« ForrigeFortsett »
unloading, and the storing of freight cars.' tury Dict.; City of St. Paul v. Chicago, MilSuch uses of a street, and the further right waukee & St. Paul Railway Co., 63 Minn. to construct a brick and stone depot there 330, 63 N. W. 267, 65 N. W. 649, 68 N. W. in and other structures, are inconsistent 458, 34 L. R. A. 184. “A landing or levee is with public enjoyment and a deprivation of a space adjacent to navigable water where the right of the public to the use of the vessels may approach and land to unload and street. Of course, a city has a right, with
receive passengers and freight, and where arin proper restrictions, to authorize a rail
ticles of freight may be left for loading on road company to lay tracks in a public the vessel, or after they have been unloaded street and operate cars thereon, but the
until they can be taken away." Farnham on right so to use the street is to be enjoyed in
Water and Water Rights, $ 145. A public connection with, and not to the exclusion of,
landing is dedicated to the public use and is the public. The power to grant the right
held in trust for the public, the same as a to a railroad company to use a street does
street. It cannot be devoted to any use innot carry with it the power to authorize
consistent with the use of the public. It the company to obstruct the street so as to
was held in City of St. Paul v. Chicago, Mildeprive the public and adjacent property
waukee & St. Paul Railway Co., supra, that owners of its use. Ligare v. City of Chicago,
to give a public levee, or any part of it, to 139 Ill. 46, 28 N. E. 934, 32 Am. St. Rep.
a railway company as a permanent site for 179."
its freight house, without reference to the We would be justified on this record in
traffic by way of transfer of passengers and affirming the decision of the Appellate
freight to and from vessels navigating the Court without consideration of the other
adjacent river or other navigable water,
would constitute a diversion of the proppoints urged by appellants. In their brief they substantially say:
erty to a use foreign to and inconsistent with We admit all this, but,
that for which the levee was dedicated. The as the case was not tried on the theory that
Supreme Court of California, in discussing a this property was a street, we ought not to
similar question in City of Napa v. Howland, be bound by our answer. They urge that
87 Cal. 84, 87, 25 Pac. 247, 248, say: “It is the bill of complaint claimed it was a part
said that the evidence does not support the of a public levee or boat landing, and that
finding of dedication as a public levee and much of the evidence tended to uphold this
for public street purposes,' because it shows claim. The record does disclose that many
a dedication, if any, for a public landing. It witnesses on the trial of the case called the
matters but little what name is given to the land a levee or public landing, and that
place, so long as the fact appears that it was counsel on both sides, in their examination
dedicated for a public use. 'A landing is a of witnesses, did the same thing. The or
bank or wharf to or from which persons dinance of the city of Peoria passed in
may go to or from some vessel in the conApril, 1855, stating "that a public ground
tiguous water.' The word 'levee,' as apin front of blocks 1, 2, 3 and 4, in the city
plied to portions of the public highways borof Peoria, and at the termination of every dering on navigable streams and sloughs in street and alley from the river and lake,
the interior cities and towns of this state, are hereby declared to be public landings has the same meaning as landing." See, also, and landing places in and for the city of
Oregon Railway Co. v. City of Portland, 9 Or. Peoria," indicates that at that time the city
231. A public landing is for the benefit of authorities thought that there was some the public generally, and there must be land between the river and the street which
means of access to it. This use is always might properly be classed as a public landing. subject to public regulation, and the right to The ordinances of October, 1869, and Sep use a landing does not include the right to tember, 1884, made a part of this record, make such use of it as will deprive others of tend to show the same thing. But, if Water a like use. Farnham on Water and Water street as originally laid out was bounded Rights, $ 145a. In Gardiner v. Tisdale, 2 Wis. by the Illinois river, under the law, it would 188, 60 Am. Dec. 407, it was said: “The extend to the center of the river, and the term 'public landing,' as used in this case, mere fact that the portion of the street at conveys to our mind the idea of a piece of the water's edge has been known and called, ground on the bank or margin of Rock river ever since the street was platted, a public provided for the open and common use of all landing or levee, would not necessarily pre persons in the debarkation of themselves or clude it being still held as a part of Water their goods, but not a place to be permanentstreet. If we consider Water street to be ly incumbered with piles of lumber or other only 110 feet wide and the balance of the merchandise or goods, any more than a publand to the river a public landing or levee, lic highway or street, because the benefits then is the ordinance in question a valid and and accommodation to the public which are binding one?
