eral issue was pleaded, and upon the trial there was a verdict for the plaintiff on the first, third, fourth, and fifth counts of the amended declaration, and the damages were assessed at $2,500. Judgment was entered on the verdict, and the Appellate Court for the Third District affirmed the judgment. It was alleged in each of the counts that plaintiff was the wife of Harry Summers, that he was shot and killed by one Marcum, and that plaintiff was thereby deprived of her means of support. The first count further alleged that defendants were engaged in selling intoxicating liquors; that they sold such liquors to Harry Summers, in consequence of which he became intoxicated, and by reason of his intoxication he, without reasonable and probable cause, unlawfully assaulted Marcum, upon whom he sought to inflict great injury, and thereupon Marcum shot and killed him. The next count, on which the verdict was based, was the third, in which it was alleged that defendants sold Harry Summers intoxicating liquors, causing his intoxication, and in consequence thereof he became quarrelsome and abusive, and issued a challenge to fight Marcum, and, being unable to use ordinary care in his own behalf, became involved in a quarrel, which he provoked by reason of his intoxication, and was killed by Marcum. The fourth count charged the sale of liquors by the defendants to Marcum, causing his intoxication, and alleged that in consequence of such intoxication he assaulted and killed Summers. The fifth count charged the sale of intoxicating liquors by defendants to both Marcum and Summers, causing the intoxication of both, and alleged that in consequence of such intoxication they became unable to exercise ordinary care in their own behalf, and engaged in a fight, and, in consequence of their intoxication, Marcum shot and killed Sum mers. The evidence tended to prove the following state of facts: Harry Summers was the husband of plaintiff. The defendants kept a saloon in Weldon, and there was a gambling room, run by Dick Greenwood, above the saloon. There was no communication between the saloon and the gambling room. Access to the gambling room was by an outside stairway. Summers had been drinking on the day of his death, in defendants' saloon, and went to the gambling room about 11 o'clock and engaged in playing poker. He remained there until after 2 o'clock, when he was killed. During this time he and others gave money to one of the employés of the room, who went downstairs and bought liquor in the defendants' saloon, and brought it up to the gambling room, where it was drank by Summers and his associates. This was repeated several times, and Summers was under the influence of the liquor. There was a controversy between Summers and C. C. Murdock, one of the other players, over a jackpot that Murdock had won. Summers claimed that Murdock had not put in a sufficient number of chips, and Murdock reached over to count the chips, when Marcum came into the room. Marcum was a stranger in Weldon, and a farm hand living in the country near there, but was an acquaintance of Murdock's. He had also been drinking liquor at defendants' saloon. Marcum spoke to Murdock, and, while it is difficult to tell from the evidence just what he said, it was probably to this effect: "How are you making it? If you are in the right, stick to it, or, if in the wrong, let it go." This angered Summers, who asked Marcum what he had to do with it, and Marcum replied, in substance, that he had a good deal to do with it. Summers sprang up, saying he could whip Marcum, and rushed at him, throwing off his coat. He struck Marcum in the face, and Marcum, with one arm raised to ward off the blow, fired two shots from his revolver held in the other hand, and killed Summers. Summers was a carpenter and contractor, and one of the board of trustees of the town of Weldon. On the trial, John Lisenby, president of the town board of Weldon, was called and examined as a witness on behalf of plaintiff, for the purpose of showing that he had called the attention of the defendant Baker to the fact that a gambling room was being conducted in the place where the killing occurred. The defendants objected to the questions put to the witness on that subject, but their objections were overruled, and he testified that he had called Baker's attention to the fact a year or more before Summers was killed. Defendants moved to strike out the answer, but their motion was denied. It is plain that this testimony did not tend in any degree to sustain plaintiff's cause of action, or to prove the issue on her part. It was proved that Summers was the husband of plaintiff, and that he was killed by Marcum, and there was no controversy about these matters. The questions in dispute were whether there were sales of intoxicating liquor by defendants to Summers or Marcum, or both; whether Summers or Marcum, or both of them, became intoxicated as the result, in whole or in part, of the liquor so sold; and whether such intoxication was the effective cause of Summers' death. It was necessary for plaintiff to prove the sale of liquor, consequent intoxication, and that such intoxication caused the death of her husband. Brannan v. Adams, 