82 Neb. 26 | Neb. | 1908
James I. Lee, S. S. Garvey, and Fowler Wilcox brought this action against the city of McCook, mayor and council of said city of McCook, and the Chicago, Burlington & Quincy Railway Company to enjoin said city and its officers from vacating or taking any further steps toward vacating and closing a certain street or roadway, and to enjoin the defendant railway company from grading and laying railway tracks across, and from obstructing and closing, said street or roadway. The trial court sustained demurrers to the petition, and, the plaintiffs not desiring to further plead, their petition was dismissed for want of equity. The plaintiffs appeal.
It appears from the petition that the city of McCook is a city of the second class having less than 5,000 popu
In the case of Enders v. Friday, 78 Neb. 510, a case very similar to this one, it was held that, where part of a street is vacated, the general rule is that only those property owners, whose property abuts upon that part of the street, and who are thus cut off from access to their property, are entitled to damages on account of such vacation. It would follow, therefore, that the plaintiffs suffered no wrong that would be actionable at law for damages. The only injuries they sustain are such as are common to the community generally. It is true that it is alleged that the appellant Lee will suffer damages, and that his ice plant will be practically destroyed; but the nature of the injury he sustains is not different from that sustained by other persons. He, like others, may be com-' polled to travel a greater distance in order to reach the north part of the city. The doctrine is well recognized that one cannot maintain a private action on account of wrongs or damages which he may suffer in common with the rest of the community. Enders v. Friday, surra; Davis v. County Commissioners. 158 Mass. 218. Where the injury complained of is really a public injury, or the
It also appears that, so far as the city is concerned, the action is really to enjoin it and its officers from passing a resolution or ordinance. It is a general rule that a municipal corporation, in the exercise of legislative powers in relation to the matters committed to'its jurisdiction, can no more be enjoined than the legislature of the state. 22 Cyc. 890. “The courts will not enjoin the passage of unauthorized ordinances, and will ordinarily act only when steps are taken to make them available.” 1 Dillon, Municipal Corporations (4th ed.), sec. 308, and note thereto. “The restraining power of the courts should be directed against the enforcement, rather than the passage, of unauthorized orders and resolutions or ordinances by municipal corporations. * * * It is time enough for equity to stretch forth its preventive arm when some attempt is made to enforce the unconstitutional act.” Stevens v. St. Mary’s Training School, 144 Ill. 336, 351. It does not appear from the petition that any attempt will be made by the city to vacate the roadway except by the passage of an ordinance or resolution. As the resolution passed was vetoed, and there is no ordinance or resolution now in force, it does not appear that the plaintiffs are entitled to an injunction against the city or its officers.
Appellants contend that the city is without any jurisdiction to declare a vacation of the roadway, because it was originally laid out by the county commissioners. The allegations of the petition clearly show that the roadway is now within the city, and we think it has thereby become impressed with the character of a street. If the road was laid out by the county commissioners, it was probably done prior to the land over which it was laid out being made a part of the city. When this roadway was brought within the boundaries of the city, in our opinion, the county commissioners lost control and jurisdiction over
So far as the railway company is concerned, nowhere is there any allegation that it has proceeded negligently in grading and laying its tracks across the roadway; and, if it is not maintaining proper crossings over its tracks and switches, ample means are afforded for compelling it to do so. Bnt, even if it was negligently constructing its tracks and switches, so as to impede and obstruct the travel over and along the highway, the injury which the plaintiffs would sustain would be no other or different from that suffered by the community generally, and no right of action would be thereby afforded them against the railway company.
Appellants complain particularly because in the resolution which was vetoed and in the proceedings had before the council looking to the vacation of the street, section 8941, Ann. St. 1907, was not complied with in providing by ordinance for the election or appointment of five disinterested householders to determine by assessment the damages suffered by persons by reason of the vacating of the roadway or street; but, in the view we have taken of the case, it is not necessary to consider this question, nor is it necessary to determine whether or not the resolution or ordinance, if passed over the veto,, would be of any force or validity. Upon the record as it now stands the plaintiffs were not entitled to an injunction. It appears that a temporary injunction had been granted, which has been kept in force by means of a supersedeas bond. It follows that this temporary injunction should be dissolved, and that the judgment of the district court should be affirmed.
Affirmed.