71 Ill. App. 525 | Ill. App. Ct. | 1897
delivered the opinion op the Court.
Plaintiff in error owned the north sixty acres of the north half of the southwest quarter of section eighteen, in the town of Concord, Iroquois county. Defendants in error were commissioners of highways in said town. There was a traveled highway on plaintiff in error’s north line, north of her north fence, which fence she claimed had stood in one place for more than twenty years. The commissioners claimed part of the legal highway was south of her fence, and moved her fence south accordingly. She moved it back. The commissioners moved it south again. She again moved it back. This occurred a number of times. There were several arrests and trials at law growing out of these occurrences. Thereafter the commissioners gave plaintiff in error notice that unless she removed her fence within five days, they would proceed against her for obstructing said road, and also for the daily penalty for allowing said obstructions to continue. She then filed a bill in equity to enjoin said commissioners from removing her fence, and from bringing suits concerning said fence, till a court of equity should fix the rights of the parties and of the public. A temporary injunction was granted by a master. Defendants answered and moved to dissolve the injunction. The court dissolved the injunction and dismissed the bill for want of equity, and complainant below prosecutes this writ of error from said decree.
Plaintiff in error argues certain questions of practice, based upon her claim that the court below dismissed the bill after answer filed, without setting the cause down' for hearing, etc.; but we are of opinion those questions are not raised by the assignments of error, which are as follows : “ 1st. The court erred in dissolving said injunction, because the main allegations in said bill are not denied, but admitted in said answer. 2d. There is nothing in said record showing said road was ever open or traveled south of said fence, and the allegations that said fence has been in said place for twenty-five years are not denied, therefore the court erred in dismissing bill.” These • assignments are the pleadings of plaintiff in error and she can not be heard upon any other supposed errors in the record. The "question whether the court below pursued the proper practice, is not before us for consideration.
The bill in this case states no facts which give jurisdiction to a court of equity. It seeks to restrain repeated trespasses and a multiplicity of suits. There are no facts stated which show plaintiff in error will suffer irreparable injury by being left to her remedy at law. She states that there have been suits at law, but does not allege there has been any adjudication in' her favor establishing her right at law. In the absence of the allegation, the court must assume against the pleader that she has not established her right at law; and, indeed, the proper inference against the pleader would seem to be that she has been defeated in the actions at law. To warrant interference on the ground of multiplicity of suits, there must be different persons assailing the same right, and not a mere repetition of the same trespass by the same person. Here there could be no suits except between the plaintiff in error and the commissioners of highways. The Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372; Commissioners of Highways v. Green, 156 Ill. 507; Harms v. Jacobs, 158 Ill. 505.
It follows that if the assignments of error truly state the condition of the record (which we can not admit), still the court did not err in dissolving the injunction, for an admission of the truth of the entire bill would not authorize the injunction; and the court did not err in dismissing the bill, for though the fence of the plaintiff in error had been in the same place for twenty-five years, still she has a complete remedy at law for its illegal removal, and therefore has no standing in equity. . Decree affirmed.