Hamilton v. Semet Solvay Co.
81 N.E. 538
Ill.
1907
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Plaintiff in error in his bill alleges that the proposed occupancy of certain streets of the plat in question by the defendants in error would cause him irreparable injury by rеducing the value of his land and cutting off the use of said streets so occupied. This allegation was denied in the answers, defendants in error contending that he would not be injured by thе construction of said slip, and that the claim of damages was not made in good faith but to force them to purchase his property. No proof was offered by plaintiff in error to sustain his allegations as to such injury except a copy of the original plat showing the location of the streets thereon. Defendants in error introduced evidence showing that this property could only be used in.large acre-tract's, and that the location and continuous retention of streets on the land as originally platted in 1869 would greatly lessen the value of their land; that it would be worth practically nothing with the streets, and would be worth something over $6500 per acre, unimproved, if the streets were vacated. This evidence stands uncontroverted in the record. The changes in connection with this property since it was platted, in 1869, have been most marked. Since that date, between it and the mouth of the Calumet river, two or three miles northerly, many of the finest manufacturing plants in existence have been located and аre now occupying practically all the land on both sides of the river down to the property of defendants in error. Nine large slips, some nearly a quarter of a mile in length, from one hundred to one hundred and fifty feet in width, with a depth of over twenty feet, have been constructed in connection with these plants. The Calumet river, originally, fоr much of the distance was nothing but a shallow, muddy creek, with almost unapproachable, marshy banks. It has been enlarged and deepened by dredging and railroads have .bеen built into this point, so that now this section has as fine railroad and water connections, for freight purposes, as can be found. Until the development of this property along the Calumet river for these purposes it was practically value-' less, many of the lots in Allen’s addition having been sold for taxes. Indeed, the proof shows that plаintiff in error holds some sixty of his lots by tax and limitation titles, being purchased for a mere trifle.

To justify a court of equity in granting the relief asked for in these proceedings, plaintiff in errоr must ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​‌‌‌​​​‌‌‌​​‌​​‌​‍establish a special injury to himself, actual and substantial. This court held in McDonald v. English, 85 Ill. 232, that the rule was well settled that for any obstruction to streets not resulting in special injury to the individual the public, only, can complain. While the obstruction or injury plight be of a public nature, still the individual might be specially injured thereby, but in such case, to justify the individual in maintaining an action to recover, the special injury must be the gist of the action and alleged and proved.

City of Chicago v. Union Building Ass. 102 Ill. 379, has many points similar to the cause now being considered. Some of thе ablest counsel then at this bar took part in the argument of that case. In the decision written by Mr. Justice Scholfield it was stated (p. 391) : “We are of opinion that appellee has shown no such special or peculiar injury to its property as entitles it to an injunction, even if it be conceded that the proposed vacation and closing up of a part of LaSalle street is illegal. Appellee’s building and lot are some three and a half blocks distant from the part of LaSalle street рroposed to be vacated and closed up. It is not, nor could it reasonably be, claimed that the closing up of this portion of the street in ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​‌‌‌​​​‌‌‌​​‌​​‌​‍any degree interfеres with access to appellee’s lot.or with its use and enjoyment. The streets adjacent to it all remain in the same condition as to width, character of imprоvements, etc., that they were in before, and it is not pointed out how the appellee will be otherwise specially or peculiarly injured by the proposed closing up of the portion of the street in question.” So in this case. The court there held that for any act obstructing a public and common right no private action will lie fоr damages; that the damages are of the same kind as those sustained by the general public, although such damages may be to a much greater degree to the complainant than to other persons.

In Littler v. City of Lincoln, 106 Ill. 353, we said (p. 367) : “The rights or privileges of other proprietors in the plat, which the statute protects, are necessarily legal rights аnd privileges, and such parties cannot, therefore, be affected by the closing of streets not adjacent to their property nor directly affording accеss thereto and egress therefrom.”

In City of East St. Louis v. O’Flynn, 119 Ill. 200, it was held that where the plaintiff’s lot was not adjacent to certain streets and alleys vacated, but in another block, and the aсcess to and ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​‌‌‌​​​‌‌‌​​‌​​‌​‍egress from said lot were not affected by the vacating ordinance, no recovery could be had from the city for vacating such adjacent strеets.

In Parker v. Catholic Bishop, 146 Ill. 158, after quoting with approval the three cases just cited and other authorities, this court held that a party, to maintain an action at law or in equity for the improper vacation of a street or alley, must show that he received.special injury or damages differing in kind from those affecting the general public.

The conclusion reached in City of Chicago v. Union Building Ass. supra, on the point here under consideration, has been ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​‌‌‌​​​‌‌‌​​‌​​‌​‍referred to many times by this court with approval. The following are a few аmong the many cases: Guttery v. Glenn, 201 Ill. 275; Chicago General Railway Co. v. Chicago, Burlington and Quincy Railroad Co. 181 id. 605; Snell v. Buresh, 123 id. 151; Oswald v. Wolf, 129 id. 200; Springer v. Walters, 139 id. 419; Saunders v. City of Chicago, 212 id. 206; Dunn v. Youmans, 224 id. 34.

The decisions of this court in Newell v. Sass, 142 Ill. 104, McDonаld v. Stark, 176 id. 456, and Village of Riverside v. MacLain, 210 id. 308, relied upon by the plaintiff in error, in no way conflict with the rule that a court of equity will not interpose' to prevent the obstruction оf a public street at the instance of a private individual unless such obstruction works- a special injury to ‍​‌‌​​​​​‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌‌‌​​‌‌‌​​​‌‌‌​​‌​​‌​‍the individual complainant. In all these cases the injury was alleged and proven. In the last case there was the additional reason stated for the court taking jurisdiction, that a bill could be maintained by an individual for the purpose of enforcing a special trust resting upon public officials in favor of adjoining property owners.

The streets on the so-called Allen addition have never been improved or used in any way, with the one exception heretofore noted in the statement. There is nothing on the ground to indicate that any such streets were ever in existenсe. The land, up to the time these improvements were put in, was, in its natural state, low and marshy and much of the year under water. That seems to be the present condition оf the property of plaintiff in error. A substantial part of some of the lots, as shown on the copy of the original Allen plat, have become a part of the rivеr by the ground being excavated for the purpose of widening and deepening the channel. All of the adjoining territory immediately adjacent to said Allen addition is unsubdivided. The record shows that plaintiff in error himself once attempted to .vacate the streets on his part of the subdivision. From the evidence it appears that the property in that vicinity, including that claimed by plaintiff in error, will be materially enhanced in value by the completion of the slip and the carrying on of the business of defendants in error. This rеcord is absolutely barren of any evidence tending to show that plaintiff in error has suffered any special or peculiar injury, or that his property has been or will be in any way damaged by the construction or continuance of the slip in and across the alleged streets in question. On the proof before us he has not shown any injury to his property, and certainly not such special or peculiar injury as entitles him to the relief prayed for in his bill, even conceding that the vacation of said streets be illegаl.

Plaintiff in error having failed to show any ground that 'would justify a court of equity in retaining jurisdiction, we deem it unnecessary to discuss the question as to whether the vacation of the streets in question was in accordance with law and whether defendants in error own the fee to said streets.

Finding no reversible error iii the record the decree of the circuit court will be affirmed.

t, j Decree affirmed.

Cartwright and Farmer, JJ., dissenting.