Comrs. of Highways v. Green

Mr. Chief Justice Craig delivered the opinion of the court: There is no substantial controversy in this case in regard to the facts. Complainant owned the south half of the east half of the south-west quarter of section 2, township 12, north, range 10, east of the third principal meridian, and B. F. Cutler owned the north half of the eighty-acre tract. The commissioners of highways purchased of Cutler forty feet off the south side of his forty-acre tract for a highway, and a highway was laid out on the land purchased. The surveyor employed to survey the road made a report, in writing, to the commissioners, showing that he commenced the survey for the line of the road twenty feet north of the north-west corner of the south-west quarter of the south-east quarter of section 3, thence running east, etc., and the order of the commissioners laying out the road conforms to the survey, and in express terms declares the line of the survey to be the center of the road. But while .the road was located on the forty feet of land purchased of Cutler, as appears from the evidence, when the commissioners opened the road they passed over the line and opened it on the land of complainant. After the road was opened, Dickinson, a county surveyor, employed to establish the line between the two forty-acre tracts, surveyed and established the line, and from this survey, which is not disputed by any one, it appears that the highway was opened and worked south of the line. It also appears, from the evidence of the surveyor, that the fence erected by complainant) which was torn down by the commissioners, was on complainant’s land, south of the line between the two forty-acre tracts. It also appears, from the evidence, that several years before the highway was laid out an old fence had been built between the two forty-acre tracts. This fence was not, however, on the line, but it stood over on complainant’s land. Where adjoining land owners agree upon a boundary line, and enter into possession and improve their lands according to the line thus agreed upon, they will be concluded from afterwards claiming that the line agreed upon is not the true one. (McNamara v. Seaton, 82 Ill. 498.) But that rule has no application here, as the evidence fails to show that the two land owners ever agreed upon the old fence as the true line between the two tracts of land. But it is contended, in the argument of the attorneys for plaintiffs in error, that a court of equity will not interfere, by injunction, to prevent a mere trespass, and upon this ground the decree enjoining the threatened trespass was erroneous. We think it plain, from the evidence, that the fence erected by the complainant was on his own land, and that the commissioners of highways were trespassers in tearing down and removing the same. , But, as a general rule, courts of equity will not interfere to restrain trespassers, but leave the injured party to his remedy at law. There are, however, two exceptions to this general rule : First, where it is necessary to prevent irreparable injury; and second, to prevent a multiplicity of suits. The jurisdiction of a court of equity to restrain a trespass arose in Owens v. Crossett, 105 Ill. 357, and in disposing of the question it is said: “It is first urged, in affirmance of the decree dismissing the bill, that it will not lie to enjoin a trespass. Such is undoubtedly the rule where it is a simple trespass to property, and is but a single act, and the person committing or threatening the trespass is able to respond in damages; but where he is insolvent, and repeated trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong by restraining the threatened trespass.” In Thornton v. Roll, 118 Ill. 350, it was held, that where one party threatens to go upon the land of another and remove earth therefrom to make an embankment for a public road, in the absence of any allegation in the bill showing the insolvency of such party, or that irreparable injury will follow, no injunction will be granted to prevent the threatened trespass. In Poyer v. Village of DesPlaines, 123 Ill. 111, it was held, that before a court of equity will interfere to prevent a trespass or an illegal prosecution under an ordinance, upon the ground of irreparable injury, facts and circumstances must be alleged from which it may be seen that irreparable mischief will be the result of the act complained of and that the law can afford the party no adequate remedy. A general allegation to that effect will not suffice. To entitle a party to maintain a bill of peace, or bill to prevent a multiplicity of suits at law, there must be a right claimed affecting many persons. If the right is disputed between two persons only, not for themselves and all others in interest, but for themselves alone, the bill will not lie, unless the complainant’s right has been established at law. In Chicago Public Stock Exchange v. McClaughry, 148 Ill. 872, it was again held that a court of equity will not enjoin the commission of a threatened trespass where the injury is susceptible of computation, and the trespasser is not shown to be unable to respond in damages. If these decisions lay down the correct rule on the subject,—and upon examination it will be found that they are well sustained by text writers and the decisions of the best courts of last resort,—it is manifest the bill in this case cannot be sustained. The bill contains no allegation that the defendants are insolvent, nor is there any proof of‘insolvency found in the record. Under such circumstances complainant has a complete remedy at law to recover any and all damages sustained by the tortious acts of the defendants. But it is alleged in the bill that a multiplicity of suits will arise unless defendants are restrained. No suits could arise except between the complainant on the one hand and the commissioners of highways on the other, and the rule, as stated in 2 Story’s Equity Jurisprudence, (sec. 857,) and approved in Poyer v. Village of DesPlaines, supra, is, if the right is disputed by two persons only, not for themselves and all others in interest, but for themselves alone, the bill will be dismissed. In the Chicago Public Stock Exchange case, supra, in discussing this subject, it is said: “To warrant interference upon 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, ‘the case being susceptible of compensation in damages. - 1 High on Inj. 700.” Under the law as declared in this case as well as the Poyer case, supra, a sufficient case was not made by the bill or the evidence to authorize a court of equity to interfere. The decree of the circuit court will be reversed and the cause will be remanded, with directions to dismiss the bill. Reversed and remanded.