City of Chicago v. Union Building Ass'n

Mr. Justice Scholfield delivered the opinion of the Court:

We are of opinion that appellee has shown no such special or peculiar injury to its property as entitles it to an injunction, even if it be conceded that the proposed vacation and closing up of a part of La Salle street is illegal.

Appellee’s building and. lot are some three and a half blocks distant from the part of La Salle street proposed to be vacated and closed up. It is not, nor could it reasonably be, claimed that the closing up of this portion of the street in any degree interferes with access to appellee’s lot, or with its use and enjoyment. The streets adjacent to it all remain in the same condition as to. width,, character of. improvements, etc., that they were in before, and it is not pointed out how appellee will be otherwise specially or peculiarly injured by the proposed closing up of the portion of the street in question. The removal of the place of business of the Board of Trade will, doubtless, diminish the number of those desiring to become tenants of appellee; but it is not insisted that appellee has any legal right to control the movements or location of that corporation. Its dissolution, or removal for a like or greater distance to any other locality, would in all probability have the same effect in diminishing the number of those desiring to become appellee’s tenants.

It has never been claimed that adjacent property holders have a right to insist that corporations or individuals shall continue to do a particular business at a given locality, in order that such adjacent property holders may continue to enjoy the incidental benefits resulting from such business, and to so hold would be an end to all improvement.

All persons having to pass from appellee’s property to Van Burén street, or to the depot of the Chicago, Bock Island and Pacific, and. Lake Shore and Michigan Southern railroads, will, if the proposed vacation be effected, have to go a little farther than they otherwise would, and this will be, so far as concerns appellee, the only proximate effect of an illegal permanent obstruction placed in the part of LaSalle street proposed to be vacated. Precisely the same injury will result to every one, wherever located, having to pass that route. They may, to accomplish their journey, have to make an additional turn, and travel a little farther. Is this such an injury as authorizes a private party (one who has no authority, by statute or otherwise, to represent the public,) to have the aid of a court of equity ?

In McDonald v. English, 85 Ill. 236 , we said: “We regard the rule as well settled, that for 'any obstruction to streets not resulting in injury to the individual, the public only can complain. Where, however, the obstruction is such that a public prosecution is authorized, and, at the same time, an individual has been specially injured thereby, as well as where the act has been private and an offence against the individual solely, he may maintain an action and recover for his special injury; but in such case the special injury is the gist of the action, and unless it is° alleged and proved, there can be no recovery. ”

In the American Law Register for October, 1880, one of the learned editors of that periodical, Mr. Edmund H. Bennett, in a note to Fritz v. Hobson, after a very elaborate review of the principal cases bearing upon the question now before us, comes, as we think very correctly, to the conclusion : “First, for any act obstructing a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although in a much greater degree than any other person; second, an action will lie for peculiar damages of a different kind, though even in the smallest degree; third, the damages, if really peculiar, need not always be direct and immediate, like the loss of a horse, but may be as remote and consequential as in other cases of tort; fourth, the fact that many others sustain an injury of exactly like kind, is not a bar to individual actions of many cases of a public nuisance. ”

The present case, it will be apparent from what we have already said, falls within the first of these conclusions. The damages -sustained are of the same kind as those sustained by the general public, differing, if at all, only in degree, and this will be found to be amply ■ sustained by the following cases cited by counsel for appellants: Smith v. Boston, 7 Cush. 254 ; Castle v. Berkshire, 11 Gray, 26 ; Brightman v. Fairhaven, 7 id. 271 ; Paul v. Carver, 24 Pa. St. 207; Brady v. Shinkle, 40 Iowa, 576 ; Barr v. Oskaloosa, 45 id. 275; Ellsworth v. Chickasaw Co. 40 id. 571; Shaubert v. Railroad Co. 21 Minn. 502 ; Wilder v. De Core, 26 id. 11; Pollak v. Orphan Asylum, 48 Cal. 490 ; Fearing v. Irwin, 55 N. Y. 486 ; Jackson v. Jackson, 16 Ohio St. 163 ; People v. Supervisors, 20 Mich. 95 ; Riggs v. Detroit, 27 id. 262; Hinchman v. Detroit, 9 id. 103; Transylvania University v. Lexington, 3 B. Mon. 27 ; Higbee v. Railroad Co. 19 N. J. Eq. 276; Coster v. Mayor, 43 N. Y. 399 ; Bailey v. Railroad Co. 4 Harr. 389 ; Delaware and Maryland R. R. Co. v. Stump, 8 Gill & Johns. 479; Kittle v. Fremont, 1 Neb. 329 ; Sargent v. Railroad Co. 1 Handy, 52 ; Haynes v. Thomas, 7 Ind. 38 ; Venard v. Cross, 8 Kan. 248 ; Railroad Co. v. Combs, 10 Bush, 382 ; C. B. and U. P. R. R. Co. v. Twine, 23 Kan. 585 ; Schulte v. U. P. T. Co. 50 Cal. 592 ; Lansing v. Smith, 8 Cow. 146 .

