Hill v. St. Louis & Northeastern Railway Co.
90 N.E. 676
Ill.
1909
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

Thе first question which arises for consideration in this ease is, has a court of equity power, upon a bill filed by an abutting owner, to enjoin a railroad company from operating its railroad in a public street of a city, the title to which is in the city, where the railroad cоmpany has been granted power by the city council to operate its road in said street, on the ground that the railroad is violating the ordinance under which it has been authorized to construct and operate its road, or on the ground that the resolution or ordinance under which the road was cpnstructed and operated is void?

This court has repeatedly held that an injunction will not be granted at the suit of an abutting property owner to restrain the construction or operation of a railroad in - a street of a city which has been authorized by the city council Moses v. Pittsburgh, Fort Wayne and Chicago Railroad Co. 21 Ill. 515; Murphy v. City of Chicago, 29 id. 279; Stetson v. Chicago and Evanston Railroad Co. 75 id. 74; Patterson v. Chicago, Danville and Vincennes Railroad Co. id. 588; Chicago, Burlington and Quincy Railroad Co. v. McGinnis, 79 id. 269; Peоria and Rock Island Railway Co. v. Schertz, 84 id. 135; Penn ‍‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​‌​‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Mutual Life Insurance Co. v. Heiss, 141 id. 35; Corcoran v. Chincago, Madison and Northern Railroad Co. 149 id. 291; White v. Metropolitan West Side Elevated Railroad Co. 154 id. 620; Doane v. Street Elevated Railroad Co. 165 id. 510; Stewart v. Chicago General Street Rаilway Co. 166 id. 61.

In Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. 156 Ill. 255, on page 273, the court said: “Where the fee of the street is in the city, such damages as the abutting owner may suffer from the laying Sf a railroad track in the street are merely consequential, so far, at least, as they affect the property abutting on the street. In such case, as there is no physical taking of the land, injunction will not lie to enjoin the taking, the remedy being an action at law for damages.”

In Doane v. Lake Street Elevated Railroad Co. supra, the court said (p. 519): “The real ground upon which relief by injunction is denied in such cases is, that the use of the street being within the purposes for which it is laid out, and therefore a proper use, the right to occupy is properly a question between the defendant and the municipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public generally, the individual ‍‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​‌​‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍being left to his action for damages for any injury resulting to his property. He has no standing in equity оn account of public injury or for the purpose of inflicting punishment upon the defendant for its wrongful acts. He can only invoke that jurisdiction in order to protect his property from threatened injury. His injury is a depreciation of the property, which is capablе of being estimated in money and recoverable in an action at law, therefore a court of equity will not interfere by injunction.”

In Stewart v. Chicago General Street Railway Co. supra, it was said (p. 63): ' “This court held in Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, that аn abutting lot owner on a street had no such an interest in the street that he could maintain a bill for injunction against the use of the street by a street railroad company, where such use was authorized by an ordinance.” It is also held that where the use of the street has not been legally authorized by the city, the suit for an injunction to restrain its use by the railroad company should be brought by the Attorney General or State’s attorney or by the city.

In Doane v. Lake Street Elevated Railroad Co. supra, on page 521, it was said: “Where the use of thе ‍‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​‌​‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍street has not been legally authorized, as held in McCartney v. Chicago and Evanston Railroad Co. 112 Ill. 611, Hunt v. Horse and Dummy Railway Co. 121 id. 638, Chicago, Burlington and Quincy Railway Co. v. City of Quincy, 136 id. 489, and Metropolitan City Railway Co. v. City of Chicago, 96 id. 620, an information in chancery by the Attorney General or Stаte’s attorney on behalf of the People, or, as in the last named case, a bill for injunction by the city, affords a proper and complete remedy. If, as contended, the abutting owner can also maintain a bill -on the same ground,—that is, that the building of the road is without the valid consent of the city,—then the language in the Patterson case, ‘and any such excess of authority in the use of a street as is here claimed must be left to be redressed by the public authority,’ must be overruled and the authorities above cited as to the remеdy by the Attorney General or city qualified. If a railroad is legally authorized no one can enjoin its construction. In other words, it is only when the consent of the city has not been lawfully obtained that any one can complain in a court of equity, and, therefore, when it is sаid ‘the remedy is by the public authorities, the abutting property holder being remitted to his action at law for damages,’ cases in which the work is unlawful must be contemplated, and such is clearly the force of the Patterson case, supra. This doctrine is recognized agаin in the Corcoran case, supra. In the Schertz case, supra, the ordinance authorized the laying of a track along a street on condition that the consent of property owners on the opposite side of the street should first be obtained, but the сompany proceeded with the work without complying with that condition, and a bill for injunction by an abutting property holder was filed. As shown by the bill in that case, the defendant was proceeding illegally and certainly without the consent of the.city, and the question was directly brought to the attention of the court, as appears from the dissenting opinion there filed, but the relief was denied.”

It is clear, therefore, that the defendants in error can not maintain their bill in this case, unless, as contended by the defendants in error, the plaintiff in error has waived its right to raise-that question.

