Maywood Co. v. Village of Maywood.

Mr. FRANCIS ADAMS and Mr. GEORGE M. GARNETT, for plaintiffs in error; that a private individual can not 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, cited Angell on Highways, § 284; Bigelow v. Hart. ford Bridge Co., 14 Conn. 565; O'Brien v. N. & W. R. R. Co., 17 Conn. 372; Paul v. Carver, 24 Penn. 207.

Mr. MASON B. LOOMIS, for defendants in error; that the proper remedy was in equity, cited Morris v. Thomas, 17 Ill. 112; Frazier v. Miller, 16 Ill. 48; Martin v. Dryden, 1 Gilm. 187; Haworth v. Taylor, 108 Ill. 276.

As to misjoinder of parties: Baird v. Jackson, 98 Ill. 92; Gage v. Chapman, 56 Ill. 311; Finch v. Martin, 19 Ill. 105; Ryan v. Trustees, 14 Ill. 20; 1 Daniell s Ch. Pr. 4th Ed. 303, note 3; Murray v. Hay, 1 Barb. Ch. 59; Putnam v. Sweet, 1 Chand. (Wis.) 286.

WILSON, J. This was a bill in equity brought by the village of Maywood, Henry W. Small and Joel H. Hubbard, appellees, against the Maywood Company and Jabez W. Potter, appellants; the principal relief sought being to obtain a decree declaring block 58 in the village of Maywood to be a public park, and to subject the same to the control of the municipal authorities of said village. The case was heard in the court below upon the pleadings and proofs, and the court found that the matters alleged in the bill were true; that the Maywood Company in 1869, being then the owner of the land comprising the present village site of Maywood, laid out and platted the same into blocks and squares as a suburban village, and in doing so designated and set apart block 58, containing about sixteen acres, as and for a public park; that the company caused the plat to be recorded in the recorder's office of Cook county, and thereafter, in order to induce persons to purchase and improve lots and locate in the village, they commenced improving and beautifying said park by constructing walks, lakes, rustic bridges, dancing floors and other appliances for the use and amusement of the public, and also in various ways, by cir

Maywood Co. v. Village of Maywood.

culars and pamphlets, advertised the same as a public park ; that, induced by such acts and representations of said company, appellees, Small and Hubbard, as also others, bought lots of the company, which they improved and have ever since resided upon; that the village of Maywood was subsequently, in 1881, incorporated under the general act for the incorporation of cities and villages. The court found as a fact, and so decreed, that said block was dedicated as a public park, and had been accepted as such by the public within a reasonable time after such dedication; and further, that the village of Maywood, when subsequently incorporated under the general act, offered to take the charge and control of the same. Upon a careful consideration of the evidence we are of opinion that a common law dedication of the block as a public park was sufficiently shown, and that the decree of the court in that respect is supported by the proofs.

We are also of opinion that the complainant's remedy was properly sought in a court of equity. The Maywood Company having, after the dedication of the land as a park, sought to reclaim it as private property by assuming to control it, placing a mortgage upon it to secure a private indebtedness, and otherwise asserting ownership, a court of law could not afford adequate relief. Chancery alone could dispose of the incumbrances and settle the rights of all the respective parties. 1 Gil. 187; 4 Paige Ch. 510.

Nor is it perceived that there was any misjoinder of parties. The rule seems to be that where there is an identity of interest in the question involved, and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful act, there is no misjoinder. 1 Dan. Ch. Pr. 345; Hickling v. Wilson, 104 Ill. 58; Trustees of Watertown v. Cowen et al., 4 Paige Ch. supra. Here the producing cause of the injury is one and the same as to all the several complainants, namely, the threatened destruction of a public park, in which the village of Maywood as an entity, and each one of its individual property owners and tax payers, have a like interest, and the relief sought by each is identical.

As to the merits of the case they are plainly, under the

Powell v. Kelley.

showing made by the proofs, with appellees. The chancellor properly, we think, found that the mortgagees, at the time of taking the mortgage, knew or were chargeable with notice. that the block in question had been dedicated to the public as a park, and was no longer subject to the disposal of the Maywood Company.

Finding no material error in the record, the decree of the court below will be affirmed.

Decree affirmed.

ELIAS D. POWELL ET AL.

V.

DAVID KELLEY ET AL.

