Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1916-04-25

recorded was designated and marked a |
public square. surrounded by streets, |
alleys, lots and blocks; that in Mat
ting said lots. streets, alleys and SQUARE
in said town the commissioners did not
in all things comply with the act of
1888 then in force. entitled An act pro-
yiding for the recording of town plats.'
and by reason thereof they made
common law. and not a statutory. dedi-
cation Of the streets, alleys and the
public square aforesaid; that shortly
after said plating the town of Ste
phenson became incorporated and ac-
cepted the plat and dedication. and
that said commissioners proceeded to
sell to various parties the lots abut-
ting on said square, including said lots
Of appellant that abut said square on
the west side thereof: AYERS that the
only reference in the plat, or any GER
tiflcate thereto, to said square are the
words public square, written within
| four boundary lines drawn on the four
sides OF the square; that appellant, as
| the owner of the said three lots, and
| the owners of the other lots abutting
| on the square, became the owners in
| fee Of said square, subject only to the
right Of the public to have the same
remain and be used as public square,
| and was TO remain and continue for
! that use open and free from encroach-
ments of any kind; alleges that the
county OF Rock Island, without right,
| is about TO let contract and build on
the west half Of said square, directly
east and opposite to the front windows
of the said school building, in full view
| of the school children while attending
said school, jail building; that the
erection thereof will be a permanent
! and irreparable damage and injury 10
said property and buildings. and will
greatly and constantly embarrass, him
der and prevent the use and occupa-
! ton thereof in so ample ma0ner as is
now permitted; that the erection Of
such Jail will necessarily subject the
| communicates Of said church and the
children attending said school to many
great annoyances and inconvenience,
and will deprive them of the use OF the
| square as public square and obstruct
| the air and light and view. and subject
said square to a use not contemplated
by the dedication or by the purchasers
of lots abutting on said square, and
that such taking of appellants prop
erty is within the prohibition of the
constitution of Illinois. The bill finally
AYERS the county is not the owner of
said public square and has no right to
incumber it by erecting thereon jail.
No Answer Filed.
con notice and application for pre-
liminary injunction appellee appeared,
and without filing any answer filed af-
fidavits to contest said motion. On ap
pearance of appellee, appellant moved
the court for a rule on appellee to
plead, answer or demur to his bill of
complaint before the hearing of the
motion for preliminary injunction,
and also moved to strike the aff1davits
from the files. The court overruled
DUIu nOJlUIlS anu ulSullSStu TIC dppcl-
lant's bill at his costs.
Appellant insists that the court
erred in not striking the affldavits from
the files and in refusing to rule appel
lee to first answer or plead to the bill;
also, that the court erred in consider
ing the affidavits Of appellee and dis
missing appellants bill 1t is not car
Irect practice in this state, where no
answer or plea is filed to the bill, to
receive or consider affidavits where a
motion is made to dissolve an intunc-
ton. Such a motion would operate in
the same way as demurrer to the
Il bill, and being based on matters in
| trinsic and appearing on the face OF
II the bill no affidavits showing extra
neous matters could be used. After
! answer is filed denying the allegations
of the bill, upon motion to dissolve the
Injunction it is allowable to either
| party to introduce testimony or aft
davits to support the bill an answer.