76 Ill. App. 536 | Ill. App. Ct. | 1898
after making the foregoing statement, delivered the opinion of the court.
This court, in Nusbaum v. Locke, 53 Ill. App. 244, speaking of the issuance of an injunction without notice, said “ the well settled rule is that notice of the application must be given unless it is clearly necessary to act without notice,” and held that the facts upon which the pleader’s conclusion was based, that there was imminent danger to complainant, should be stated, so that the court could see that the apprehension was well founded. To the same effect are Brough v. Schanzenbach, 59 Ill. App. 409; Becker v. Defebaugh, 66 Id. 504, and No. 7665, Henderson v. Flanagan, of this court, not reported.
In the Defebaugh case the court said: “ The appellee was and is not entitled to any consideration of his applica- , tion unless he first comply with the statute, by giving notice of making it6 appear ’ to the court, judge or master, to whom the application is made, by a sworn statement of facts, either in the bill, accompanying affidavits, or both, from which the conclusion can be drawn that the rights of the complainant will be unduly prejudiced,” etc.
The injunction here, without notice, being based upon the allegations of the sworn bill alone, was, wTe are inclined to think, improper, because no sufficient facts are alleged from which it can be said that it was clearly necessary, in order to prevent undue prejudice to appellees, or any serious injury to them.
It does not appear how soon the poles could have been erected and the wires strung, nor if that were done, after notice given and before the court could hear the application, what would be the injury to appellees. The extraordinary remedy of injunction without notice should not be allowed, except in extreme cases, and as a general rule may be avoided where there is apprehension on the part of a complainant that he may be deprived of the benefits of the injunction he seeks by some action of defendant after notice is served and before the application can be heard, by giving notice of an immediate application to the chancellor, when, if there can not be a hearing at once, the chancellor may require matters to remain in statu quo pending the hearing, by a stay order, or issue the injunction instan ter, and give defendant a hearing upon motion to dissolve. There appears to us no reason why such a course could not have been pursued in this case.
The case being doubtful as to the matter of notice, we do not decide that point, and proceed to the merits of the bill, which we think insufficient to justify an injunction.
It was conceded by counsel for appellees, in oral argument, that if Michigan avenue is a street, then the bill can not be maintained; but they say that the theory of the bill that Michigan avenue is a part of Lake Park, and that under the decisions of the Supreme Court in City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540, and City of Chicago v. Ward, 169 Ill. 392, the city of Chicago held the park in trust for the benefit of appellees, as owners of lots abutting upon it, and had no power to grant appellant the right to use Michigan avenue, it being a part of the park, for the purpose of operating a railway thereon by an electric overhead trolley system.
It is elementary, and no authority need be cited to sustain the proposition, that the pleader must state in his pleadings facts, not conclusions.
Appellees claim their .right to an injunction in this case, because they say a trust in Lake Park. (which - includes Michigan avenue) was created for their benefit, of which the city of Chicago is-trustee. '
They allege that their lots front east on Michigan avenue and Lake Park, in Fort Dearborn addition to Chicago; that. Lake Park, between the east line of their lots- and- Lake Michigan, was dedicated to use of the public by the Government of the United States, “ not to be occupied with buildings of any description,’’-.and that the original plat of Fort Dearborn- addition, in .accordance with which said lots were sold,-dedicating-the land east of said lots clear to the waters of Lake Michigan as public ground, not to be occupied with buildings of any description, and that said land, known as Michigan avenue and Lake Park,, lying east of said lots and extending from Madison street on the south to Eandolph street on the north, has been held and declared by the SupremeCourt of this State by its decision, rendered at a time, named in a case named, to be dedicated to the-public for park purposes, and for park purposes only,- and that the city holds the title-thereto in trust only- for such purposes, and that no encroachments should-be made -upon said land by .any railroad company, nor allowed by'-the city council, and that the owner of property abutting on Michigan avenue should have the right to' enjoin any such encroachments. The bill contains no other allegations -tending to show the alleged trust, nor the dedication which it is" claimed was made.
From these allegations it can not be-told but that Michigan avenue is shown on- the plat as a street; on the contrary, it may reasonably be inferred-, from the language of the pleading,-that it did so appear. Also, while in one place-it is alleged that, appellees’ lots front east -on Michigan avenue .and - Lake Park, it is also alleged -that the land known as Michigan avenue and Lake Park,-, lying east of said lots; has been held and -declared -by the Supreme Court to be dedicated to the public, etc., thus making it uncertain as to what is the relative location of. Michigan avenue and Lake Park with reference to appellees’' lots. How far east of appellees’ lots is Michigan, avenue, and how far east of the lots is Lake Park ? What is the position of Michigan avenue in Lake Park ? The bill fails to answer these queries.
In many places the bill speaks of Michigan avenue as a street, and alleges that defendant has operated its cars by cable beneath the surface of the street on Michigan avenue, from Madison to Randolph street, for a number of years last past.
Dedication is a question of intention of the dedicator, who must be the owner of the fee, and is not complete until accepted; and before the court can tell that there was a dedication, as claimed by appellees, the facts constituting such dedication should be set out, for non constat when the facts are stated, it may clearly appear that no dedication for the purpose claimed was complete. Bougan v. Mann, 59 Ill. 492; Smith v. Town of Flora, 64 Ill. 94; City of Chicago v. Johnson, 98 Ill. 618-24; Littler v. City of Lincoln, 106 Ill. 353-68; Maywood Co. v. Maywood, 118 Ill. 69.
The plat not being set out, and the allegations with reference to the alleged dedication of Lake Park being so indefinite and uncertain, there being no allegation as to when the plat was made, nor ivhat it shows, nor as to who was the owner of the land alleged to have been dedicated, nor of its acceptance by the public, nor how it has been used by complainants or the public, we think the bill is insufficient as showing a dedication.
As to the allegations in regard to what was held and declared by the Supreme Court, they can not, in our opinion, be regarded as a statement of facts, but were conclusions of the pleader.
It is novel practice, and, so far as we are aware, unprecedented, to allege, as is done in this bill, that in another case, to which this appellant was not a party, so and so was decided. Such statements properly find their place in brief and argument. They are not sufficient as allegations that the question presented by the bill, viz., whether Michigan avenue is a public street, has been conclusively adjudicated against the defendant. It should at least appear who were the parties to such suit, what the precise question' for adjudication was before the court, and if defendant was not a party, what facts existed which would make the adjudication binding upon it. Kitson v. Farwell, 132 Ill. 327-38; Smith v. U. S. Ex. Co., 135 Ill. 280-9; Palmer v. Sanger, 143 Ill. 45; Wright v. Griffey, 147 Ill. 498; Leopold v. City of Chicago, 150 Ill. 573.
Moreover, if it were conceded there was a complete dedication of the land in question, “ as public ground not to be occupied with buildings of any description,” we see nothing inconsistent, so far as appears from any allegations of fact in the bill, with such public ground being used for street purposes, and not as a park. It does not necessarily follow that land dedicated as public ground must be used as a park:
Because of the insufficiency of the allegations of the bill, we have not thought it necessary to consider the bearing on other questions discussed by counsel of the Ward case, supra, nor of the numerous ordinances (none of which are stated in the bill), statutes and decisions referred to by counsel, which, it is claimed, show the recognition of Michigan avenue as a street or as a part of Lake Park.
The injunction having been issued without sufficient allegations in the bill to warrant it, the order will be reversed and the injunction dissolved.
Mr. Justice Sears dissents.
