Lowery v. City of Pekin

Mr. Justice Magruder delivered the opinion of the court: A wag'on road existed, running westward from the west side of the Illinois river opposite the city of Pekin to a public road running north and south at the Orchard mines, owned by the plaintiff in error. An embankment was constructed by Schenck, the grantor of the plaintiff in error, along the north side of this wagon road westward from the bridge over the Illinois river to the mines in question. The right of way, upon which this embankment was built, was upon ground, two-thirds of which was owned by the city of Pekin, and one-third of which was owned by the plaintiff in error, Lowery. Lowery, by the conveyance from Schenck, acquired the title to the right of way over the ground owned by the city through a lease for ninety-nine years made by the city to Schenck in 1870. The city of Pekin, according to the allegations of the bill, has appropriated the embankment owned by plaintiff in error upon the right of way north of the wag'on road, and made it a part of the public highway owned by the city. The embankment, as built by Schenck and subsequently conveyed to Lowery, was from six to eight feet in height and seven feet wide upon the top thereof. A railroad was constructed upon the embankment, running from the mines to the docks on the river, and was used for carrying coal by Lowery for about nine years. Originally, the wagon road owned by the city ran along on the south side of the embankment at the foot of it, and upon the surface of the ground. The city raised the wagon road by building another embankment alongside of the one constructed by Schenck, so that the top surface of the two embankments together was sixteen feet wide. The city thus has a public highway running from the bridge to the north and south public road at the mines, which is sixteen feet on the top thereof, and one-half of which consists of the embankment belonging to Lowery. The demurrer admits all the allegations of the bill-to be true. If these allegations are true, the city of Pekin has appropriated so much of the right of way and embankment of Lowery as belonged to him, and as was constructed by his grantor, without paying any compensation therefor. The city itself was Lowery’s lessor, as it leased to him two-thirds of the right of way for the express purpose of enabling him to build railroad tracks thereon, and to build docks at the river, with which those railroad tracks should connect. We can see no reason why the city should thus appropriate the property of a private citizen without paying him therefor. He had a right of way over property of the city itself through a lease for ninety-nine years, which the city gave him. This easement thus granted to him could not be interfered with by the city without violating the terms of its own agreement with him, as embodied in the lease. It is said, that the city cannot be enjoined from thus using and holding the possession of the property of plaintiff in error for the purposes of a public highway upon the alleged ground that plaintiff in error, if he has suffered any wrong, has a remedy at law, either in ejectment for the recovery of the possession of his property, or in trespass to recover damages thereto. But this is not a case, where it is sought to enjoin a simple trespass. This is a case where a municipality, under claim of right, is unlawfully trying to take the property of a private citizen. It is well settled, that injunction is a proper remedy where cities or public officers, under color of power or claim of right, are illegally attempting' to injure, or take the property, or impair the rights, of a citizen. (Smith v. Bangs, 15 Ill. 899; City of Peoria v. Johnston, 56 id. 45; Carter v. City of Chicago, 57 id. 283; Bryan v. City of East St. Louis, 12 Ill. App. 390). The injury here complained of is one of a continuing or permanent nature, for which an action at law does not afford a complete and adequate remedy. (Carpenter v. Capital Electric Co. 178 Ill. 29; Sterling’s Appeal, 111 Pa. St. 35). The plaintiff in error has here a right of way over certain property belonging to the city, that is to say, he has an easement in certain real estate, and the action of the city, in taking possession of his embankment and making it a part of the public highway, obstructs such easement, and, therefore, equity has jurisdiction to enjoin such obstruction, inasmuch as the injured party has no adequate remedy at law. (McCann v. Day, 57 Ill. 101; Carpenter v. Capital Electric Co. supra). It is well settled that, where a right of way is obstructed or an easement is interfered with, injunction will lie. (Chicago General Railway Co. v. Chicago, Burlington and Quincy Railroad Co. 181 Ill. 605; O’Connell v. Chicago Terminal Transfer Railroad Co. 184 id. 308; Newell v. Sass, 142 id. 104). For the reasons above stated, we are of the opinion that the circuit court erred in sustaining the demurrer to the bill and dismissing the same for want of equity. Accordingly, the decree of the circuit court is reversed, and the cause is remanded to that court with instructions to proceed in accordance with the views herein expressed. Reversed and remanded.