It has been supposed, in argument, that our constitution, in providing that “property shall not be damaged for public use without due compensation, ” necessarily modifies the doctrine of these cases, to some extent. • So far as affects the present question, we are of opinion this supposition is not well founded. In the recent case of Rigney v. The City of Chicago, (ante, p. 64,) we had occasion to consider the effect of this provision of the constitution, in a case in which access to property on one side and from one street was cut off, and we there, among other things, said: “There are certain injuries which are necessarily incident to the ownership of property in towns or cities, which directly impair the value of private _ property, for which the law does not and never has afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street—if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value; and that by reason of such disturbance ■he has sustained a special damage with respect to his property, in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.

“The English courts, in construing certain statutes providing compensation for injuries occasioned by public improve- , ments, in which the language is substantially the same as that in our present constitution, after a most thorough consideration of the question, lay down substantially the same rule here announced. Chamberlain v. West End R. R. Co. 2 Best & Smith, 605, 110 E. C. L. R. 604, id. 617; Beckett v. Midland Ry. Co. L. R. 1 C. P. 241; on Appeal, 3 C. P. 82; McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508.”

In the McCarthy case, thus approvingly referrred to, Lord Chelmsford, in stating the rule governing, said: “The learned counsel for the respondent proposed the following rule as a guide to the decision of each case: Where, by the construction of works authorized by the legislature, there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation. I think the rule, as thus stated, may be accepted, with this necessary qualification, that where the right which the owner of the house is entitled to exercise, is one which he possesses in common with the public, there must be something peculiar to the right, in its connection with the house, to distinguish it from that which is enjoyed by the rest of the world. ” See 10 Eng. Rep. (Moak’s notes,) 1. See, also, to like effect, Lyon v. Fishmongers’ Co. (1 Appeal Cases, 662,) 17 Eng. Rep. (Moak’s notes,) 51.

Counsel for appellee, however, contend that the principle is well established that powers conferred upon public officers in relation to corporate property, are trusts, and that they hold the public property in trust, and that a court of chancery therefore has jurisdiction to prevent the common council from vacating the street as an inducement to the Board of Trade to remove its place of business, on the application of any tax-payer of the city, and Colton v. Hanchett, 13 Ill. 615 , Prettyman v. Supervisors, etc. 19 id. 406, Perry v. Kinnear, 42 id. 160, Chestnutwood v. Hood, 68 id. 132, Campbell v. Paris and Decatur R. R. Co. 71 id. 612, Shaw v. Hill, 67 id. 455, Leitch v. Wentworth, 71 id. 146, Jackson v. Norris, 72 id. 366, Devine v. County Comrs. 84 id. 590, and Mayor of Springfield v. Edwards, 84 id. 626, are cited in support of the proposition. In all of these cases, except Shaw et al. v. Hill, and Jackson ex rel. v. Noms et al., relief was granted upon the ground that an unjust and illegal burden was being imposed upon the tax-payer to the extent of his pro rata part of the tax necessary to satisfy thé demand, the collection of which was sought to be restrained, and so the complainant had a direct personal interest to be protected.

In Shaw et al. v. Hill, the bill was to enjoin the removal of records, pending the contest of an election for the removal of a county seat. It was held, the right to the writ was an incident to the right to file a bill to contest such election, as authorized by section 12 of the “act to provide for the removal of county seats, ” approved March 15, 1872. In Jackson ex rel. v. Norris, it is only necessary to. say the bill was by the State’s attorney, as the representative of the public.

Counsel further contend that it is equally well settled that city authorities hold the streets in trust for the benefit of all the corporators, and, among other cases, refer to Carter v. Chicago, 57 Ill. 283 ; City of Chicago v. Wright, 69 id. 318 ; Dunham v. The Village of Hyde Park, 75 id. 371 ; Brush v. Carbondale, 78 id. 84.

The general expression, in these cases, that the city holds the streets in trust for the benefit of all the corporators, although accurate enough in its application to the facts there involved, is not, as we have shown in Chicago v. Rumsey, 87 Ill. 355 , and People ex rel. v. Walsh et al. 96 id. 232, strictly accurate. In the last named case we said: “The city, as the agent or representative of the public, holds the fee for the use of the public,—not the citizens of the city alone, but the entire public,—of which the legislature is the representative. ”

As held in Rigney v. Chicago, supra, property holders bordering upon streets have, as an incident to their ownership of such property, a right of access by way of the streets, which can not be taken away or materially impaired by the city without incurring legal liability to the extent of the ■damages thereby occasioned, and to this extent, perhaps, it may be said there is a special trust (not shown in the present case to have been affected) in favor of adjoining property holders. But' in no other respect do the property owners or citizens of the municipality have a right in the street other or different than that of the public generally.