intended to be conveyed, would be greatly afThe word “levee” in this record means the fected, if not wholly destroyed, by any such same thing as a public landing place. That permanent incumbrance.” When the county word, as used in the West and South in this commissioners of Peoria county, in May, country, means a public landing place. Cen- 1834, platted the town of Peoria, they stated
(Exhibit B): "All the streets and alleys landing would constitute a misuser of a and the public square, as therein laid and ex street. If Water street be only 110 feet in hibited, we hereby grant for public purpose, width, as contended by appellants, then the to be and remain forever the property of said disputed premises must be a part of the pubtown according to said statute.” The statute lic landing, and the purposes for which they referred to provided that when a town was are being used, and would be used under the platted, the “land intended to be for streets, provisions of this ordinance, are not in any alleys, ways, commons or other public uses in way allied to the use of these premises as a any town or city or addition thereto shall be public landing, but, on the contrary, are soleheld in the corporate name thereof, in trust ly for the use of the railroad companies for to and for the uses and purposes set forth their freight and passenger traffic, not apand expressed or intended." Rev. Laws Ill. pertaining to the passenger or freight traffic 1833, p. 600. If the public authorities dedi on the Illinois river. cated this as a public landing, it was certain As we have heretofore stated, we would be ly never the intention that any part of it justified on this record in holding that appelshould be used exclusively for purposes lants were bound by their answer, and that which do not in any way pertain to river the premises in question are a part of Water navigation. Not only does the ordinance au street. As we have before shown, the evithorize appellants to build costly and per dence in this record tends very strongly to upmanent buildings upon part of the disputed hold these admissions. If the disputed prempremises, but they have already constructed ises are held to be a part of Water street, the railroad tracks therein so as to take up at ordinance is invalid because it is not based least 75 feet of this public landing that was upon the petition of the owners of land repnever before used for railroad purposes. The resenting more than one half of the frontevidence shows that during high water al age of the street, In either event, we conmost every year practically all of the public clude that the uses and purposes, as showii landing, except that occupied by the rail by this record, that are being made, or can road tracks, is submerged.
be made of a portion, at least, of the disputed Whether the disputed premises be held premises under the ordinance, whether said part of a public landing or part of a public premises be held to be a public street or a street matters little, if the ordinance in ques public landing, are of such a nature that the tion proposes to allow them to be used for ordinance grants to certain parties the exclupurposes foreign to that for which they were sive use of land which belongs to, and ought dedicated. There is no power in a munici to be open and free to the enjoyment of, the pality to sell or grant ground held in trust public, and that such uses therefore constitor the public and to exclude the public there tuted a purpresture, and the city council of from. The ordinance granted the authorties Peoria had no authority to pass the ordithe right to erect buildings on public property nance in question. It must therefore be held of such nature that their use must neces void and of no effect. sarily be largely private. On the record be We find no reversible error in the record. fore us we are inclined to hold that the use The judgment of the Appellate Court will acto which the premises in question are being, cordingly be affirmed. and will be, put under the ordinance in ques Judgment affirmed. tion is more foreign to, and more inconsistent with, the proper use of a public landing FARMER and VICKERS, JJ., having or levee than with the proper use of a public heard this case in the Appellate Court, took street. It is claimed that a portion of the no part in its decision here. disputed premises has been paved and is in a better sanitary condition than formerly ; that the streets which end at the public landing,
(222 Ill. 384) where they cross the railroad right of way,
LINGLE V. WEST CHICAGO PARK are better constructed, and therefore safer
COM'RS. for the public, than before. It can hardly be (Supreme Court of Illinois. Oct. 23, 1906.) seriously contended, with the great number 1. MUNICIPAL CORPORATIONS - SPECIAL Asof additional tracks that have been con
FIDAVIT. structed under this ordinance, occupied by
Under Hurd's Rev. St. 1905, c. 24, § 525, cars being switched back and forth over these requiring an affidavit of the superintendent of crossings, that people can approach this pub assessments or president of the board of local lic landing with as little danger as they could
improvement or some employé making and filing
an assessment roll that affiant has examined formerly. The new tracks laid have caused
the records for the names of owners of propadditional switching and more traffic over erty against which benefits were assessed, that the streets. Every additional track and the names of such owners are correctly shown,
etc., and section 547, providing that either the crossing at grade necessarily adds to the diffi
officer making the return of a special assessculty and danger of approach to this public ment for a local improvement, or some one actlanding. We are aware that there might be ing under his direction, shall make an examinaa proper use of a public street that might
tion of the collector's books, showing the pay
ments of general taxes during the last preceding not be a proper use for a public landing, and
year in which the taxes were paid on the that what might be a proper use of a public property assessed, and shall make an affidavit
to that effect, an affidavit on the return of a sets forth the steps taken for a public hearspecial assessment for a local improvement
ing; the park commissioners sitting and merely, and without condemnation proceedings in connection therewith, which conforms to sec
acting as a board of local improvements, etc. tion 547, is sufficient when made by one ap
The petition also sets forth the adoption of pointed by the officer making the return to make a resolution, providing that the improvement The required search, though he is not an em
should be divided into two sections-section ployé.
