appellate Court for the Fourth District, was affirmed, and a further appeal then taken to this court.

It appears that the town of Brooklyn was laid out in 1837, by the five proprietors, Collins, Austin, Tabor, Morris and Osborn, on the east bank of the Mississippi river, in St. Clair county, The town was surveyed and platted, and the plat recorded. The proprietors had a public sale of lots the next year, and disposed of some lots, and, as one witness says, eventually sold the lots out, from time to time. In 1839 several houses were erected on the lots, and in 1840 quite a number of houses had been put up. The witness Stiles stated that he moved there in 1841, and that there must have been between forty and fifty families, and that there was quite a village there at that time; that he bought lots of Osborn, one of the proprietors, and they sold lots from time to time to different parties; that at that time he crossed the river in the ferry boat “Brooklyn;” that Water street then ran parallel with the river, and to the water's edge, and steamboats came there and loaded.

In 1845 the General Assembly passed an act, “that the entire town plat of the town of Brooklyn, as laid off and recorded, is hereby declared to be vacated: Provided, this act shall not interfere with or prejudice the rights of any individual or individuals who may have become the purchaser of any lot or lots in the aforesaid town.” In 1873 the village was incorporated under the general law, embracing the old town and some additional territory. It had not been incorporated before that time.

Extensive accretions had formed on the river front of the town, comprising an area of one hundred acres or more. In the latter part of the year 1873, Louisa J. Purdy, the wife of James H. Purdy, took possession of this ground, claiming to be owner, as her husband says, under deeds from the heirs of Thomas Osborn, made in the years 1873, 1874, 1875, and, possibly, 1876. Mrs. Purdy enclosed the ground on three sides, with a fence composed of a board nailed on posts, and put up on the land a board shanty. Part of the fence was washed away the next spring of 1874, and in 1876 what remained of the fence and the shanty was entirely carried away by the high water. From 1873 Mrs. Purdy kept the ground leased to successive tenants, from time to time, till December 23, 1876, when Mrs. Purdy and her husband, James H. Purdy, who was a lawyer in St. Louis, leased the premises to the complainant, an ice dealer in St. Louis, for the term of ten years. On December 16, 1879, the village authorities passed an ordinance “to prevent encroachments on the river front,” making it a misdemeanor, punishable with fine, for any person to trespass or encroach upon or interfere with that part of the river front of the town lying between the easterly line of Water street and the center of the Mississippi river, for the purpose of controlling the formation of ice by artificial means, or for the purpose of cutting or taking away ice, or for any other purpose, without permission from the board of trustees, and making it the duty of the village constable to arrest all persons found violating the ordinance, upon view, and take them before the proper magistrate, to be dealt with, etc. It was under this ordinance that the arrests complained of were made, or threatened to be made. The ground was a sand-bar, which was overflowed every spring, and all the use made of it was for the purpose of taking the ice.

The original recorded plat of the town shows a tier of blocks, six in number, on the west side, and in front of them a street, designated Water street. The surveyor's certificate states the width of this street to be eighty feet.

William H. Cohens, a civil engineer, residing in St. Louis, testified that in the spring of 1837 he was employed by Collins and Tabor, two of the five proprietors, to lay out the town of Brooklyn, in Illinois, fronting on the eastern bank of the Mississippi river; that he surveyed and platted the town, and got the county surveyor of St. Clair county to verify and adopt his work, so that it might go of record; that the latter did so, and the plat was recorded, and the witness recognized the recorded plat in evidence as the one he made. He says that Collins and Tabor visited the land with him, and designated the work to be done; that Water street “was located on the high bank, and extended from the front of the town to the bank of the river, and followed the course of the river from north to south, and was on an average about eighty feet wide, sometimes more, on account of irregularities of the river bank; all the land west, extending westwardly from the front of the blocks fronting towards the river, was considered Water street, whatever that might be.” Upon the plat is the following, signed by the proprietors: “We, the undersigned, proprietors of Brooklyn town, in disposing of and recording said lots and streets, reserve to said proprietors the exclusive right to all ferry privileges to us, our heirs and assigns forever.” Upon the incorporation of the village, in 1873, the board of trustees employed one Ludwig to re-survey the original town of Brooklyn, which he did, and made a plat, which was accepted and adopted, and recorded. Upon this plat the western boundary of Water street appears to be a straight line, which touches the river at only one point, showing considerable space between such line and the river. The defendant Voise had permission from the village authorities to take the ice, and men under him had marked off the ice, and put a platform there, with the view of cutting and taking the ice before the complainant came there for that purpose.

Mr. WM. P....