179 Ill. 214 | Ill. | 1899
delivered the opinion of the court: The first question to be considered is whether the court erred in dismissing complainants’ bill on defendant’s cross-motion. The record shows the cause came on to "be heard upon the bill with its amendments, the answer and its amendments, and the replication, for a temporary injunction, and a cross-motion by the defendant to dismiss for want of equity appearing on the face of the bill. There was nothing before the court but the bill, answer and replication, and it is a well settled doctrine in chancery that if it appears on the face of the bill there is no equity in it, and no sufficient grounds are disclosed therein why a court of equity should interfere, the bill will be dismissed. (Edwards v. Beaird, Breese, 70; Winkler v. Winkler, 40 Ill. 179.) The trial court treated the cross-motion as a demurrer and dismissed the bill for want of equity appearing on the face of the bill. This practice was proper, as held by this court in Heinroth v. Kochersperger, 173 Ill. 205.
Appellants insist that the effect of the motion was to admit all of the facts alleged in the bill and to call for the judgment of the court thereon as to their legal sufficiency. In Daniell on Chancery Practice (vol. 1, 566-568,) it is said: “A demurrer confesses those matters which are well pleaded,—i. e., matters of fact. It does not, therefore, admit any matters of law which are suggested by the bill or inferred from the fact stated, for, strictly speaking", arguments or inferences or matters of law ought not to be stated in the pleadings, although there is sometimes occasion to make mention of them for convenience or intelligibility of the matter of fact. * * * Nor will an inference be admitted which is repugnant to the fact stated or not supported by it; nor will it admit as a fact a statement contrary to that of which the court takes judicial notice, and such averment must be treated as a nullity.” In Newell v. Bureau County, 37 Ill. 253, this court said: “The rule is, as we understand it and have repeatedly stated, that the effect of a demurrer is to admit all the facts properly pleaded, but not inferences of law from those facts.—Stow v. Russell, decided at April term, 1864; 1 Daniell’s Ch. Pr. 601; Mills v. Brown, 2 Scam. 548.” See, also, Arenz v. Weir, 89 Ill. 25, and Greig v. Russell, 115 id. 483.
The allegation in the bill and its amendments is, that the village of East Peoria, the appellee, was making and about to complete an artificial or new chamiel for a stream known, as “Farm creek,” so as to carry and turn the course of said Farm creek and its tributaries, and the surface water of the surrounding country, through said new channel into the Illinois river, instead of allowing it to go through the natural channel, as heretofore, the new point of discharge being opposite the city of Peoria, at a point different and other than the natural place of discharge of the waters of said Farm creek; that the artificial channel, when completed, if not prevented by injunction, will discharge a vast amount of sand, silt, sediment, debris and other alluvial matter, and thereby create a bar or barrier in the navigable channel of said river that will prove to be an obstruction to the navigation of the river and a public nuisance. The facts set forth in the bill were not sufficient to warrant the granting of a perpetual injunction.
Under section 6 of article 1, chapter 24, of the Revised Statutes, the court will take judicial notice that the village of East Peoria is organized under the general Incorporation law, relating to cities and villages. This provision is mandatory upon the courts of this State, as held in City of Rock Island v. Cuinely, 126 Ill. 408. It is set up in the answer and conceded that Farm creek runs through the village of East Peoria.
Under clause 30 of section 1 of article 5 of the City and Village act power is given the city council in cities and the president and the board of trustees in villages, “to deepen, widen, dock, cover, wall, alter or change the channel of water-courses,” and by paragraph 334 of the same act corporate authorities are “vested with power to construct drains, ditches, levees and dykes, to erect pumping works, and to acquire the necessary land and machinery for such purposes, and otherwise to provide for draining any portion of the lands within their corporate limits, by special assessment upon the property benefited thereby.” (Hurd’s Stat. 1889, p. 305.) This statute constitutes appellee a drainage district, as held in Village of Hyde Park v. Spencer, 118 Ill. 446. The powers thus granted by this statute gave the municipality authority to extend the drain or sewer beyond the corporate limits for the purpose of obtaining a proper outlet, and having that power, it may acquire land to construct the sewer. (Shreve v. Town of Cicero, 129 Ill. 226; Callon v. City of Jacksonville, 147 id. 113.) The village of East Peoria was in the exercise of a legal right, and where the .municipal authorities are acting within their well recognized powers, or are exercising a discretionary power, a court of equity has no jurisdiction to interfere, unless the power or discretion is being manifestly abused, as this court held in Brush v. City of Carbondale, 78 Ill. 74, and approved in City of Mt. Carmel v. Shaw, 155 id. 37.
