Snell v. Buresh

Mr. Justice Craig delivered the opinion of the Court; The appellant predicates his right to erect the toll-gate at the intersection of Milwaukee and California avenues, on a provision contained in “An act to incorporate the Chicago Southwestern Plank Boad Company,” approved February 10, 1849, as follows: “The said corporation is authorized and shall have power to erect and maintain such toll-houses, tollgates, and other buildings for the accommodation and management of the said road, and the travel and transport thereon, as the said corporation shall deem suitable to its interests.” It is said, in the argument, that appellant is not entitled to claim the benefits of the section of the act; but without entering upon a consideration of that question, for the purposes of this case we shall assume that he has succeeded to the rights conferred on the Southwestern Plank Boad Company by the section of the act. But conceding appellant may claim the benefit of the section of the act, the question then arises whether he has the right to so obstruct Milwaukee and California avenues, by the erection of a toll-gate on Milwaukee avenue, in such a manner as to interfere materially with the rights of the public, and cause irreparable damage to property' owners occupying property on California avenue. Milwaukee avenue, from its intersection with North avenue to a point several miles beyond its intersection with California avenue, (as shown by a plat in evidence,) has been for the past eighteen or twenty years a part of a toll-road, known as the Northwestern Plank Boad. There is no doubt but the act under which the plank road incorporation became organized contained a grant of power to erect toll-gates; but the power conferred is only a general grant of authority, under which it will not be presumed that the legislature intended to authorize acts to be done which might result in great injury to third parties.' The grant merely authorized a road to be constructed, with authority on behalf of the corporation to erect toll-gates at suitable points on the line of the road, and collect fare or toll from travelers; but there is nothing in the act from which it can be inferred that the legislature intended to authorize the corporation to use its general powers in such a manner as to create a nuisance, or materially damage the property of others. Can the general grant of authority to erect toll-gates be pleaded in justification of the acts of appellant ? A very interesting case on this subject is Coggswell v. New York, New Haven and Harlem Railroad Co. 103 N. Y. 10, where it was held that the statutory sanction which will justify an injury by a railroad corporation to private property, without making compensation therefor and without the consent of the owner, must be express, or given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. In the case cited it was also held, that where the terms of a statute giving authority to such a corporation are not imperative, but permissive, this does not confer license to commit a nuisance, although what is contemplated by the statute can not be done without. See, also, the following cases, where the same doctrine has been announced: Hill v. Managers of Asylum District, 4 Q. B. Div. 433; 6 App. Cas. 193; Truman v. London Railroad Co. 25 Ch. Div. 423; Baltimore and Ohio Railroad Co. v. Fifth Baptist Church, 108 U. S. 317. It is manifest, from an examination of the evidence, that the erection of the toll-gate at the point contemplated by the appellant, would, in a great measure, destroy the value of appellees’ property, and interfere materially with their business. Indeed, the act contemplated, if allowed, is but the creation of a nuisance. This, the law will not tolerate, under the pretense of the sanction of a legislative act. While appellant has the right to a free and undisturbed enjoyment and use of all the powers and franchises conferred by the act of the legislature, which authorizes the construction and use of the plank toll-road, yet a fair construction of the act under which he claims, confers no power on him to destroy appellees’ property or establish a nuisance adjacent to their property; and while courts of equity will not interfere, by injunction, to prevent the obstruction of a highway or the creation of a nuisance when the right may he doubtful and there is a remedy at law, yet, as said in Green v. Oakes, 17 Ill. 250, where the right is clear, and appertains to the public, and an individual is directly and injuriously affected by the obstruction or the creation of a nuisance, they will interfere, on the application of such individual, to prevent the threatened wrong or invasion of the common right. This, in our judgment, is a ease which clearly falls within the principle announced, and the decree of the circuit court meets our approval, and it will have to be affirmed. Decree affirmed.