Northern Electric Railway Co. v. Chicago, Milwaukee & St. Paul Ry. Co.
Northern Electric Railway Co. v. Chicago, Milwaukee and St. Paul Ry. Co.
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Opinion of the Court
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Mr. Justice Gary delivered the opinion of the Court.
This is an appeal from an interlocutory order, granting an injunction. In its bill the appellee alleges that it owns and is in possession of about six hundred feet frontage on each side of a street called Central avenue in Chicago. That on a portion of said street, less than one mile in length, the appellant is about to construct a line of street railway, which will greatly damage the appellee by its effect upon the use of the property referred to. That the appellant claims the right to construct, under an .ordinance set out in the bill, and that “ a petition of the owners of the land representing more than one half of the frontage of said Central avenue, described in said ordinance, or so much thereof as is sought to be used for railroad purposes, was not at the time of the passage of said ordinance or prior to said passage, or at any other time, presented to the city council of the city of Chicago, requesting said council of the city of Chicago to grant the defendant the right to lay down its railroad track along said street, or so much thereof as is described in said ordinance.”
Under such an averment what does the appellee propose to question ? The fact of ownership by the signers of some petition, the quantity of land, whether more than one-half or.not, which they represented, the manner of presentation of the petition to the common council, or the form of the petition ? The averment is of a mere conclusion. The real facts, as they actually are, should be set out, that the court may see whether they justify such a conclusion.
Without reference to the insufficient verification of the bill, which is the only proof of it, and is like those often condemned in this court (Stirlen v. Neustadt, 50 Ill. App. 378 ), and without any discussion of the general question of whether a court of equity ought, or ought not, to interfere with a contemplated use of a street under the authority of the common council, we hold the order appealed from improvident, and it is reversed, and the cause remanded, with directions to the Circuit Court to dissolve the injunction.
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