106 Ill. 60 | Ill. | 1883
delivered the opinion of the Court:
The bill in this case was brought by Henry Mills, against William Parlin, William J. Orendorff, William H. Parlin, and the Chicago, Burlington and Quincy Railroad Company, and was to enjoin defendants from running or operating steam engines to propel cars over a track laid by defendants in a street of the city of Canton, which switch or track connects with the railroad track of the Chicago, Burlington and Quincy Railroad Cqmpany. Complainant alleges his dwelling house is situated on the street in which the track is laid, and that the running of steam engines over such track or switch will be a great damage to his property, and will render it useless to complainant and his family, and uninhabitable as a residence. The fee of the • street on which the track or switch complained of is laid, was and is in the city of Canton. Permission was given by ordinance duly enacted by the city council, to defendants to construct the switch and operate cars thereon, either by' steam or horse power. Most generally the cars that have been operated on the track in question have been moved by horse power, but sometimes steam was used as a propelling power. The circuit court granted the relief asked by the bill. On the appeal of defendants that decree was reversed by the Appellate Court, with directions to the court below to dismiss the bill. Complainant brings the case to this court on his appeal.
The fee of the' street being in the city, and the grant to construct the switch or track thereon being one the city had the right to make, the decree of the circuit court was very properly reversed, for the reason the remedy, if any, for the injuries complained of, was at law, and not in chancery. It has been so frequently decided by this court that chancery will not entertain jurisdiction in such cases, it is not necessary to discuss it again as a new question. It is sufficient to refer to a few of the previous cases in this court that control the present decision: Stetson v. C. and E. R. R. Co. 75 Ill. 74; Patterson v. Chicago, Danville and Vincennes R. R. Co. 75 id. 588; Peoria and Rock Island R. R. Co. v. Schertz, 84 id. 135; Truesdale v. Grape Sugar Co. 101 id. 561.
Counsel for complainant objected to the jurisdiction of the Appellate Court to entertain defendants’ appeal, for the reason a franchise is involved, and insists on the same objection in this court. The bill was simply to test the authority of defendants to use a public street in front of complainant’s residence, for the use of their railroad track. The right or title, or the validity of a franchise, was in no way involved, and the appeal was properly taken to the Appellate Court in the first instance. Richards v. The People, 100 Ill. 423.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