The point is made, however, that appellee’s property, and other property in the vicinity, on LaSalle street, was specially assessed as benefited by the opening of that part of LaSalle street which it is now proposed to vacate and close, and the owners were compelled to, and did, pay considerable sums of money in consequence thereof, wherefore such owners have a special property in that part of the street. The point is not tenable. No case is referred to where it has been held that the payment of a special assessment gave the party paying, a special property right in the street. If such a right were once recognized, it is impossible to perceive why the principle would not recognize in every tax-payer a special property in the streets to-the extent of the amount paid for opening or improving them, and thus, in effect, hold that the streets are the private property of those' from whom the money was obtained which was paid out for their opening and improvement. Money raised by special assessment, as well as by taxation, becomes the property, of the municipality in trust for the use for which it is raised, and all private ownership in it ceases the moment it goes into the hands of the proper officer. There is certainly a strong natural equity in favor of a party who has been assessed for special benefits, that he should have the use of the streets for which he is thus made to pay, but it has never been deemed advisable to invest him, as a means of protection, with an equitable ownership in so much of the street.

There is, nevertheless, still another view to be considered. Every property holder in the city owes the duty of paying taxes and special assessments, lawfully imposed, for the opening, repairing and improving of streets, and we shall not at present, and for the purpose of the argument, question but that such property holders have an equitable right to have enjoined a breach of trust intended by the municipality, by which their burdens of taxes, or special assessments for the opening, repairing or improving of streets, etc., will be materially increased.

The general doctrine, according to Bispham’s Principles of Equity, (2d ed.) p. 512, is: “A corporation * * * can not be compelled ■ to perform a public duty at the suit of a private individual, without some special right or authority.”

In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured thereby. See Angell on Highways, sec. 284; Bigelow v. The Hartford Bridge Co. 14 Conn. 565 ; O’Brien v. N. and W. R. R. Co. 17 id. 372; Delaware and Maryland R. R. Co. supra; Paul v. Carver, supra; Sargent v. Railroad Co. supra. Indeed, in a number of the States the courts have expressly denied the right of a private tax-payer to have restrained a threatened illegal municipal act that will result in increased taxation, holding that the only remedy therefor must be sought through those representing the public. Doolittle v. Supervisors of Broome County, 18 N. Y. 155 ; Roosevelt v. Draper, 23 id. 318; Hale v. Cushman, 6 Metc. 425 ; Croft v. Jackson County, 5 Kansas, 518; Conklin v. Comrs. 13 Minn. 454 ; Bogg v. Detroit, 5 Mich. 336 ; Chaffee v. Granger, 6 id. 51.

It is said by Dillon* in his work on Municipal Corporations, (1st ed.) sec. 136 : “The author may observe that there appears to be no difference of judicial opinion as to the right of the taxable inhabitants, whenever the threatened illegal corporate act will increase the burden of taxation, to invoke the aid of equity to prevent it. The difference is as to the proper party plaintiff in a bill of this character. If the ordinary principle is applied, it must be admitted that where the duty about to be violated by the corporation or its officers is public in its nature, and affects all of the inhabitants alike, one not suffering any special injury can not, in his oion name, or by uniting with others, maintain a bill to enjoin it. * * * But it is agreed that any taxable inhabitant, or, perhaps, any citizen of the municipality, has such an interest to prevent or avoid illegal corporate acts that he may be a relator, on whose application the proper public officer of the commonwealth may, on behalf of the public, filé the requisite bill to enjoin the menaced illegal act, or if it has been consummated, to have relief against it.” * * *

The proofs here show that all parties having property adjoining the part of the street proposed to be vacated, as well as adjoining the parts of the streets proposed to be widened, have given their consent to the proposed vacation and widening, and. it is not shown that any one will be damaged, within the principles laid down in the cases to which we have heretofore referred, in consequence of such vacation and widening, in such way as to fix a legal liability upon the city; nor is it shown how, otherwise, the burdens upon the tax-payer will be materially increased. Neither, therefore, upon the ground that its property is legally affected by the proposed acts, nor that its burdens as a tax-payer will thereby be materially augmented, has the complainant shown a case entitling it to relief.

We think the judgments of the Appellate and circuit courts should be reversed and the bill he dismissed, and the judgment of the Appellate Court will accordingly be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Sheldon took no part.