28 Ill. App. 28 | Ill. App. Ct. | 1888
It is contended by appellees that the act in question authorizing the trustees to lay out school lands with roads, streets and alleys between the divisions applies only to streets and alleys where the land is laid out into town lots; that hence it is argued by them that the road was laid out without authority, the land not having been divided into town lots.
It appears from the evidence that the supposed road in dispute has never been traveled or worked by the public as a road since it was platted and since the land was purchased over twenty years ago. That portions of the supposed road have been fenced for over twenty years. The public authorities have refused to expend any money on the road on account of the impracticability of ever using it as a road, and had told appellee to fence it up. It appears also that appellant has now, and has had for many years, an outlet and road from his lots to the main public highway, and that even if the road were left open it could not be used without the expenditure of large sums of money on account of its narrowness and steepness and its being crossed by deep ravines and gullies, and the evidence fully justifies us in believing that the appellant has no intention of using or improving the alleged road.
In 1S78, the commissioners of highways of West Galena township, by a majority, condemned said strip and found it impassable; “that it would cost §500 to open it and would have no road then.”
One of the commissioners of highways, Patrick Dillon, testified that he had viewed the strip as a commissioner and condemned it. “We found it rough and impassable ;” and saj-s, “I should judge it would cost between §8,000 and §10,000 to put that strip of ground in passable condition for teams with loads.” “ Opening the road wouldn’t benefit anybody.”
Waiving the question of what is the proper interpretation of the statute in question in regard to the right of the trustees of schools to lay out the road in the manner they did, we are clearly of the opinion that the appellant failed to show any equity in his hill or to show any facts which would authorize a court of chancery to interfere.
The appellant seems from the evidence to be actuated by “spite” and malice toward the appellees in seeking to compel them to open the road in question and in seeking to restrain them from again fencing it in with the balance of then-land as they had done before appellant tore it down. It does not a¡)pear that the appellant has the remotest design to improve or use the road, but that his only aim is to annoy appellees.
The appellees at least own the land occupied by the twenty-feet strip subject to the easement, if there be one, and the appellant and the public being unable to use it for the purposes of a highway, equity will not restrain the appellees from making use of it, or compel them to remove their fences from the strip in question.
“ Courts of equity are not bound at all times to enforce a strict legal right.” Lewis v. Lyons, 13 Ill. 117; Stone v. Pratt, 25 Ill. 25. “Equity will not do that which will he of no benefit to the party asking it and only a hardship on the party coerced.” Joliet, etc., R. R. Co. v. Healey, 94 Ill. 416; Green v. Green, 31 Ill. 327; Werden v. Graham, 107 Ill. 169.
The above rule of law meets with our full approval and we feel that its application is most appropriate in this case. The decree of dismissal of the hill by the court below is affirmed.
Decree affirmed.