76 Ill. 331; Shugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359; Flynn v. Fogarty, 106 III. 263; Meyer v. Butterbrodt, 146 Ill. 131, 34 N. E. 152. The fact that Baker, who owned the building, knew that there was a gambling room run by Greenwood upstairs, neither tended to prove the alleged sale or intoxication, nor that such intoxication was the cause of Summers' death. It could have had no other purpose or effect than to raise a prejudice in the minds of the jury against the defend ants concerning a separate and distinct matter, on the ground that one of them assented to the use of his property for the unlawful purpose. The ruling was wrong. The first instruction given at the request of plaintiff was an abstract proposition of law, stating the liability created by the dramshop act, and the right of action thereby given, substantially in the words of the statute; stating the liability to be "for all the damages sustained, and in this case not exceeding the sum of $5,000." The instruction contained no other reference to the case, and no reference to the evidence, and did not require proof of facts which would create a liability. The instruction was erroneous in substantially telling the jury that the defendants were liable for the damages sustained, not exceeding the sum of $5,000, without proof of the necessary facts, and merely because the statute provided for a liability. The second instruction told the jury that they should find the issues for the plaintiff if she had established by a preponderance of the evidence the material allegations of any of the counts in the amended declaration. There was no instruction telling the jury what the material allegations of the several counts were, and what were the material allegations was a matter of law for the court. Although it is a practice not to be commended for the court to refer the jury to the declaration for the issues, it has not been considered error to make such reference where the instruction requires proof of the averments of the declaration. The proper method is for the court to inform the jury, by the instructions, in a clear and concise manner, at to what material facts must be found to authorize a recovery. The averments in the declaration which would be clear to a lawyer would often be obscure and unintelligible to the average juryman. Moshier v. Kitchell, 87 Ill. 18. Where the jury are not only referred to the declaration to determine the issues, but are instructed to find a verdict for the plaintiff if the material allegations of the declaration are proved, they are left to decide, as a matter of law, what are the material allegations, and might conclude that some allegation essential and material in the law was not material or necessary to be proved to justify a recovery; and such an instruction as this was held to be undoubtedly erroneous in Toledo, St. Louis & Kansas City Railroad Co. v. Bailey, 145 Ill. 159, 33 N. E. 1089. The fourth instruction advises the jury that if the killing of Summers was a result or in consequence of the sale or gift of intoxicating liquor by defendants to him, and the negligent act of a man named Doc Marcum, then, if the sale to Summers was the effective cause of the injury, the sale might be regarded as the proximate cause of the killing. It will be seen that this was an involved and confused statement, at best, and there was no evidence tending to show that any negligent act of Doc Marcum contributed in any way to the death. The killing was his intentional act in repelling the assault, and the instruction twice predicates the liability upon the sale or gift of liquor to Summers. The statutory liability does not rest alone upon the sale or gift of liquor, but also upon the intoxication resulting from such sale or gift, and the consequent injury. Defendants would not be liable because they sold liquor to Summers, or because the jury might deem such sale the effective cause of the injury, but would be liable on account of the sale, and intoxication resulting from such sale, if such intoxication was the effective cause of the injury. The tenth instruction also bases the liability wholly upon the sale or gift of liquor by the defendants to Summers or Marcum, without any requirement that such sale or gift should have produced the intoxication of either, or that such intoxication should have been the cause of the killing of Summers. It stated that if the sale or gift of liquor to Summers or Marcum, concurring with some other event, produced the killing, and but for the sale or gift the injury would not have happened, defendants would be responsible, even though the sale or gift was not the nearest cause in the order of time. This instruction is based in part upon the hypothesis of a sale or gift by the defendants to Marcum, without requiring any proof of intoxication; and, even if he became intoxicated, if he would have defended himself, when assaulted, in the same manner, whether intoxicated or sober, and would have killed his assailant, the killing would not result from his intoxication. In that state of fact, the only connection between the killing and the intoxication would relate to the origin of the quarrel, and the question whether