Prince v. McCoy

Beck, J. I. The mere non-use of the streets by the public and the authority given by the city to inclose them, as alleged 1. áuSrFtTSi;o close. answer °f defendants, do not constitute a sufficient defense to plaintiff’s petition. The streets being dedicated to public use, the city cannot authorize them' to be inclosed; this can only be done lawfully after they are vacated in the manner prescribed by law. And the fact that, after the dedication is made in the manner prescribed by law, the people do not use the streets, does not, of itself, authorize the party making such dedication to resume possession of the land. If the non-use be so complete and for such length of time as to authorize the presumption of a permanent abandonment of the easement, the rule stated might not apply in such a case. But the answer does not bring the case within this exception. The answer, however, alleges that the streets are not suscep- • tibie of use as such in their present condition, and heretofore [535] bare not been used, and that plaintiff will in no manner be injured in tbe free use and enjoyment of bis property by tbeir inclosure; all damage and injury resulting therefrom is also denied. This, we think, is a sufficient answer to the claim for relief in the petition. If the streets are not, have 2 _._. injunction. not been, nor can be used for the purpose of their dedication, it is impossible to .see in what respect plaintiff can be injured. He will be deprived of the exercise of no right by the inclosure, for, if he had a right now to use the streets, he cannot because it is impossible' on account of their condition. The right which he possesses to use the streets is abstract, ideal; it cannot be-impaired by defendants, because it has no such existence that it may be enjoyed by plaintiff. Defendants, then, by the act of inclosing- the Streets, do not deprive plaintiff of the use of them; their condition is not thereby changed, nor do they sustain loss or damage to any extent. In a word, plaintiff seeks to restrain defendants from doing that which will not injure him nor deprive him of the use of anything that is- capable of being used. It cannot be claimed that it is necessary to restrain defendant from inclosing the streets in order to preserve the right to use them at a future time when they may be capable of use by the public. ■ Defendants propose to keep them 'inclosed only to such time as they may be put in a condition for use. No length of use under such claim- or under the authority to use them, temporarily granted by the city, would defeat the right of the public to the streets when they can be used. Certainly t-lie fact that the inclosure intended by defendants will be a benefit to them, is no reason- alone to forbid it. Plaintiff then stands in the position of asking the court of equity to restrain defendants from doing- ah act which to him, or to the public, is no injury. He would gain nothing by the decree asked for, and would lose nothing and be deprived of no rights if the relief be refused him. A court of justice cannot be asked to do so vain a thing. If we regard the proposed inclosure of the streets as in conflict with the abstract right of the plaintiff and the public, [536] yet equity, recognizing that no loss, no damage to plaintiff can be sustained by the act, will refuse the relief. The act cannot be called a nuisance, for it works an injury to no one. It cannot indeed be considered an obstruction to a public highway, for the highway has only an ideal existence. In short, it is an act that injures no one, and no mischief, public or private, is wrought thereby. In such a case chancery will not interfere. Head v. James, 13 Wis., 641; Owen v. Field, 12 Allen, 457; Clark et al. v. Willett, 35 Cal., 534; Corporation of N. Y. v. Mapes et al., 6 Johns. Ch. 46; Rogers v. Mich. S. & Northern Ind. R. Co., 28 Barb., 539; Lancy v. Joshu, 39 Ill., 46. II. If the plaintiff will suffer no injury except in common with the public, he is not entitled to the relief claimed. 3. _: _. Comeng v. Lowerse, 6 Johns., 439; McCowan v. Whitesides, 31 Ind., 235; Davis v. Mayor, 4 Kern., 506; Dawson v. St. Paul, 15 Min., 136. The answer expressly alleges that plaintiff has no further right or interest in the streets in question than any other citizen, and that he will suffer no special injury distinct from that sustained by the public generally. These allegations strike at his right to the relief sought in this action. III. The joetition alleges that the vendibility and value of plaintiff’s property will be impaired by the inclosure of the streets. Such effect would work injury to him, and constitute foundation for the relief claimed in the petition. But it is denied in the answer, and an issue thereon is thus raised in the pleadings. This, as well as all other issues involving the injury sustained by plaintiff, ought to be determined upon a trial. We are of the opinion that the answer presents valid defenses to the action as above indicated, and that the demurrer therefore should have been overruled. REVERSED.