KAMPER v. CITY OF CHICAGO, 215 F. 706

BAKER, Circuit Judge. Appellant’s bill, at appellee’s motion, was dismissed on the ground that the facts alleged were not sufficient to entitle appellant to equitable relief. In brief the allegations are these; Prior to 1897 one Mauland was the owner of two lots in Chicago, on which he had erected an apartment building. Without Mauland’s knowledge or consent, without proceedings to assess the just compensation, and without paying any compensation to Mauland, appellee in 1897 constructed a water tunnel across the lots, 70 feet below the surface.

This tunnel is a part of appellee’s system for taking water from Bake Michigan and supplying it for pay to the inhabitants. In 1907 Mauland conveyed the lots and improvements to Romano, who during his ownership had no knowledge of appellee’s trespass. Romano conveyed the property in 1908 to appellant, who was ignorant of the trespass until one month before bringing this suit. By maintaining and using the tunnel appellee is committing a continuing trespass upon appellant’s property.

On account of weak and inferior construction the tunnel is liable to crumble to pieces at any time, and so is a constant menace to the safety of appellant’s building. The location of the tunnel is such as to interfere with appellant’s operations if he should attempt to erect "a larger structure requiring deeper foundations. Appellant has annually paid to the public authorities taxes upon the property, including that part seized and held by appellee. The prayer is for a mandatory injunction to compel appellee to remove the tunnel and restore the lots to their original condition.

Affirmance of the decree might be rested on the bill’s failure to aver that Mauland, after the original entry without his knowledge or consent, remained in ignorance of the trespass, and had not settled with appellee for the taking of his property; but nevertheless we will consider appellant’s real contention. Another preliminary matter requires some notice. Appellant charged that the construction of the tunnel was inferior and defective.

But inasmuch as appellant carefully refrained from asking that appellee be required to put the tunnel in safe condition (which would be an affirmance of appellee’s possession on condition of making the tunnel safe and paying just compensation if appellant should be entitled to it), we regard the allegation as immaterial for any purpose except to strengthen appellant's one demand that the tunnel be removed. And the answer to that demand seems to us quite clear and simple.

When a public or quasi public corporation, having the delegated power of eminent domain, without condemnation proceedings enters upon land (which the owner would be powerless to hold against appropriation for public use) and thereupon completes a public work and is using it in public service, the landowner will not be permitted, by ejectment or mandatory injunction, to retake possession -and thus break in two a railroad or a water tunnel or other work which is being used as an entirety for the public good.

This is so, not because equity refuses to frown upon the imlawful seizure, but because equity will not tolerate a possessory demand being turned into a means of oppression and extortion, and because a consideration of the rights and convenience of the public outweighs the qualified possessory right of the owner—a right he could not have absolutely maintained even initially as against the public use. And equity sufficiently indicates its disapproval of the wrongful taking by pointing the owner to the law courts, where his right to compensation can be determined. Osborne v.

Missouri Pacific Railway Co., 147 U S. 248, 13 Sup Ct. 299, 37 L. Ed. 155; New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820; McCullough v. City of Denver et al. (C. C.) 39 Fed. 307; McCarthy et al. v. Bunker Hill & Sullivan Mining & Concentrating Co. et al., 164 Fed. 927, 92 C. C. A. 259; Whittlesey v. Hartford, Providence & Fishkill R. Co., 23 Conn. 421; Leonard D. Fisk et al. v. City of Hartford, 70 Conn. 720, 40 Atl. 906, 66 Am. St. Rep. 147; Doane v. Lake Street El. R. R. Co., 165 Ill. 510, 46 N. E. 520, 36 L. R. A. 97, 56 Am. St. Rep. 265; Johnson v. United Rys. Co. of St.

Louis et al., 227 Mo. 423, 127 S. W. 63; Higbee & Riggs v. Camden & Amboy Railroad & Transportation Company, 20 N. J. Eq. 435; Grey, Attorney General, ex rel. Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642; Lake Drummond Canal & Water Co. v. Burnham et al., 147 N. C. 41, 60 S. E. 650, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527; Griffin v. Southern Ry. Co., 150 N C. 312, 64 S. E. 16. In New York City v. Pine, supra, the bill to enjoin the city from diverting water from complainant’s premises was filed before any diversion had occurred.

And so the bill appealed to equity’s jurisdiction to prevent a threatened trespass. But even so the mandatory injunction of the Circuit Court was reversed for the purpose of restricting complainant to an assessment of damages either in an action at law or in the pending suit wherein the jurisdiction in equity had been seasonably invoked. Here, however, the bill was not filed until the public work had been devoted to public use for 15 years; and so the bill cannot properly be retained for any purpose. The decree is affirmed.