Summers would have assaulted Marcum if he had not been drinking liquor. The eleventh instruction stated that, under the law, negligence may be the proximate cause of an injury of which it is not the immediate cause. This was a mere abstract proposition of law on the subject of negligence, and it is impossible to connect it in any way with the case, since there was no evidence of any negligent act causing tae injury. It would be likely to be misleading, and should not have been given. The court gave at the request of the defendants 14 instructions, and they also presented 30 others which they asked to have given, but which were refused. The refusal to give this volume of instructions is the subject of complaint. It would be an unjustifiable waste of time and space to comment upon them serially. We think they were all properly refused, either as mere repetitions of rules of law already given to the jury, or as not being correct statements of the law. The judgments of the Appellate and Cir 1. The board of trustees of a village have a right to inclose a public square so that teams and wagons cannot pass through it. 2. Whether or not a certain street crossed a public square, on both sides of which it extended, depended on the intention of the original proprietors or dedicators of the addition. 3. A public square in a village intersected a certain street. The plat of the town bore in the space claimed as a square the words "Public Square." No lines were drawn across the space so marked to indicate that the street was intended to cross the square, and the note of the surveyor to the plat recited that all the crossstreets except certain ones (mentioning the street in question) were 40 feet wide, and crossed the others at right angles. If the street in question did not cross the square, it would not cross all the other streets at right angles. Held, that no intention was shown to dedicate a street within the square. 4. An individual is not entitled to restrain an obstruction to a street unless he shows injury to his property distinct and separate from the injury to the public at large. 5. The mere fact that an obstruction of a street causes one inconvenience in going from the street in front of his house to a particular part of the city does not constitute such special damage as to entitle him to maintain injunction. Appeal from circuit court, Logan county; Jno. H. Moffett, Judge. Suit by James A. Glenn against William V. Guttery and others, as trustees of the village of Middletown, and another. From a decree for complainant, defendants appeal. Reversed. This is a bill for injunction, filed in October, 1901, in the circuit court of Logan county, by the appellee, James A. Glenn, against the appellants, William V. Guttery, as president, and six other persons, composing the board of directors of the village of Middletown, and Walter Rayborn, clerk of said village, alleging that a certain street, shown on the plats hereinafter mentioned, and called "Union Street," runs east and west, and crosses the public square in said village, and praying that the appellants, as the board of trustees of said village, may be enjoined from maintaining a fence upon and across said Union street at the places named in the bill. A preliminary injunction was granted, restraining the appellants from erecting fences, tabernacle, building or buildings, planting trees, etc., upon the public square across the line of Union street in said village. An answer was filed by the present appellants, who were defendants below, denying the material allegations of the bill. The ¶ 4. See Municipal Corporations, vol. 36, Cent. Dig. 1503. 66 N.E.-20 court refused to dissolve the preliminary injunction upon the motion of the appellants. The cause was referred to a master in chancery to take and report the evidence. Upon the hearing of the cause the court entered a decree, finding that appellee, Glenn, owned certain property fronting upon Madison and Union streets, as shown upon the plats, and finding that Union street extended upon, along, and across the public square as designated upon the plat, and that the appellants were erecting, or causing to be erected, a chain around what is designated on the plat as the "Public Square," thereby inclosing and obstructing Union street where said street crosses the public square, and that appellants were intending to place and did place obstructions in said Union street by placing posts and a continuous chain across the same, thereby preventing said street from being used for travel by wagons and teams and persons riding on horseback; and the court found that, to the extent that the injunction issued to prevent obstructions in Union street, the same should be made perpetual. By the terms of the decree the appellants and their agents were ordered and directed to remove from Union street any obstructions in the way of fences or chains, so that the same might be used by the public for travel. The present appeal is prosecuted from the decree so entered by the circuit court. The original town of Middletown, which was then in Sangamon county, was laid out in October, 1832. The following is a copy of the plat of said original town, together with the