Truesdale v. the Peoria Grape Sugar Co..

• Decision Date: 31 March 1882
• Citation: 101 Ill. 561,1881 WL 14544
• Parties: WILLIAM TRUESDALE et al.v.THE PEORIA GRAPE SUGAR COMPANY.
• Court: Illinois Supreme Court

101 Ill. 561

1881 WL 14544 (Ill.)

WILLIAM TRUESDALE et al.

v.THE PEORIA GRAPE SUGAR COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Sept. 26, 1881.Rehearing denied March Term, 1882.

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Peoria county; the Hon. D. MCCULLOCH, Judge, presiding.

Mr. JULIUS S. STARR, and Messrs. COOPER & TENNERY, for the appellants:

While it is true that a city holds the fee of the streets, it is in trust for the benefit of the public, and the city authorities have no rightful power to alienate them or divert them to other uses. Carter v. City of Chicago, 57 Ill. 287; Stack v. City of East St. Louis, 85 Id. 379; Kreigh et al. v. City of Chicago, 86 Id. 407; City of Alton v. Transportation Co. 12 Id. 60; City of Quincy v. Jones, 76 Id. 23; City of Chicago v. Rumsey, 87 Id. 35. The cases sustaining the grant of the privilege to construct a railroad track in a public street, are placed upon the ground that railways are improved highways, and subserve the public good as such, which reason fails here. G. B. and W. R. R. Co. v. Hartley, 67 Ill. 443; Stack v. City of East St. Louis, 85 Id. 378.

The public are entitled to the use and enjoyment of the whole highway, and no individual can appropriate a portion of it to his own exclusive use. The King v. Russell, 6 East, 427; People v. City of St. Louis, 5 Gilm. 571; Hart v. Mayor of Albany, 5 Wend. 584.

As to the jurisdiction of courts of equity to prevent a nuisance, or obstruction of a highway, by injunction: People v. City of St. Louis, 5 Gilm. 571; Green v. Oakes, 17 Ill. 249; Corning v. Lawrence, 6 Johns. Ch. 439; Hills v. Miller, 3 Paige, 254; Chicago and Vincennes R. R. Co. v. People, 92 Ill. 170.

If by contiguity be meant actual contact, then the property of complainants can not be said to be contiguous; but this term, we conceive, is to be taken in a wider sense, so as to embrace property specially damaged by the obstruction. Green v. Oakes, 17 Ill. 250; Craig v. People, 47 Id. 487; Carter v. Chicago, 57 Id. 281; Corning v. Lawrence, 6 Johns. Ch. 254; High on Injunctions, sec. 528.

Messrs. PUTERBAUGH & PUTERBAUGH, for the appellee:

As to the power of a city to authorize the laying of a railroad track in and along its public streets, counsel cited Moses v. Pittsburgh, Ft. Wayne and Chicago R. R. Co. 21 Ill. 516; Murphy v. City of Chicago, 29 Id. 279; Stetson v. Chicago and Evanston R. R. Co. 75 Id. 74; Patterson v. Chicago, Danville and Vincennes R. R. Co. 75 Id. 588; City of Quincy v. Chicago, Burlington and Quincy R. R. Co. 92 Id. 23.

The laying of a railroad track upon a street will not be enjoined at the suit of an adjacent land owner, who simply owns up to the line of the street, and over whose land the road does not pass, where no special damage is shown to the complainant different from that to all the other property owners. High on Injunctions, secs. 522, 533; Bigelow v. Hartford, etc. 14 Conn. 565; O'Brien v. Norwich, etc. 17 Id. 372; Frink v. Lawrence, 20 Id. 117, and cases cited supra.

The rule requiring complainants to show a special injury peculiar to themselves, distinct from the general inconvenience experienced by the public, is inflexible. Corning v. Lawrence, 6 Johns. Ch. 439; McCowan v. Whitesides, 31 Ind. 235; Davis v. Mayor, 4 Kern. 506; Dawson v. St. Paul, etc. 15 Minn. 136; High on Injunctions, sec. 528.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

In view of the previous decisions of this court it will not be necessary to enter upon any elaborate discussion of the questions raised on this bill. Private individuals, owning property and carrying on business in the vicinity, seek to enjoin defendants from laying a side-track in the street in front of their own property, to connect with any railroad previously constructed in the street. It is alleged in the bill an ordinance was about to be passed by the city council of Peoria that would authorize defendants to do the acts the injunction was intended to prevent. Conceding, as the bill does, the ordinance of the city will warrant the action of defendants in constructing a railroad track in the street, it must be considered as definitely settled by the previous decisions of this court that equity will not entertain jurisdiction to restrain the contemplated act. It is not alleged any portion of complainants' lands will be taken or touched by the proposed railroad track, nor are complainants abutting land owners. Their property is in the vicinity, on the same street, but not adjacent to the proposed improvement. The railroad track is to be constructed on the street, the fee of which, it is conceded, is in the corporation granting the privilege to lay such track. When this bill was filed, the side-track was not then constructed. It was to be built under, and in conformity with, an ordinance of the city council. No direct injury would be done to complainants' lands, and at the utmost only consequential damages would be sustained. The nature and extent of such damages could only be ascertained after the completion of the work. It may be, if the ordinance granting the license shall be observed in the construction of the side-track, no serious detriment will result to complainants or others from its construction. But be that as it may, the track is to be constructed on lands not owned by complainants, and under a license from the only party having lawful authority to grant the privilege, and any expected damages that may be sustained by reason of the proposed work, can only be recovered in an action at law. Equity will not entertain jurisdiction to enjoin the proposed work. The rule of law on this subject is so well settled by previous decisions of this court, it is not deemed necessary to discuss it again as a new question. The following cases contain a full expression of the views of the court on the questions discussed by counsel in this case: Stetson v. Chicago and Evanston R. R. Co. 75 Ill. 74; Patterson v. Chicago, Danville and Vincennes R. R. Co. 75 Id. 588; Peoria and Rock Island Ry. Co. v. Schertz, 84 Id. 135; Cairo and Vincennes R. R. Co. v. The People, 92 Id. 170.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. JUSTICE MULKEY, dissenting:

I do not concur in the decision of this case. It is, in my judgment, a new and dangerous departure from well established fundamental principles. The necessary effect of it will be to invite encroachments upon public rights for the benefit of a favored few, and place such as are unable to protect themselves at the mercy of those who, by their power and influence, are able to control municipal legislation in obtaining grants of exclusive privileges, often to the detriment, and sometimes ruin, of their less influential neighbors.

It is true the fee of the streets is generally, as in the present case, in the corporation, yet they are held in trust for the people generally, and can only be used for the ordinary purposes of streets. They can not be lawfully used for any purpose which is not open alike to all classes of persons, without regard to whether they are powerful and influential, or otherwise. Any attempt on the part of municipal authorities to appropriate public streets, or any part of them, to the exclusive use or benefit of a mere private person or corporation, to the injury of neighboring proprietors, is a manifest breach of a public trust, and a flagrant outrage upon private rights, and a court of equity, in such cases, is the only forum that affords an adequate remedy. To say that equity will not interpose in such cases, to me seems like confounding all distinctions between equitable and legal remedies, and denying equitable jurisdiction in matters of trust,--a class of cases supposed by Story and other eminent authors to be cognizable in courts of equity only.

The present case is simply...