Allott v. American Strawboard Co. , 237 Ill. 55 ( 1908 )

Mr. Justice Carter

delivered the opinion of the court:

Manifestly, from this record the only thing attempted to be settled by the decree was the question whether the rights of the various plaintiffs in error arose solely from the deeds in question, or if they possessed an easement, acquired by prescription, in the use of watery over and above that called for by the deeds, to the amount such excess had habitually flowed through the east channel since the erection of the five-foot dam in 1871.

. The only question we deem it necessary to discuss is the jurisdiction of a court of equity to grant the relief specified in said decree. The jurisdictional question is not raised by the 1 pleadings and only incidentally in the briefs of plaintiffs in error, but this court may of its own motion interpose the objection of want of jurisdiction over the subject matter of the suit at any stage of the proceedings. (Gage v. Schmidt, 104 Ill. 106.) The jurisdiction of equity was invoked in the original bill to restrain plaintiffs in error from re-building the dam, but that part of the remedy is not now urged and does not seem to have been since the time the dam was re-built. The only remedy now urged giving equity jurisdiction is the settling of the rights of the parties, and the court by its decree entertained jurisdiction for that purpose on the ground that plaintiffs in error’s claim to a part of the water rights by prescription amounted to a cloud upon the title of defendants in error.

A cloud on a title is a semblance of a title, either legal or equitable, or a claim of an interest in lands appearing in some legal form but which is, in fact, unfounded. (Rigdon v. Shirk, 127 Ill. 411.) -It is a title or encumbrance apparently valid but actually invalid. (Goodkind v. Bartlett, 136 Ill. 18.) It exists where the claim of an adverse party to l^nrl is valid upon the face of the instrument or the proceeding sought to be set aside, and extrinsic facts are required to be established to show the supposed conveyance to be inoperative and void. (Reed v. Tyler, 56 Ill. 288.) This court has held that a bill will not lie to remove a mere verbal claim or oral assertion of ownership in property as a cloud upon the title. Such clouds upon title as may be removed by courts of equity are instruments or other proceedings in writing which appear upon the records and thereby cast doubt upon the validity, of the record title. (Parker v. Shannon, 121 IllIll. 452.) See Roby v. South Park Comrs. 215 Ill. 200, as to whether the existence of an ordinance looking towards the condemnation of property, without any attempt to enforce it, would constitute a cloud upon the title. Up to the time the answers were filed in this proceeding there was nothing of record that would justify a court of equity in interfering to remove a cloud on the title of defendants in error. While it has been held that the semblance of a title, such as would justify the filing of a bill in equity to remove a cloud, may exist on account of the filing of a bill in equity claiming title to real estate, even though it had been dismissed on the merits, (Shults v. Shults, 159 Ill. 654,) yet defendants in error could control their own bill, no cross-bill having been filed, (Langlois v. Matthiessen, 155 Ill. 230,) and therefore, up to the time of entering the decree, they could dismiss it any time they saw fit. It is true that in other jurisdictions, under somewhat similar circumstances, courts of equity have taken jurisdiction to remove a cloud upon the title. (Oman v. Bedford-Bowling Green Stone Co. 134 Fed. Rep. 64; Riverside Land and Irrigation Co. v. Jansen, 66 Cal. 300; Reservoir Co. v. Water Supply Co. 27 Colo. 532; see, also, Lyon v. Ross, 4 Ky. 466; Gould on Waters,—3d ed.—sec. 519.) But it will be noted that in all those cases there appears to have been an immediate danger of rights being interfered with unless a court of equity assumed jurisdiction. It has been held that chancery will not intervene to sustain the right to a water-course, or to enjoin the use thereof, until after the legal title is first settled, the question in dispute being the construction of certain grants. (Prentiss v. Larnard, 11 Vt. 135.) ■ Where defendant asserted title to an easement in a water-course across complainant’s premises, and had gone on the premises, without the complainant’s consent, to repair the stream for more than twenty years, and had destroyed a gate erected by complainant to lessen the flow of water, equity would not take jurisdiction to quiet title in the easement until the legal right had been decided. (DeHanne v. Bryant, 61 N. J. Eq. 141; Earnham on Waters and Water Rights, secs. 474, 829.) It has been frequently held that in an attempt to obtain an injunction under circumstances similar to those set up on this record, equity will not interfere until the legal title has been established by law. (Maloon v. White, 57 N. H. 152; Outcalt v. Helme Co. 42 N. J. Eq. 665; Peters v. Hansen, 55 Mich. 276; State v. Sunapee Dam Co. 70 N. H. 458.) Where three persons were severally in possession of certain lands bordering on a river, the lands of one being on the east bank and those of another on the west bank and those of the third on an island in the center, a court of equity properly refused to take jurisdiction to settle their respective rights as to the use of the water until such rights had been established at law. Stolp v. Hoyt, 44 Ill. 219; Howell Co. v. Glucose Co. 171 id. 350; Bradfield v. Dewell, 48 Mich. 9.