The general grant of power to corporate authorities to alter or change water-courses and to construct drains carries with it, by necessary implication, all other powers necessary to make the grant effective and to accomplish the results intended. The Illinois river, while it is a navigable water, is also the natural outlet for the drainage of a large territory, with many other rivers and streams emptying their waters into and flowing" through its channel, and among the smaller streams is Farm creek. Of these rivers and creeks, and of the fact that they carry large quantities of sand, sediment and debris into the Illinois river, and have for ages, the courts will take notice, and that still the Illinois river is a navigable river.
Farm creek is a natural water-course emptying into the Illinois river, and appellee has enlarged the channel by deepening, widening and straightening it, and has followed the natural and original channel, for the purpose of preventing" its overflow, during" freshets, upon the streets of the village of East Peoria. Appellee having the legal right to construct a drain, it had the right to extend it to the Illinois river, unless it used that right oppressively and so as to make it a nuisance and to unreasonably interfere with the navigation of the river. The bill does not allege that a larger amount of water, with its accompanying sand, silt, sediment, debris or other alluvial matter, would be discharged into the river through the artificial channel than had been before discharged through the natural channel of Farm creek, neither is there anything to show that the tendency to fill up the channel and form bars will be any greater than formerly,—and this, as held by the Appellate Court, justified the circuit court in dismissing the bill for want of equity appearing on its face.
Can the appellants maintain this suit in their official name, as canal commissioners? The bill purports to be a bill in behalf of appellants as canal commissioners of the Illinois and Michigan Canal, and not in behalf of the People of the State of Illinois. In Daniell on Chancery Practice (322) it is laid down as one pf the rules of chancery practice that the complainant must show a right to the thing' demanded or such an interest in the subject matter as gives him a rig'ht to institute a suit concerning it, otherwise the defendant may demur. If a bill was required in behalf of the State to restrain the creation of a public nuisance in a navigable stream, it should be brought by an information in equity in the name of the People of the State of Illinois, by the Attorney General. (Angell on Water-courses,—6th ed.—sec. 565, p. 753; Bispham’s Principles of Equity, sec. 439.) In Eden on Injunctions, (262) the author says: “It is now settled that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the Attorney General, though the jurisdiction seems to have been acted upon with great caution and hesitancy,”—citing Attorney General v. Cleaver, 18 Ves. 211.
We deem it unnecessary to refer to the many acts relating' to the Illinois and Michigan Canal passed from 1829 to 1872, for the reason that the act of 1874, (Rev. Stat. chap. 19, p. 188,) which is now in force and under which the present board of canal commissioners derives its authority, purports to be a revision of the law in relation to the Illinois and Michigan Canal and for the improvement of the Illinois and Little Wabash rivers. The acts of February 28, 1867, and February 25, 1869, were expressly repealed by the general repealing act of 1874. The act of 1873, which authorized the board of canal commissioners to construct a dam and lock at or near Copperas creek and to make an appropriation for such improvement was not repealed by this general repealing act, but was left in force, because the period for the appropriation therein provided for would not expire until after the adjournment of the next regular session of the General Assembly. That appropriation was renewed and extended by the act of April 8, 1875, (Laws of 1875, p. 6,) and the canal commissioners were authorized, as soon as the lock and dam should be completed, to make uniform rates of toll, and to collect the same in the same manner as they collected toll from the lock at Henry, and it was this act that gave the commissioners jurisdiction over the Copperas creek dam. The act of 1874, in force July 1, 1874, aptly expresses in its title that it is “An act to revise the law in relation to the Illinois and Michigan Canal and for the improvement of the Illinois and Little Wabash rivers.” This statute being a revision of all laws at that time relating to the Illinois and Michigan Canal and the improvement of the Illinois and Little Wabash rivers, must be regarded as a repeal of all former laws and a substitute for those repealed. In Culver v. Third Nat. Bank of Chicago, 64 Ill. 528, this court said (p. 534): “There is, however, another principle which must settle this question, and that is, a subsequent statute revising the whole subject of a former one and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former. (Bartlett v. King, 12 Mass. 537; Towle v. Mavett, 3 Greenl. 22; Nichols v. Squire, 5 Pick. 168.) These cases are cited in the case of Board of Trustees of Illinois and Michigan Canal v. City of Chicago, 14 Ill. 334, with approbation, and such will be found to be the doctrine of the books.” (See, also, Devine v. Commissioners of Cook County, 84 Ill. 590, and Andrews v. People, 75 id. 605.) This act of 1874 being a revision of the law in relation to the Illinois and Michigan Canal and for the improvement pf the Illinois and Little Wabash rivers, was intended by the legislature as a substitute for the previous acts.
