City of Waukegan v. Burnett

• Citation: 84 N.E. 1061,234 Ill. 460
• Parties: CITY OF WAUKEGAN v. BURNETT et al.
• Decision Date: 03 June 1908
• Court: Supreme Court of Illinois

234 Ill. 460

84 N.E. 1061

CITY OF WAUKEGAN

v.BURNETT et al.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 3, 1908.

Appeal from Lake County Court; D. L. Jones, Judge.

Action by the city of Waukegan against George B. Burnett and others. From a judgment confirming an assessment, defendants appeal. Reversed and remanded.

Charles Whitney, Elam L. Clarke, S. H. Kennedy, and Smoot & Eyer, for appellants.

Cooke, Pope & Pope, for appellee.

HAND, C. J.

This is an appeal by the appellants from a judgment of the county court of Lake county confirming a special assessment levied by the city of Waukegan under the local improvement act (Hurd's Rev. St. 1905, c. 24, p. 404) to enable it to acquire, by condemnation, the right to construct, maintain, and operate a connected system of sewers in certain strips of land situated in said city. The ordinance upon which the proceeding is based provides for acquiring, by condemnation, the right to construct, maintain, and operate a connected system of sewers along certain lines across private property in sais city, but makes no provision for the construction of any sewers along such lines or over said lands.

A number of questions are discussed in the briefs, but from the view we take of the proceeding it will only be necessary to consider one, which is, has the appellee the power to assess the appellants' property to enable it to acquire the right to construct a system of sewers in private property in said city, by condemnation, under the local improvement act, without providing by ordinance for the construction of a system of sewers in the strips of land sought to be thus acquired?

It is apparent that the property of appellants would not be benefited by the city acquiring the right to lay sewers in the strips of land sought to be acquired until the city had provided, by a valid ordinance, for the laying of sewers in the strips of land sought to be acquired. This court has repeatedly held that, where property cannot be benefited except in case of subsequent work, for which no provision is made, the property cannot be specially assessed. Hutt v. City of Chicago, 132 Ill. 352, 23 N. E. 1010;Edwards v. City of Chicago, 140 Ill. 440, 30 N. E. 350;Washington Ice Co. v. City of Chicago, 147 Ill. 327, 35 N. E. 378,37 Am. St. Rep. 222; Title Guarantee & Trust Co. v. City of Chicago, 162 Ill. 505, 44 N. E. 832. In Hutt v. City of Chicago, supra, the city sought to levy an assessment to pay for opening a street...