Snyder v. City of Mt. Pulaski

44 L.R.A. 407, 176 Ill. 397

• Court: Illinois Supreme Court
• Decided: October 24, 1898
• Status: Published

Opinion

Mr. Justice Phillips

delivered the opinion of the court:

The streets of a city are dedicated for public use, and for these purposes the city council may improve and control them and adopt needful rules for their management and use. But that body has no power to alien or otherwise encumber such streets so long as they are public streets, but must hold them in trust for public uses only, and hence no easement or right therein not of a public character can be granted by a municipality or acquired by any individual or corporation for exclusive private use, to the exclusion of the public. (Field v. Barling, 149 Ill. 556; Hibbard & Co. v. City of Chicago, 173 id. 91.) A permanent encroachment upon public streets for a private use is a purpresture, and is in law a nuisance. (Driggs v. Phillips, 103 N. Y. 77; Smith v. State, 23 N. J. L. 712; Attorney General v. Heishon, 18 N. J. Eq. 410; State v. Woodward, 24 Vt. 92; Chamberlain v. Enfield, 43 N. H. 356; Commonwealth v. King, 13 Metc. 115; Hibbard & Co. v. City of Chicago, supra.) In the case last cited it was said (p. 98): “Where the city has authorized a temporary use which causes a temporary obstruction, one having been licensed to exercise such temporary use would not be liable for a penalty, under the ordinances, for obstructing the street, as it was permitted as a matter of grace or favor. That such permission was given may be implied from circumstances. (Gridley v. City of Bloomington, 68 Ill. 47.) But when the city demands the removal of such a structure, it, if permitted to remain thereafter, becomes a nuisance.”

The claim of the appellant that the second ordinance, which granted him the privilege of using the well, is part of the whole contract and that without it he would uot have accepted the franchise or erected the plant, in no way affects the question of law. He claims that the right to use the well was part of the consideration upon which he acted, and was intended as an inducement to him to accept the franchise and build the works. He must have acted with full knowledge of the fact that the municipality had no right or power to confer on him a right to a private use of the street, giving him a right to a permanent encroachment thereon and allowing him to create a purpresture. There being no power in the city to make a discrimination in the use of the streets in favor of appellant, and permit him to have a permanent private use of the same or to part thereof, if it has done so the most that can be said is, it amounted to a mere license that would not render him amenable to punishment for a violation of an ordinance of the city in obstructing the street. Such permission to so use the street is not binding upon the city, and is not irrevocable. The municipality having no power to grant such permanent use, there can be no estoppel against it from requiring the street to be open in its entirety, because no estoppel can arise from an act of the municipal authorities done without authority of law. Seeger v. Mueller, 133 Ill. 86; Pettis v. Johnson, 56 Ind. 139; Stevens v. St. Mary’s Training School, 144 Ill. 336; Day v. Grieb, 4 Cush. 433.

There was power in the city council to pass the ordinance repealing the former ordinance granting the right to appellant to use the street, for such former ordinance, being without authority of law, might well be rescinded. Appellant acquired no right under the former ordinance against the public, nor did he acquire any right against the municipality by estoppel, nor by any right conferred by the ordinance, because the right conferred was a mere private use, and that private use created a purpresture. This fact it was the duty of appellant to know, hence a right existed in the city council to repeal the ordinance theretofore enacted granting the right to appellant to have and use this well in the public streets of the city.

• It was not error in the circuit court of Logan county to dismiss appellant’s bill, nor in the Appellate Court for th'fe Third District to affirm its decree. . The judgment of the Appellate Court for the Third District is affirmed.

Judgment affirmed.

Mr. Justice Boggs took no part in the decision of this case.