surveyor's note attached thereto, and the certificate of acknowledgment thereof by the owner: running back 120 feet. Main street is 80 feet wide. Main cross-street is 50 feet wide; the balance of the streets are 40 feet wide, situate in the S. E. corner of the E. 2 N. W. 4 section No. 18 T. 19 N. West. Given under my hand Oct. 13, 1832. James C. Stephenson, C. S." "State of Illinois, Sangamon County-ss. This day personally appeared before the undersigned, a justice of the peace in and for said county, Hiram S. Allen, who acknowledged that he had the town of Middletown, of which the within is a plat, laid out, that the streets, alleys and lots are as therein described, and that the same is his voluntary act for the said purpose. Given under my hand and seal this 19th day of October, A. D. 1832. Thomas Moffett, Jus. Peace." "Recorded Dec. 20, 1832, Book F, page 167." In 1836 an addition to Middletown was laid out. The original plat of this addition, as it appears in the record, extends from First street on the south to Fourteenth street upon the north. The following is a plat of the addition to Middletown from Third street to Eleventh street, inclusive, together with the surveyor's note and certificates, and the certificates of acknowledgment attached to or indorsed upon said plat: "Surveyed for Jno. W. Casey, Ambrose C. Hankinson and H. S. Allen the E. 1⁄2 of the N. W. 4 of sec. 18, in town 19 N., in range 4 west, beginning at the 14 sec. corner on the N. of the sec. which I laid out in lots, as per plat above on a scale of 200 feet to the inch. Given under my band July 28, 1836. T. M. Neale, S. S. C." "Surveyed for M. L. Knapp and William Glenn the N. E. 14 of the N. W. 4 of sec. 18, town 19 N., range 4 west, commencing at the south-east corner of the town of Middletown, which I laid off into lots, as per plat above, connecting the same with the original town on a scale of 200 feet to the inch. Given under my hand July 28, 1836. T. M. Neale, S. S. C." "The old town platted above and numbered in lots from 1 to 64 not to be recorded with the above addition." "On this day James R. Smith, agent and attorney for John W. Casey, Ambrose C. Hankinson and H. S. Allen of Tazewell county, came before me, the undersigned, a justice of the peace within and for the county of Sangamon and state of Illinois, and acknowledged the within plat as numbered to block 49 to be according to their directions, and hereby voluntarily relinquish their claims to the streets, alleys and public "Note.-Monroe street is 40 feet wide. Grove street is 50 feet wide. Clinton and Madison streets are each 60 feet wide. Main street to Union street is 80 feet wide, from thence south is 50 feet wide. All of the cross-streets except Second, Third, Fourth, Union and Main cross-streets are 40 feet wide and run east and west, crossing the others at right angles. The lots are all 60 feet front with 120 feet depth, except those fronting the public square from the north and south, which are but 100 feet depth and 40 feet front." grounds mentioned on said plat to the public for public uses and benefits. James R. Smith, Agent for John W. Casey. Ambrose C. Hankinson. Hiram S. Allen. "Acknowledged and signed before me this 28th day of July, 1836. Thomas Moffett, J. P." "On this day Moses L. Knapp and William Glenn, Jr., of Sangamon county came before me, the undersigned, a justice of the peace within and for the county aforesaid and state of Illinois, and acknowledged the within plat of the town of Middletown in said county as numbered from block 50 inclusive to have been surveyed agreeably to their instructions, and voluntarily relinquished their title and interest to the streets, square and alleys contained therein for public uses and benefit. M. L. Knapp. Wm. Glenn, Jr. "Acknowledged and signed before me July 29, 1836. Thomas Moffett, J. P." "Recorded August 23, A. D. 1836.-Benjamin Talbott, R. S. C." Counsel for the appellee submits a map, showing the original town laid out in 1832, and the addition thereto laid out in 1836, as they appear together, showing that the plat of the original town, consisting of lots from 1 to 64, inclusive, lies within the space between Madison and Monroe streets on the east and west, and between blocks 29 and 30 of the addition on the north, and blocks 50 and 51 on the south. The plat in ques tion is as follows: King & Miller, for appellants. Blinn & Harris, for appellee. MAGRUDER, C. J. (after stating the facts). Substantially, the only question to be determined in this case is whether Union street, running from west to east, was intended by the original owners, who made the plat of the addition to Middletown, to cross the "Public Square," or whether Union street was intended to run from west to east as far as Clinton street on the west side of the square, and then to run from east to west as far as Madison street on the east side of the square. In other words, was Union street intended to cross the square, so as to divide it into two blocks, one on the north side of Union street, and one on the south side of Union street, or was it intended only to extend to the east and west sides of the public square, and not to run through the public square? It is con |