delivered the opinion oe the Court.
It is urged by appellant that appellee having answered the bill, as first filed, could not urge as aground of demurrer to the amended bill, that thereby it appeared that the complainant had an adequate remedy at law.
The bill as first filed was based upon the theory that the complainant, being the owner of the fee of the street, had a right to have its use confined to purposes which were not inconsistent with the common use to which streets are devoted. By the amendment, the complainant urged as an additional ground of relief that there existed between him and the defendant such contractual relations as bound the defendant not to use any portion of the street in such manner as virtually to exclude him, the complainant, from using the same in the ordinary way.
There was by the amendment no abandonment of the ground for relief urged in the original bill, nor any change in the relief sought; there was merely set up an additional reason for relief.
The defendant might have answered the amended bill, entirely abandoning the matters set up in his first answer and insisting upon other defenses, but he could not demur to that which he had already answered, and his demurrer should have been confined to the amendment.
One can not answer and demur to the same matter.
An amendment to a bill, however trivial and unimportant, authorized a defendant, though not required to answer to put in an answer, making a new defense and contradicting his former answer. An amendment to a bill does not, however, enable a defendant who has answered the original bill to demur to an amended bill upon any cause of demurrer to which the original bill was open, unless the nature of the case made by the bill has been changed by the amendments. Daniell’s Ch. Pr., Vol. 1, p. 409, 5th Am. Ed.
A defendant can not, after he has answered an original bill, put in a general demurrer to the bill as amended, because the answer to the original bill will overrule the demurrer. The defendant must, in such case, confine his demurrer to matters introduced by the amendment. 1 Dan. Chy. Pr., 583, 5th Am. Ed.
The defendant could not, therefore, urge as a demurrer to the entire bill as amended, that the complainant had an adequate remedy at law, because no such defense to the original bill was insisted upon in the answer filed thereto.
The original and amended bill is an attempt by an abutting owner, holding also the fee of the street, to restrain the use of the highway for a public purpose.
The construction of the fence is immaterial. By the laying of tracks for a steam railway and the passing of locomotives and trains thereon, the use of so much of the street as is so occupied, in ordinary modes, is practically- prevented, the fence is for the protection of those using the remainder-of the street from injury by the cars and locomotives of the defendant.
It does not appear that the thirty-three feet reserved for ordinary use is not sufficient for such pui-pose.
We do not regard the case of Field v. Barling, 149 Ill. 556, which was an attempt to put a portion of a street toan exclusive private use, nor Ligare v. The City of Chicago, 139 Ill. 46, as inconsistent with the doctrine of Tibbets v. The West and South Towns St. Ry. Co., 54 Ill. App. 180, 153 Ill. 147.; Stewart v. Chicago General Railway Co., 58 Ill. App. 446; Philips v. Lake St. R. R. Co., 60 Ill. App. 471; Moses v. Pittsburg, Ft. Wayne & Chicago R. R. Co., 21 Ill. 516; Murphy v. Chicago, 29 Ill. 279; Stetson v. Chicago & Evanston R. R. Co., 75 Ill. 76; Patterson v. Chicago, Dan. & Vin. R. Co., 75 Ill. 588; C., B. & Q. R. R. Co. v. McGinnis, 79 Ill. 269; P. & R. I. Ry. Co. v. Schertz, 84 Ill. 135; Rigney v. Chicago, 102 Ill. 64; Penn. Ins. Co. v. Heiss, 141 Ill. 35; Corcoran v. Chicago, Mad. & Northern R. R. Co., 149 Ill. 291; White v. Metropolitan Elevated R. R. Co., 154 Ill. 620; and Chicago, B. & Q. R. R. Co. v. West Chi. St. R. Co., 156 Ill. 255; which are to the effect that a private individual may not restrain the lawful use of a public street for a public purpose.
It does not follow because the defendant has not, as a defense, insisted that the complainant has an adequate remedy at law, that a court of chancery will give to him the particular remedy which in such forum he seeks.
It is not claimed that the defendant is insolvent or unable to respond to any judgment which the complainant may recover, as was the case in Langabier v. Ry. Co., 64 Ill. 243.
We therefore think that the complainant should be left to his action at law, and we see no reason for concluding that such remedy has been lost by laches.
The trespass, if such, there be, has continued to this day.
The Supreme Court in I. B. & W. R. R. Co. v. Hartley et al., 67 Ill. 439, said: “ The doctrine most in consonance with our sense of justice is, where the fee of the street remains in the abutting land owner the corporation may grant the right to a railway company to lay its tracks along or across any street, but the company avails itself of its privilege at its peril. If, in laying its track, it causes a private injury to him who owns the fee in the adjoining-premises, it must make good the damages sustained.”
Appellant has not shown by his bill that he is entitled to restrain the use for a public purpose of this public street.
The ownership of the fee gives him no such right, nor does the contractual relation existing between him and appellee.
The decree of the Circuit Court is affirmed.