. The question that the defendants in error had an adequate remedy at law was not specifically raised by the plaintiff in error in either the demurrer or the answer, and it is said that question cannot now be raised and that this court can only review this сase upon the evidence. This court has repeatedly held that if the subject matter of a bill in chancery is so far foreign to the jurisdiction of a court of chancery that the court is incompetent to grant the relief sought the court should refuse to take jurisdiction of the case, ‍‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​‌​‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍even though the defendant has submitted himself to the jurisdiction of the court. If, however, the subject matter belongs to that class of cases of which a court of chancery will take jurisdiction when the facts create some equitable right or the relation of the parties renders the exercise of such jurisdiction proper, an objection that there is an adequate remedy at law should be made at the earliest opportunity or the fact that the complainant has an adequate remedy аt law will be deemed to have been waived. (Stout v. Cook, 41 Ill. 447; Crawford v. Schmitz, 139 id. 564; Law v. Ware, 238 id. 360.) In the case at bar there are two reasons why a court of chancery has no jurisdiction: First, the complainants have an adequate remedy at law; and secondly, the complainants have not such an interest in the subject matter of the litigation as to enable them to maintain their bill. The streets of the city of Edwardsville are under the control of the city authorities, and the only right of action which the complainants have against the defendаnt, if any, is an action on the case for consequential damages, and in no event can they file a bill for an injunction to prevent the use of the streets of the city by the plaintiff in error, as that right rests in the Attorney General, State’s attorney or the city. If it be conceded that if the complainants had filed a bill in chancery against the defendant to recover damages for an injury to their property as abutting owners, and the defendant had not raised the question that the complainants had an adequate remedy at law in an аction on the case for damages and the case had gone to trial upon the merits, the question that the complainants had an adequate remedy at law would be deemed to have been waived, still the fact that the defendant went to trial upon the mеrits would not be deemed to have conferred a right to file a bill for an injunction upon the complainants when no such right existed in them. The right to file such bill, if at all, is in the public, acting through the Attorney General, the State’s attorney or the city. Patterson v. Chicago, Danville and Vincennes Railroad Co. supra; McCartney v. Chicago and Evanston Railroad Co. 112 Ill. 611; Blunt v. Chicago Horse and Dummy Railway Co. 121 id. 638; Chicago, Burlington and Quincy Railroad Co. v. City of Quincy, 136 id. 489; Metropolitan City Railway Co. v. City of Chicago, 96 id. 620; Doane v. Lake Street Elevated Railroad Co. supra.

If the сomplainants were permitted to control the operation of the defendant’s railroad in the streets of the city of Edwardsville by injunction, they would be, in effect, superseding the ‍‌‌​​‌‌​​​‌‌‌​‌‌​‌‌‌‌​​‌​​‌​‌​‌‌​‌​‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mayor and city council of that city in the duties conferred upon them by the statute as to the control of the streets of that city. In Chicago Telephone Co. v. Northwestern Telephone Co. 199 Ill. 324, on page 347, it was said: “An obstruction in the nature of a public improvement, placed in the streets of a city by the permission of the city, either express оr implied, is strictly a matter between the city and the private corporation constructing the improvement, so that any action to test the right to so obstruct the street should be brought by the city or by some public officer on behalf of the city.” In Chicago General Rаilway Co. v. Chicago, Burlington and Quincy Railroad Co. 181 Ill. 605, on page 610, it is said: “It is well settled that where the obstruction to a street does not result in any special damage to the individual he has no right to complain, but the proceeding for the removal of the obstruction must be by оr on behalf of the public. In such case the public alone can complain. The individual can only file a bill for injunction against the obstruction of a public highway when it is shown that he will suffer special damage different in degree and kind from that suffered by the public at largе.”

We think, therefore, it cannot be said that the defendant has waived its right to insist that the complainants can not maintain this suit. If it were held that every abutting owner upon a railroad, or all the abutting owners upon a street upon which a line of railroad is laid, could file a bill tо test the legality of the company’s right to operate its road in a street, the building of railroads through a village or a city upon its streets could be stopped at any time by one abutting owner or by their action jointly, and when that case was decided another suit by аn adjoining abutter could be commenced and the building of railroads thereby rendered impracticable. As was said in the Doane case, on page 522: “While * * * the private owner is entitled to have all his property rights fully protected, that right should be accordеd him, if possible, by a remedy which will not unnecessarily injure others and render impossible the construction and operation of necessary facilities for public travel. A moment’s reflection will, we think, convince anyone that if every abutting owner not consenting may enjоin street railway companies' from building their lines in streets upon the ground that the consent of the city has not been legally obtained, because of facts alleged which do not appear upon the face of the proceedings, the building and operаtion of all such lines will become practically impossible. In a case like this the work would necessarily be stopped until titles to abutting property could be adjudicated and settled, the powers of agents, etc., determined and the motives which may have рrompted owners to give their consent inquired into; and after this had been done, which, in the ordinary course of litigation, would require many months or even years of time, if the facts should be found in favor of the validity of the ordinance the work could proceed as to this сomplainant, he still being entitled •to his action for damages. The decision, however, would settle the validity of the ordinance between him and the defendant and no one else. Any number of other owners might, in succession, procure injunctions on the same or similar grounds аnd prosecute them to a like final determination. Manifestly, neither persons nor corporations would hazard capital in an enterprise subject to such uncertainty and delay. There is a certain, adequate and complete remedy at the suit of thе public whenever there is a threatened or actual unlawful obstruction of the streets and highways, and, as we think, an equally certain, adequate and conclusive remedy to the abutting owner for all his damages, present and prospective.”

From a careful еxamination of this record we are of the opinion the decree of the circuit court is not in harmony with the settled rulés of law as announced in the former adjudications of this court. The decree of the circuit court will therefore .be reversed and the cause will be remanded to that court, with directions to dismiss the bill.

Reversed and remanded, with directions.