We are of the opinion that under the authorities in this State there was no such cloud on the title as to justify equity in taking jurisdiction here, either at the time of filing the original bill or when the decree was entered.

It may well be doubted, for another reason, whether equity should assume jurisdiction in this case. It has been repeatedly held that equity will not assume jurisdiction and issue an injunction unless the party complaining shows that he will be injured if relief is not granted. (Shonk Tin Printing Co. v. Shonk, 138 Ill. 34.) And it is also a rule that thé allegations must be clear and distinct and supported by satisfactory evidence that substantial injury will be sustained. (Springer v. Walters, 139 Ill. 419) It has also been held that to authorize an injunction there should not only be a clear and palpable violation of the rights of the complainant, but the rights themselves should be certain and such as can be clearly ascertained and measured. (Olmsted v. Loomis, 6 Barb. 152; Tipping v. Eckersley, 2 K. & J. Ch. 264.) The courts will not grant an injunction to allay the fears or apprehensions of individuals unless there is a reasonable probability of the threatened acts" complained of being committed. (16 Am. & Eng. Ency. of Law,— 2d ed.—p. 361.) This saíne doctrine has been applied in actions to settle title where the apprehensions appear to be unfounded. (6 Am. & Eng. Ency. of Law,—2d ed.— p. 153, and cases there cited.) There is nothing shown in this record which indicates that there is any reasonable ground for believing that plaintiffs in error will undertake to make any change in the dam, or in the use of the water flowing through the east channel, to the detriment of the defendants in error. Furthermore, there is a controversy as to whether, on this record, it could be positively and certainly ascertained how high a.dam the deeds in question authorized to be constructed at the point in question or to how much water plaintiffs in error were entitled under said deeds. Surely it cannot be claimed that a reading of the deeds, in connection with the pleadings in this case, makes, those points clear and plain, and as we have said, the decree does not attempt to settle this. We cannot see that the decree will be of any particular benefit to anyone, except, perhaps, in so far as the fact that, it finds, in a general way, that plaintiffs in error have no prescriptive rights in the water might be deemed of benefit to defendants in error’s title. While the decree found that the only rights of plaintiffs in error arise under the deeds and not from prescription, it does not attempt to settle the practical questions involved, such as whether, under those deeds, plaintiffs in error are entitled to have a five-foot dam at the point in question, or whether the dam, if desired by plaintiffs in error, could be erected higher, or whether it could be lowered, and how much water the deeds actually call for. The decree does not attempt to change the present condition of the dam. Defendants in error do not seek to deprive plaintiffs in error of the right to make repairs pursuant to the provisions of the deeds, and the decree does. not. attempt to regulate or change in any way the use of the water now being sent through the east channel by means of. the dam and the gates at the upper or south end of said A-lden’s island. A court of equity is not called upon to .do a vain thing, and it will not entertain a bill simply to vindicate an abstract principle of justice. Patterson v. Northern Trust Co. 230 Ill. 334; Joliet and Chicago Railroad Co. v. Healy, 94 id. 416; Werden v. Graham, 107 id. 169; Seeger v. Mueller, 133 id. 86; Beattie v. Whipple, 154 id. 273.

For the reasons stated equity does not have jurisdiction of the subject matter here in dispute. The decree of the circuit court is therefore reversed and the cause remanded, with directions to dismiss the bill without prejudice to further proceedings.

j^everse¿ an¿ remanded, with directions.