Clark v. Donaldson

Mr. Justice Scholfield delivered the opinion of the Court: This case, in our opinion, must be controlled by Dunning v. City of Aurora et al. 40 Ill. 481. Bill is filed by certain property owners, praying that a building in a highway appurtenant and affording access to their property be removed, and that the closing up of such highway be enjoined. There is nothing about the building itself deleterious to the health of the complainants, or that renders the use of their habitations uncomfortable or dangerous,—it is simply inconvenient to have it occupy the street. Nor do we understand the case, as respects the existence of the highway, to be one beyond doubt. The court said, in the case referred to: “The building having been erected, a court of equity would not, unless in an extreme case, interfere to remove the building. If it were a powder mill or magazine erected by an individual in the populous part of a city, or adjoining to the complainant, or so near to him as to endanger the lives of himself and family, or the destruction of his property, before the question could be passed upon by a jury, it might probably be otherwise. But if it is only, as it is in this case, an inconvenience, no matter how great, a court of equity would have no right to interfere and abate the nuisance, at any rate before the question is settled at law. ” There is nothing decided in any of the cases referred to by counsel for appellee, inconsistent with this. See, also, High on Injunctions, (1st ed.) sec. 468. Irwin v. Dixon, 9 How. (U. S.) 6, is quite analogous in principle. Of like character are, also, Lining v. Geddes, 1 McCord’s Ch. 304, and Robeson v. Pittinger, 1 Greene’s Ch. 57. The case not being one which, in our opinion, entitled the complainant to equitable relief, the decree must be reversed and the. bill dismissed. Decree reversed.