72 Ill. App. 588 | Ill. App. Ct. | 1897
delivered the opinion of the Court.
This is a proceeding by mandamus to compel appellees to remove certain obstructions placed on Center street in the city of Le Roy in McLean county. Center street runs east and west and Buck street north and south through the city of Le Roy. The I. B. & W. Railroad was built and opened through the city of Le Roy in' 1870. The railroad enters the city from the northwest and passes a little south of east across the city, running diagonally over the intersection of Center and Buck streets. In 1870 there was a large flouring mill situated on the southwest corner of block 23 in the city of Le Roy. The north line of Center street is the south boundary line of block 23, and the- east line of Buck street is the west boundary line- of block 23» The flouring mill was eighteen to twenty feet east of the east line of Buck street, and thirteen to fourteen feet north of the-north line of Center street. Barnum & Keenan purchased this mill and block 23, upon which it was situated» Desiring to enlarge the flouring mill so-as to fit it for a grain elevator as well as for milling purposes, they in 1872 applied to the then town board for permission to put posts a short distance in the street to- support the proposed addition to the second story of the mill, and also for permission for the railroad company to run a spur track along the south side of the mill. Both permits were granted, Barnum & Keenan after procuring permission built an extension on the-south side of the mill sixteen feet wide and forty-eight feet long, and eleven feet above the level of the street, supported by five posts, twelve by twelve in size and standing some two and one-half feet south of the north line of Center street at the west and some six feet at the east end. In this extension are four cribs or bins, twelve by sixteen feet, for storing grain, with a capacity of about three thousand bushels to the bin. Upon the completion of these bins by which this part of the mill was converted into an elevator, the railroad company built a spur track from their main line under the bins, and eastward two-thirds of the way across the block, making room for two or three cars beyond the elevator. Owing to a decline in Center street going east the grade of the railroad track at the east end is higher than the traveled part of the street, four or five feet, and bends a little to the south, so that at the east end it is some six feet south of the north line of Center street. Under the bins on the railroad track is a set of railroad scales to weigh cars. The making of these improvements cost about three thousand dollars.
By permission of the town board of the then town of Le Boy, Barnum & Keenan,' in 1873, erected a platform scale at a cost of from six to eight hundred dollars at the southwest corner of the intersection of Center and Buck streets. The scales extend into the street about seven feet, are on a level with the surface of the street, and are covered by a roof, supported by four posts. Charly & Payne bought their property of Barnum & Keenan and now own it. The business houses are on Center street and about one-fourth of a mile east of the mill. The width of Center and Buck streets is sixty-six feet.
The obstructions complained of are the elevator bins and the five posts supporting them, placed over the north line of Center street at the west end two and one-half feet, and at the east end six feet, and the platform scales at the souths west corner of the intersection of Center and Buck streets, extending into Center street seven feet from the south line. The former were placed where they now are in 1872, and the latter in 1873. As to the facts in this case there is no substantial disagreement. There is but one question of law arising in the case. The authority and control of the mayor and aldermen over the street's and alleys of the city of Le Boy, with the restrictions and limitations stated in the authorities cited by appellant are admitted. They, however, are not applicable to the facts and circumstances in this case.
While the statute of limitations does not apply in cases of this character, the defense of equitable estoppel from abandonment or non-user may be invoked. This is the defense invoked in this case by the appellees. The Supreme Court, as an illustration of this doctrine in discussing the question, have said in Lee v. Town of Mound Station, 118 Ill. 317: “ It is true we have held where the public have long withheld the assertion of control over streets,' and private parties have been by the acts of those representing the public, induced to believe the streets abandoned by the public, and on the faith of that belief, and with acquiescence of those representing the public, they have placed themselves, by making structures or improvements in the street, in a situation where they must suffer great pecuniary loss, if those representing the public be allowed afterward to allege that the street was not abandoned, the doctrine of equitable estoppel may be applied.”
It is further said with reference to this doctrine: “ There is no danger in recognizing the principle of an estoppel m pais as applicable to such cases as this, as it leaves the courts to decide the question, not by the mere lapse of time, but by all the circumstances of the case, to hold the public estopped or not, as right and justice may require.” Jordan v. City of Chenoa, 166 Ill. 530; Chicago, R. I. & P. R. R. Co. v. City of Joliet, 79 Ill. 25; County of Piatt v. Goodell, 97 Ill. 84; Village of Winnetka v. Prouty, 107 Ill. 218; Village of Auburn v. Goodwin, 128 Ill. 57; City of Peoria v. Johnston, 56 Ill. 45.
In this case the municipal authorities consented to the erection of the structures now complained of where they now encroach on the street, more than twenty-four years ago, and have acquiesced in their remaining all this time. Mo one has made any objections to their being there, until just before the commencement of this suit, complaint was made by appellant. The owners of these structures were in good faith induced to believe, and did believe they would not be interfered with by the public authorities, and erected the elevator, and the spur of the railroad running into the mill, at an expense' of about $3,000, and the platform scales at a cost of $700. If those representing the public are compelled to remove these structures and improvements, the appellees must suffer great pecuniary loss. It seems to us from all the facts and circumstances in this case it would not be equitable of just to do it, and the doctrine of equitable estoppel should be applied to this case.
The judgment of the Circuit Court is affirmed.
