Washington Ice Co. v. City of Chicago

• Decision Date: 26 October 1893
• Citation: 35 N.E. 378,147 Ill. 327
• Parties: WASHINGTON ICE CO. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

147 Ill. 327

35 N.E. 378

WASHINGTON ICE CO.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Action by the city of Chicago against the Washington Ice Company to condemn land for a street. There was judgment of condemnation. Defendant appeals. Reversed.

Ullmann & Hacker, for appellant.

Charles C. Gilbert, Henry S. Waldron, and John S. Miller, Corp. Counsel, for appellee.

SHOPE, J.

The city of Chicago passed an ordinance for the opening of 100th street from Commercial avenue to the east line of section 7, township 37, range 15. Section 1 provided that 100th street be and is ordered opened between the points named, by condemning therefor a strip of land 66 feet wide, parcel of land particularly described. Section 2 provided: ‘Said improvement shall be made, and the cost thereof paid for by special assessment to be levied upon the property to be benefited thereby, to the amount the same may be legally assessed therefor, and the remainder of such cost to be paid by general taxation,’ in accordance with article 9 of the cities and villages act. Section 3 directs the corporation counsel to file a petition, etc., in the name of the city of Chicago, praying that just compensation to be made for private property to be taken or damaged for said improvement be ascertained, etc., and to file supplemental petition in accordance with the provisions of section 53 of said article 9. A petition was accordingly filed, seeking to have the just compensation to be paid to appellant and others ascertained by a jury, as required by law. The proposed extension of the street involved the taking of a strip of land 66 feet wide and 1,980 feet long, comprising 2.92 acres, belonging to appellant, and leaving a strip 88.7 feet south, and the balance of its 64-acre tract north, of the proposed street. It appears that the tract belonging to appellant was originally a swamp lying on the west or northwesterlyshore of the Calumet river. The tract was purchased 14 or 15 years ago, and an embankment built upon the north, east, and south sides of the tract, to prevent overflow from the Calumet river, and to make a pond into which water could be pumped for the purpose of freezing and cutting ice. The west edge of the pond was protected by a natural ridge. The proposed improvement passed through this pond a distance of 1,830 feet, and thence over appellant's land, 150 feet, to the river; then crossed the river, and extended some distance beyond to the east line of said section 7. At the time of the trial, the water in the pond was 5 or 6 feet deep, and, as already seen, a strip 88.7 feet wide and 1,830 feet long lay south of the proposed street. Appellant filed a cross petition, claiming damages, by reason of the improvement, to its land not taken. A trial by jury resulted in finding that compensation, in the amount of $13,500, should be made for land taken, and nothing for damages to land not taken. Motion for new trial was overruled, and judgment entered on the verdict.

Numerous errors are assigned, but, in the view we take, a consideration of one of them, only, will be necessary. The constitution provides that private property shall not be taken or damaged for public use without just compensation. For land taken, no benefits to land not taken can be set off. But payment of the compensation for damages accruing to the land not taken may be made in benefits to the property not common to the other property affected; that is, the special benefits accruing to the particular property may be set off against the damages done to land not taken by the improvement. So that, if the special benefits equal or exceed the damages, the owner can recover nothing as damages to property not taken; if less, he will recover the difference, only. The constitutional provision is equally mandatory that property shall not be damaged for public use without just compensation, as it is that it shall not be taken for such use without just compensation. So that, in some one of the modes prescribed, compensation must be made for damages to his property arising from the improvement. These principles are so fundamental and familiar that the citation of cases is unnecessary.

The ordinance in this case provides that the improvement shall be paid for by special assessment to be levied upon the property benefited thereby, to the amount the same may be lawfully assessed; the remainder to be paid by general taxation. It is not necessary, if important, that we shall pause to discuss the sufficiency of this ordinance to authorize the levy of a special assessment. It is obvious that no special assessment could be levied under it. The nature or character of the improvement (section 19, art. 9, c. 24, Rev. St.) is nowhere given. Whether the street is to be filled to some or any grade is not provided, or, whether through the pond, and thence to the river, the roadbed is to be raised above the level of the water by embankment or stone walls or trestlework, or whether the embankment across the 66 feet condemned will be removed, and the roadway made upon the natural level of the soil, or otherwise, is left wholly undetermined. No basis or data are given from which an estimate of the cost could be made, in accordance with the statute, to be apportioned among and upon the property fenefited. Levy v. City of...