Appellants claim that the canal commissioners, as public officers, have authority to maintain this proceeding. Appellants must therefore, if they have jurisdiction over the navigable portions of the Illinois river, acquire it by virtue of this statute. Section 3 of the act of 1874 provides: “For all legal purposes the said commissioners shall be deemed officers of the State, and all deeds, contracts, writings and acts may be made and suits prosecuted by them in the name of the canal commissioners, but they shall not be considered as a distinct corporation or be liable to be sued.” By this statute the canal commissioners, are not a distinct corporation, but they are mere public officers with limited powers. Their powers are confined by section 8 to the “control and management of the Illinois and Michigan Canal, including its feeders, basins and appurtenances and the property thereto belonging, and all locks and dams and other improvements of the navigation of the Illinois and Little Wabash rivers.” The powers so granted are by paragraph 2 of said section 8 to “apply as well to that part of the south branch of the Chicago river within one thousand feet of the lock at Bridgeport, and to the canal basin at and near the termination of the canal on the Illinois river, and to that part of the Illinois and Little Wabash rivers above and below the several locks and dams, within one thousand feet thereof, and to all feeders, basins and laterals, as to the canal, locks and dams.”
There is nothing in the act which shows that it was the intention of the legislature to confer upon the canal commissioners jurisdiction over the whole of the navigable portion of the Illinois river, but the statute has defined the limits of their jurisdiction relating to the canal, and to that part of the river above and below the several locks and dams, within one thousand feet thereof. Undoubtedly the object of this extending of the jurisdiction above and below the locks and dams was to give effect to the rules and regulations which the commissioners were authorized to make in respect to all matters connected with the navigation and use of the" canal, locks and dams, and transportation on or through the same, to a sufficient distance above and below the canal and the locks and dams to protect the property of the State and to regulate and control the movements of boats in approaching and leaving the same, and to control the movements of all persons in their immediate vicinity with reference to their use of the property of the State. Under “Duties of Commissioners, ” (par. 1, sec. 9,) the commissioners are required to take all necessary proceedings on behalf of the State to establish the title of the State and recover possession of any canal lands or real estate which may be claimed by or be in the adverse possession of another, and to cause appropriate suits to be instituted in the name of the People of the State of Illinois. Under paragraph 2 of the same section they are authorized to take proceedings in their “official name” to ascertain the compensation for entering upon, using, overflowing or damaging any contiguous lands, in making repairs, building or constructing any dam, lock or other improvement, in the manner and at the time provided by law for the exercise of the right of eminent domain. By paragraph 3 they are authorized “to cause suits to be commenced and prosecuted against all persons trespassing upon the said canal, locks or dams, or any of the canal lands belonging to the State, and for that purpose they may require the services of the State’s attorney of any county in which such suits may be prosecuted.” These suits for trespassing upon the canal locks, dams or canal lands belonging to the State, are the only ones authorized to be prosecuted by appellants, the canal commissioners. Under the head of “Penalties,” in said act, there are ten sections (15-25) which impose penalties for certain offenses committed upon the canal and canal lands. It is then provided in section 26: “The eleven preceding sections shall appty as well to all locks and dams that are or may be constructed upon the Illinois and Little Wabash rivers, and all feeders, as to the canal known as the Illinois and Michigan Canal.” There is nothing in the entire act that makes the Illinois river a part of the canal, or that extends the jurisdiction of the canal commissioners over the river, except as stated in paragraph 2 of section 8. The evident intention of the legislature was to give the canal commissioners control of the canal, its feeders, basins, locks and dams, and one thousand feet of the river above and below the locks and dams, but it was not intended to give them control of any other part of the river. The “improvements” must be construed as referring to those works of improvement as the canal, its feeders, basins, etc., the dam and lock at Henry and the dam and lock at Copperas creek, together with one thousand feet above and below them.
The powers of the canal commissioners being limited to the Illinois and Michigan Canal, including its feeders, basins and appurtenances, and to the works of improvement,—the locks and dams of the Illinois river,—appellants cannot maintain this suit in their official name, as canal commissioners, for a public nuisance committed to the navigable portion of the river outside of their jurisdiction. This must be brought by an information in equity, in the name of the People of the State of Illinois by the Attorney General.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.