Parish v. Vance , 110 Ill. App. 50 ( 1903 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is urged that the injunction order is erroneous, first, because the bill is not properly verified; second, that there is no showing of facts in the bill or affidavit warranting an injunction without notice; and third, that the bill is defective upon its face aiyl Shows that the complainants have an adequate remedy at law.

The first of these objections is based upon the phraseology of the affidavit attached to the bill of complaint, wherein it is said that the contents of the bill are true of the affiant’s own knowledge, “except as to matters which are therein stated to be alleged upon information and belief, and as to those matters he believes them to be true.” We are unable to see any force in the objection that there is an essential difference in meaning between what is “stated to be upon information and belief,” and ivhat is “stated to be alleged "upon information and belfef.” Such matters as are stated in the bill of complaint to be alleged on information and belief can be ascertained by reference to the bill. Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 Ill. App. 350.

It is complained that the injunction was improperly granted without notice. Ho court, judge or master is authorized to grant an injunction without notice “unless it shall appear from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice.” (R. S., Chap. 69, Sec. 3.) It is not enough for the bill to state that complainants’ rights will be unduly prejudiced, but facts must appear either in the bill or affidavit accompanying it, from which such conclusion may be drawn. The writ ought not to issue without notice upon the bare possibility of an injury or a mere apprehension not founded upon a substantial basis of fact. Suburban Construction Co. v. Naugle, 70 Ill. App. 384-398; Chi. Tel. Co. v. N. W. Tel. Co., 199 Ill. 324-327. In the case before us the bill states that the defendants’ representatives did more than threaten. They actually notified complainants that the electric light service was about to be withdrawn from the leased premises. The bill sets forth that the furnishing of said electric light is included in said lease as an appurtenance; that without the electric light it would be impossible for complainants to transact their business; that the effect of such withdrawal would be to render the premises entirely untenable for business purposes, cause a loss of customers, greatly depreciate and permanently damage complainants’ reputation and business, and inflict irreparable injury. It further appears from the bill that the rooms occupied by complainants are so situated that they have little or no artificial light, and that there is practically no other means of lighting said premises, except by the electric light heretofore furnished from a plant which is the private property of .and operated by the defendants. This service the latter have not merely threatened, but positively stated they are about to withdraw. These statements, if true, constitute a state of facts from which the conclusion may be drawn that the appellees were about to be unduly prejudiced if appellants were not enjoined from cutting off the light; and from the notice given to the complainants that the service of electric light would be discontinued, the inference may very well be drawn that it might be so discontinued at any moment. Upon the whole, we are of the opinion the issue of the injunction without notice was justified by the averments of the, bill, although a fuller recital of facts tending to show that notice of the application would be prejudicial, might readily have removed any room for controversy.

It is further urged that upon the face of the bill appellees have an adequate remedy at law. The contention is that as no express provision was made for electric light service by the terms of the.written lease under which appellees occupy the premises, the right to such service could pass only as an appurtenance of the premises leased; and it is insisted that the bill fails to state facts upon which such implication may be based. The bill shows that appellees nad occupied the premises under "their lease from May 1, 1902, a period of nearly eight months, receiving meanwhile the benefit of the electric light service without any objection on the part of defendants. It is alleged that prior to the execution of the lease appellees were informed by one of the appellants who was acting as agei\t of the building that the electric light service would be included as appurtenant to the lease. The fact that after the execution of the lease this service continued to be furnished without objection for so long a time tends to show that appellees themselves, regarded and treated it as appurtenant to the lease. The right to the light in controversy appears, under the circumstances as stated in the bill, to be “necessary or essential to the proper enjoyment of the estate granted.” Jarvis v. Seele Milling Co., 173 Ill. 192-195. If so, it apparently passed as an “appurtenance” granted by the terms of the lease. Finding no error the order of the Superior Court is affirmed.