1 extending from the south curb line of West 2. APPEAL — OBJECTIONS IN TRIAL COURT SUFFICIENCY.
Nineteenth street to the northerly bank of Where counsel for an objector in a pro
the West Fork of the South Branch of the ceeding to confirm a special assessment concedes Chicago River, and section 2 extending from that he has not read the legal objections, but
the southerly bank of the West Fork of the thinks they are copied from the blanket form, and is unable to state any reason in support of
South Branch of the Chicago River to the the objections, the court on appeal will not re linois and Michigan canal; that an estimate view the overruling of the objections.
of the cost was made in writing by the en3. MUNICIPAL CORPORATIONS-CONFIRMATION
gineer, which estimate was made a part of OF SPECIAL ASSESSMENT-EVIDENCE. An ordinance originating a local improve
the record of the first resolution; that petiment consisting of the construction of lawn hy tioner, acting as a board of local improvedrants for sprinkling lawns and electric light ments, caused a notice of the time and place cables did not provide for connecting the water
of the public hearing to be mailed and postmains with the hydrants, nor for connecting the electric cables with any source of electric
ed, as provided by law; that petitioner, the current. Held, in proceedings to confirm a spe West Chicago Park Commissioners, prepared cial assessment, that the petitioner was prop an ordinance, signed by its members, acting erly allowed to show that these connections would be made, so that the property owner
as a board of local improvements, together would obtain the benefit contemplated.
with an estimate of the cost itemized; that 4. APPEAL-HARMLESS ERROR-INSTRUCTIONS.
said ordinance, with the recommendation Where, in proceedings to confirm a special and estimate of the cost, was referred to peassessment. the jury was not required to de titioner's committee on improvements on termine whether the assessment was lawfully levied, an instruction stating the issues was
February 11, 1902, and published, etc.; that not prejudicial because it stated that the assess on February 25, 1902, the committee reportment was levied by the authority of the board. ed said ordinance back, recommending that 5. MUNICIPAL CORPORATIONS LOCAL IM it be passed, and that on said last-named PROVEMENT-DETERMINATION BY MUNICIPAL
day it was passed, and the estimate made AUTHORITIES-FINALITY. The municipal authorities are the sole judge
by the engineer approved. The petition ales of the necessity for the construction of a leges that the improvement provided for in local improvement, and the jury in proceedings section 1 of the boulevard consists of resurto confirm a special assessment cannot determine a question of necessity.
facing the macadam roadway in the center 6. SAME-CONFIRMATION OF SPECIAL ASSESS
of the boulevard, and building roadway MENT-INSTRUCTIONS.
wings extended to the outside lines thereof An instruction in proceedings to confirm at all intersecting streets; constructing a a special assessment, that if the value of the
granite concrete combined curb and gutter property of the objector is increased for any usc for which it is adapted the property will be
along the outside lines of the roadway and benefited, correctly charges that the improve roadway wings; also sidewalks along the ment will benefit the property if it increases outside lines of the boulevard, and crossthe value thereof, and is not objectionable as
walks across the lawn spaces; grading and warranting a finding that the property would be benefited, though it would sustain damages in
filling lawn spaces on each side of the roadexcess of the benefits.
way; constructing storm water sewers and
catch-basins for surface drainage of the roadAppeal from Circuit Court, Cook County ;
ways; planting two rows of trees on each L. Honore, Judge.
side of the roadway; constructing lawn hyProceedings by the West Chicago Park
drants for sprinkling lawns; and constructCommissioners for the confirmation of a
ing and installing electric light conduits, special assessment. S. B. Lingle filed ob
cables, and switches, manholes, lamp-posts. jections. From a judgment of confirmation,
and lamps. The petition alleges that the the objector appeals. Affirmed.
improvement in section 2 consists of a limeThis is an appeal from a judgment ren stone macadam roadway, 50 feet wide from dered in the circuit court of Cook county curb to curb, from the West Fork of the on June 17, 1905, confirming a special assess South Branch of the Chicago River to Westment levied on land adjacent to Marshall
ern avenue, and 43 feet in width from curb boulevard, by authority of the West Chicago to curb from the drainage channel to the Park Commissioners, for the purpose of im: Illinois and Michigan canal, etc. The total proving said boulevard according to the estimated cost of the improvement in section scheme or plan of the commissioners, set 1, extending from West Nineteenth street forth in their ordinance. The park commis to the south branch of the Chicago River, is sioners filed their petition for the levy of the $89,865.72, and of the improvement in section special assessment for said improvement on 2, extending from the river to the Illinois April 4, 1902, and the proceedings were had and Michigan canal, the estimated cost is under the local improvement act of 1897 and fixed at $56,907.50, making a total estimated the acts amendatory thereof. The petition cost of the entire improvement of $148,773.22.
