Sears v. City of Chicago

Decision Date09 December 1910
Citation93 N.E. 158,247 Ill. 204
PartiesSEARS v. CITY OF CHICAGO.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cook County; Julian W. Mack, Judge.

Bill by Herbert M. Sears, trustee under the will of Caroline B. Sears, against the City of Chicago. There was a decree dismissing the bill in part, and in part for complainant, and complainant appeals; the city assigning cross-errors. Reversed and remanded, with directions.Wilson, Moore & McIlvaine, for appellant.

Edward J. Brundage, Corp. Counsel, and William D. Barge, for appellee.

VICKERS, C. J.

Herbert M. Sears, as trustee under the will of Caroline B. Sears, claiming to be the owner of lots 1, 6, and 7, in block 138, of School Section addition to the city of Chicago, filed a bill in equity in the circuit court of Cook county against the city of Chicago to enjoin said city from enforcing an ordinance, passed February 5, 1906, prescribing the terms and conditions under which abutting property owners might use the subsidewalk space adjacent to their lots for private purposes in connection with the building located on such lots. This case is one of a number brought by different property owners in order to test the validity of the ordinance under the varying facts connected with the different pieces of property involved. So far as the same is necessary to a proper understanding of the questions involved in the present case, the ordinance challenged by the bill is as follows:

Section 1. No person shall use any space underneath the surface of any street or other public ground in this city, or construct or maintain any structure thereunder, without first obtaining a permit so to do from the commissioner of public works of the city.’

Sec. 3. Every applicant for such a permit shall file with his application his bond in the penal sum of $10,000, with surety or sureties to be approved by said commissioner of public works; and such bond shall be conditioned that the person to whom such bond shall be issued, his heirs, successors or assigns, will save and keep the city free and harmless from any and all loss or damage, or claim of damage, arising from or out of the use of the space or structure therein mentioned, and for the maintenance of the street, alley or other public way, or the sidewalk over such space, as the case may be, * * * and for the prompt and full payment of the compensation hereunder required during his ownership of said property, so long as said permit shall be outstanding.

Sec. 4. When the space so used does not extend more than fifteen feet below the surface of the street, alley, way or ground over the same, the person, firm or corporation making, using or maintaining any such structure or using space underneath the surface of any street, alley, public way or public ground, shall render to the city as the annual compensation for such use, whenever the adjoining property is subject to general taxation, a sum equal to four per cent. of the amount determined by multiplying the number of square feet of surface over the space so used by a sum equal to one-tenth of the land value of the average square foot in the lot abutting on such space, as fixed by the last assessment thereof for general taxation by the state or county authorities: * * * Provided, however, that in every case the annual compensation shall be at least $10.’

Sec. 6. If any person now using any space underneath any street, public alley, sidewalk or public way shall fail to take out a permit for such use, as herein provided, within ninety days after this ordinance is in effect, then the commissioner of public works shall proceed to remove every such structure and close the space therein.’

Sec. 11. Nothing in this ordinance contained shall be held or construed to apply to any person now using any such space underneath the surface of any street or other public ground according to the terms of any ordinance heretofore passed which requires the payment of compensation for such use if such person is making such payments, nor so long as such payments are made according to the terms of such ordinance.’

The property involved in this case is located on the southeast corner of Dearborn and Van Buren streets and is bounded on the east by Plymouth Court. Van Buren street runs east and west. Dearborn street runs north and south, and intersects Van Buren at the northwest corner of lot 1 involved in this case. Upon these lots is located an office building known as the ‘Old Colony Building,’ which is 17 stories high, and is 148 1/2 feet on Dearborn street and 68 feet on Van Buren. The building has six elevators and is occupied by about 150 tenants. The space under the sidewalk on Van Buren street is used for the elevator machinery, while that under Dearborn street and Plymouth Court is used for fuel and ashes, and as a means of bringing fuel into the building and conveying ashes and other refuse out of the same.

The contentions of the parties may be briefly stated, as follows: The complainant below contends that he is the owner of the fee to the center of the streets and to the center of Plymouth Court, subject to the easement in the public, and that as such owner he has the right to use the subsidewalk space for private purposes in connection with his building, and that the ordinance imposing upon him a tax for the use of such space is illegal and void. On behalf of the city it is contended that it owns the fee in the streets adjacent to complainant's property and in Plymouth Court; and in the second place, it is contended by the city that, whether it has a fee or only an easement in the said streets, it has the power, under the statute, to pass the ordinance in question.

The circuit court sustained the bill, and granted an injunction against the enforcement of the ordinance in so far as it affected the Dearborn street side of the complainant's property, but held, as to Van Buren street and Plymouth Court, the city owned the fee, and that the ordinance was a valid exercise of its power of control over highways. The complainant below has appealed from the decree dismissing his bill as to Van Buren street and Plymouth Court, and the city has assigned cross-errors, calling in question that portion of the decree below which granted the relief prayed for as to Dearborn street. Since the rights of the city in each of these streets and in Plymouth Court were acquired at different times and in different ways, it will be necessary to briefly state the manner in which the city's rights were acquired in each place.

Appellant's premises were originally a part of section 16, township 39 N., range 14 E. of the third principal meridian, and were granted by the United States to the state of Illinois, for the use of the inhabitants of the township in which the same were situated, for the use of schools. The proposed grant was accepted by the state of Illinois by ordinance duly passed August 26, 1818. Said section 16 was platted by a school commissioner appointed pursuant to an act of the Legislature of Illinois adopted January 22, 1829 (Rev. Code Laws 1829, p. 150), which plat was recorded in the recorder's office of Cook county some time between 1833 and 1836. That portion of the city of Chicago which was originally section 16 is known as School Section addition to Chicago. The school commissioner's plat of section 16 divided said section into 142 blocks, leaving open spaces, presumably for streets; but there is nothing on the plat to indicate what the spaces are intended for, except figures indicating the width, which in some instances is 40 feet, and in others 66 feet. Block 138 in the School Section addition is 396 feet north and south by 387 feet and 9 inches east and west. North of block 138 is an open space 66 feet wide, running east and west the entire length of said addition. East of said block there is also an open space indicated by the plat; but there is nothing to show its width, or the purpose for which it was left. Truman G. Wright, having acquired title to block 138, made a subdivision thereof, dividing the same into 24 lots, in 1836, a plat of which was filed for record in Cook county February 16, 1836. Lots 1, 6, and 7 in block 138, as shown by Wright's subdivision, are the premises belonging to the appellant. By Wright's subdivision of block 138 a street 70 feet wide is designated on the plat east of the property in question, and one 66 feet wide north of said premises. The 70-foot space on the east is referred to in this record as Plymouth Court, and the 66-foot street on the north is known as Van Buren street, and occupies the same place that was left open north of block 138 by the school commissioner's plat. Dearborn street, opposite the premises of appellant on the west, was opened by the city by condemnation proceedings in July, [247 Ill. 215]1887, the eastern half of which was so located on appellant's lots.

So far as the right of the city in Plymouth Court is concerned, it rests entirely upon the plat made by Truman G. Wright; but as to Van Buren street the city's right may rest upon either the plat made by the school commissioner or that made subsequently by Wright. If the plat of the school commissioner for any reason failed to vest the fee in Van Buren street in the city, the fee passed by the conveyance of block...

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