1. PROVINCE OF JURY.-It is for the jury to construe the evidence and give it such weight and effect as in their judgment it is justly and fairly entitled to, and in the absence of anything showing passion or prejudice on their part or indicating that they were misled, an appellate court should not ordinarily interfere with their finding.

2. INSTRUCTION ON NEGLIGENCE.-The modification of the court in the instruction on negligence that "negligence may be inferred or proved by facts and circumstances, provided they are sufficient in the minds of the jury to convince them that there was negligence," was proper.

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed December 16, 1885.

Messrs. MCCAGG & CULVER and Mr. EDGAR MADDEN, for appellants; that the modification of the instruction was erroneous, cited Toomey v. Ry. Co., 91 Com. Law R. 146; Quinlan v. Sixth Avenue R. R. Co., 4 Daly, 487; Counselman v. Whitehair, 14 Bradwell, 74; Hunting v. Baldwin, 6 Bradwell, 547.

Mr. GEORGE P. WHITCOMB, for appellees; as to proof of negligence, cited T. W. & W. R. R. Co. v. Beggs, 85 Ill. 80;

Powell v. Kelley.

Hunt v. Missouri River R. R. Co., 14 Mo. Appeal R. 171; Gardner v. Heartt, 3 Denio, 236; Renick v. O'Hara, 6 Blatchf. 274; Cotterell v. Starkey, 8 C. & P. 691; Fletcher v Ryland, 3 H. L. 330.

PER CURIAM. The appellees sued the appellants in case, and recovered a judgment for $210 and costs, for the loss of a horse, alleged to have been killed by the negligence of an employe of the appellants. It appears that while the appellees' team was standing on one of the streets of the city of Chicago, a span of horses belonging to the appellants, in charge of and being driven by their teamster, became frightened and unmanageable, and ran into appellees' team, causing an injury to one of their horses, from which he shortly afterward died.

With the exception of the modification of one of the instructions to the jury asked by the appellants, the questions presented by the record are purely questions of fact. We have examined the evidence and are of the opinion that it sustains the verdict and judgment. There was evidence tending to charge the appellants' drivers with negligence, and we think the jury were warranted in finding that such negligence was established, and also that the appellees' driver was guilty of no negligence which materially contributed to the injury complained of.

It was for the jury to construe the evidence and give it such weight and effect as in their judgment it was justly and fairly entitled to, and in the absence of anything showing passion or prejudice on their part, or indicating that they were misled, an appellate court should not ordinarily interfere with their finding.

The appellants asked an instruction that the burden of proving negligence was on the party alleging it; that such proof must be made by a preponderance of evidence; and that if the jury found that the appellants' driver was guilty of no negligence, or that the weight of evidence was in favor of the appellants, or was equally balanced, the appellees could not recover. This instruction was modified by the court by add

VOL. XVII. 17.

McMillan v. McCormick.

ing thereto the following: "But in this connection, the court instructs the jury that negligence may be inferred or proved by facts and circumstances, provided they are sufficient, in the minds of the jury, to convince them that there was negligence." We think that the proposition contained in this modification is clearly the law, and it is not apparent to us that the appellants could have been prejudiced thereby.

There being no error in the record the judgment will be affirmed.

Judgment affirmed.

JOHN H. MCMILLAN ET AL,

V.

CYRUS H. MCCORMICK, JR.

This case involves the construction of section 11 of the act in relation to limitations, chapter 83, R. S., and is affirmed to allow the case to go directly to the Supreme Court for decision.

APPEAL from the Superior Court of Cook county; the Hon. HENRY M. SHEPARD, Judge, presiding. Opinion filed December 16, 1885.

Mr. ROBERT B. KENDALL, for appellants.

Messrs. JENKINS & HARKNESS and Mr. W. T. BURGESS, for appellee.

PER CURIAM. This was a bill in equity brought by appellants against appellee, McCormick, and Gerhard Foreman, to enjoin the foreclosure of a trust deed.

The bill alleges that the complainants are severally seized in fee of two certain parcels of land situate in the city of Chicago; that complainant McMillan obtained title to one of said parcels under a sheriff's deed, upon a sale made by virtue of a judgment recovered by him at the July term, 1875, of the Superior Court of Cook county, against Samuel J. Walker;