On April 11, 1902, John P. Garner was ap Dwight D. Root, for appellant. Benjapointed to make the assessment, having been min F. Richolson and Delavan B. Cole, for selected and designated by the president of appellee. the West Chicago Park Commissioners for that purpose, and he made and prepared an SCOTT, C. J. (after stating the facts). assessment roll, and reported and returned Appellant contends that each of his motions the same into court on March 19, 1903, and to dismiss the proceedings should have been caused notices to be posted and mailed and sustained, and that, as they went to the jufiled affidavits thereof on July 20, 1903, on
risdiction of the court to entertain the prowhich date an order was entered that ob ceeding at all, his rights in reference therejections should be filed within three days.
to were saved by his motion in arrest of On August 3, 1903, a default was taken and judgment. In the statement preceding his entered of record as to all property not ob
brief he points out 53 separate and specific jected for. Appellant, Lingle, filed 28 ob
errors which he says were committed by jections to the confirmation of the assess
the court below, and in support of this forment against his property. On December 28,
midable array of alleged errors he presents 1904, the cause came on for hearing upon
a brief of 5 pages, an argument of 5 pages legal objections. On January 18, 1905, an
and a reply of 5 pages, and the court having order was .entered permitting an amendment
heretofore determined this cause adversely of the assessment roll for the purpose of cor
to appellant, and having thereafter granted recting a description as to certain property
a rehearing, his brief and argument and located in section 2 of the improvement. On
reply brief are now supplemented by a peJanuary 23, 1905, appellant's counsel filed
tition for rehearing of 8 pages. His brief
and argument and supplemental documents a new set of objections, and on January 26, 1905, a motion to dismiss the petition. On
are so meager that it is exceedingly difficult
to understand the position of appellant with February 4, 1905, an order was entered over
reference to the various alleged errors upon ruling all motions to cancel and annul the
which he insists. As we understand the assessment, and all objections, except the
jurisdictional question, however, it is this: objection that the assessment was not equi
Section 525, c. 24, Hurd's Revised Statutes tably and proportionately placed between the
of 1905, provides that, where property is public and the property, and sustaining said
taken or damaged under the local improyelast-mentioned objection, and ordering that
ment act, the superintendent of special asthe entire assessment be referred back to
sessments or president of the board of local the commissioner who prepared the same,
improvements shall file with the report of with directions that the assessment be re
the commissioners an affidavit, made by himcast in such manner that 25 per cent. of the
self or some employé of his office, showing total costs of the improvement be assessed as
that the affiant has carefully examined the public benefits, and the remainder thereof
records in the recorder's office in the said against the property to be benefited, etc.
county for the names of the owners of recAfter the coming in of the revised assess
ord of the property which is to be taken or ment roll after recasting of the assessment, damaged for the improvement. A search in and on April 19, 1905, an order was entered
this case of the books of the collector of that all of the testimony, proceedings, argu
Cook county to ascertain the persons who ments, objections, and motions theretofore
last paid taxes on the respective parcels of offered and urged on behalf of the objectors real estate assessed, and the residences of to the original assessment roll should be
such taxpayers, was made by Clair D. Valconsidered as reoffered to the revised assess
lette, who made affidavit thereto, from ment roll, and that all of the decisions, rul which it appears that at the request and ings, and orders of the court upon the same, under the direction of the officer appointed and all exceptions to said decisions, rulings, to spread the assessment he made the search and orders, stand and be made to apply to in question; and appellant's position is that, the revised assessment roll. Theretofore, on as it does not appear from Vallette's affidaApril 8, 1905, counsel for appellant had filed vit that he was an employé in the office of another motion to dismiss. The motions to the superintendent of special assessments or dismiss the petition filed by appellant's coun president of the board of local improvesel were overruled. All legal objections were ments, the affidavit is insufficient. There overruled on April 19, 1905, and thereafter, was no condemnation proceeding in conon the same day, the cause came to trial be nection with this special assessment profore the court and jury on the question of ceeding, and the affidavit in question was benefits, and the jury rendered a verdict made, not under the provisions of section sustaining the roll as presented, so far as 525, supra, but under the provisions of secappellant was concerned, and, after motions tion 547 of chapter 24, supra, and is in for new trial and in arrest of judgment had compliance with the provisions of that secbeen overruled, judgment was entered on tion, which require that an affidavit be made the verdict. The present appeal is prosecut by the officer making the return, or some ed from such judgment.
one acting under his direction, stating that
the affiant has made an examination of the anyway? Mr. Root: Only before, I think, collector's books showing the payment of a jury. The Court: Then I will overrule taxes during the last preceding year, to as it, and when you want to renew it before certain the person paying the taxes on the the jury, I will take up the question then. property assessed. But this section does No. 3 is overruled. “The proposed improvenot require the affiant to be an "employé in ment is for the general or public benefit.' the office,” as does section 525, supra. No Are you entitled to make such an objection lack of jurisdiction appears from inspection as that? Mr. Root: I think that goes to of this affidavit.
benefits. The Court: I will overrule No. 4. Other jurisdictional objections are point Now, No. 5: "The ordinance authorizing ed out in the statement and referred to in said improvement does not specify the nathe brief, but they are not discussed in the ture, character, locality, and description of argument, and they are so extremely tech the proposed improvement.' Mr. Root: nical and so entirely devoid of merit that Well, it don't describe it fully. It omits we deem it unnecessary to discuss them. some things and describes other things.
Upon the consideration of the legal ob The Court: Which things are omitted from jections filed below, the court undertook it and misdescribed ? Mr. Root: If your to ascertain what objections the appellant honor will read that again, I will try and was insisting upon, when the following col catch it. The Court (reading]: 'The ordiloquy occurred between court and counsel : nance authorizing said improvement does The Court: “Just let me take your objec not specify the nature, character, locality, tions for a moment please. [Counsel here and description of the proposed improvehanded written 'objections filed on behalf of ment.' Mr. Root:
Mr. Root: May it please the court, Lingle property to court.] Mr. Root: II think those are copied right from the have have not read them myself. They stereotype blanket form-simply type writwere filed by another attorney. The Court: ten-I think they are the same, verbatim; Your first objection is that the ordinance I don't know. The Court: To shorten this for said proposed improvement is incom matter, have you offered all the evidence or plete, informal, and otherwise invalid.' Do argument that you have to offer at this time you desire to urge that objection? Mr. upon all the objections that you filed? Mr. Root: May it please the court, I would not Root: I have more evidence to offer as to like to be catechised about those things. the benefit to the omitted property and as The Court: Well? Mr. Root: I have not to that which we are speaking about. The read them. The Court: You have been ap Court: Well, as to that, I gave you leave proaching this occasion for a long time, at a later time, if you have any such to offer, and now you are up against the point. If to make a showing, and make application you have any objections to this assessment for leave to present it." The court then to make, make them now. I am asking overruled all the legal objections. whether you desire to argue that the or In Fisher v. City of Chicago, 213 Ill. 268, dinance is incomplete, and so forth. There page 270, 72 N. E. 680, page 681, we said: is no later time when this case is going "An appeal is allowed for the purpose of reto be reopened and retried. Mr. Root: viewing the decision of the county court upWell, if it please the court, I have just on the objections filed, and if that court come into this case. While these objections has jurisdiction of the subject matter, the may have been filed some time ago, I, my party appearing there must present his obself, was only spoken to about this case a jections to that court. Objections must be day or so ago, and I have not had time to made in such manner as to show the point look them over. The Court:
The Court: You are not on which a decision is asked, and to enable prepared at this moment, then, to back up the opposite party to obviate the objection, this objection?. Mr. Root: I am only pre if it can be done. The county court is not pared as far as I have exhibited my hands charged with the duty of searching for obto the court so far. The Court: The sec jections which are not pointed out, and an ond, "The West Park Commissioners have objection not made in that court must be no authority to pass said ordinance.' Have regarded as waived, and cannot be made for you anything to offer on that-argument or the first time on appeal to tbis court.” evidence? Mr. Root: No. The Court: I We think where counsel for an objector will just overrule these as I go along. One in a special assessment proceeding comes and two objections overruled. 'There is into court, and concedes that he has not shown no necessity for making said pro read the legal objections filed, but thinks posed improvement.' Anything to offer on they “are copied right from the stereotype that? Mr. Root: I don't think that would blanket form," and is unable to state any properly be tried at this time, unless your reason whatever in support of the objections, honor desires to hear it. If your honor such objections are properly overruled, for wishes to hear evidence on that now, I think the reason that they are not made in such I am prepared to offer evidence on that a manner as to show to the court the points proposition. The Court: Well, is it an ob upon which the decision is sought. Where jection that you have any right to make, such objections, under such circumstances