Barrows v. City of Sycamore.1

• Decision Date: 19 June 1894
• Citation: 37 N.E. 1096,150 Ill. 588
• Parties: BARROWS v. CITY OF SYCAMORE.
• Court: Illinois Supreme Court

150 Ill. 588

37 N.E. 1096

BARROWS

v.CITY OF SYCAMORE.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, second district.

Action on the case by Sarah J. Barrows against the city of Sycamore. Defendant obtained judgment, which was affirmed by the appellate court. 49 Ill. App. 590. Plaintiff appeals. Reversed.

Jones & Rogers, for appellant.

Carnes & Dunton, for appellee.

WILKIN, J.

This is an action on the case by appellant against appellee, in the circuit court of Dekalb county, to recover damages for an alleged injury to real property. The circuit court sustained a demurrer to the declaration, and rendered judgment against the plaintiff for costs, from which she appealed to the appellate court of the second district, and from a judgment of affirmance in that court prosecuted this appeal.

The cause of action set up in the declaration is that plaintiff is the owner of a certain lot in the city of Sycamore, with a two-story building on the southwest corner thereof, fronting south and west on State and Main streets, which she used and occupied as a residence and hotel; that the city ‘injuriously, unjustly, and wrongfully constructed, or caused to be constructed and erected, at or near the center of the intersection of said streets, and at a distance of about 56 1/2 feet from said hotel building, a standpipe, or water tower,’ 15 feet in diameter, and about 135 feet high, having a capacity of 179,000 gallons, made of steel or iron plates, 5 feet wide, riveted together, the lower course being nine-sixteenths of an inch thick, and those above diminishing to the upper course, which was three-sixteenths of an inch. This structure is alleged to have caused an injury to plaintiff's building, which is set forth in each of the four counts of the declaration as follows: First count: ‘Which standpipe, by reason of the fact that there is a constant apprehension that it may fall over upon said hotel building, and, by its great weight, injure, crush, or destroy the same, or that it might blow over upon said property, or burst and flood the same, greatly depreciates in value the premises for residence, hotel, and business purposes, and especially greatly depreciates in price the market value of said premises.’ Second count: ‘Which standpipe is liable to fall or blow over upon said premises, and, by its great weight, injure, crush, or destroy said building, and is liable to burst, and flood said premises, and thus injure the same, or destroy the said hotel building, and thereby greatly depreciates in value said premises,’ etc. Third count: ‘Which standpipe is of a dangerous character, and is liable to fall or blow over upon said hotel building, and, by its great weight, injure, crush, or destroy the same, and is liable to burst and flood said premises, and thus injure the same, or destroy the said hotel building; and the standpipe is a constant menace to plaintiff's property, and the liability of said structure and structures of like character to fall or blow over or burst has thereby greatly depreciated in value said premises for residence, hotel, or other business purposes, and especially greatly depreciates in price the market value of said premises.’ Fourth count: ‘And, by reason of defendant's constructing, or causing to be constructed, said standpipe, as above stated, in the public streets of said city, and so near to plaintiff's hotel building, said standpipe obstructs the light to said plaintiff's hotel building, and particularly to the parlor and sitting room in the southwest corner or said hotel building, and obstructs the view from said hotel building; and said standpipe, being of so great height, and in front of and near said plaintiff's said premises, casts a shadow upon said hotel building, and makes the appearance of said premises unsightly, and otherwise injuriously affects said premises, and thus plaintiff's said premises are less convenient and comfortable for residence and hotel purposes; and by reason of the wrongful acts and doings of the defendant as aforesaid, and the injuries done to plaintiff's property as aforesaid, the market value of plaintiff's said premises is thereby greatly decreased.’ Each of these counts concludes with the averment ‘that, by means of the premises, the said defendant has greatly injured and damaged the said property of plaintiff, within the meaning of the constitution and laws of the state of Illinois; yet the said defendant has never paid, nor offered to pay, to the said plaintiff, any of the damage so injuriously and unjustly caused to the plaintiff's said property, nor has any proceeding been instituted by the defendant for the purpose of having just compensation therefor ascertained; and the plaintiff avers that, by reason of the premises above set forth, the plaintiff's said property has been greatly damaged and depreciated in value, to the damage of said plaintiff of the sum of three thousand ($3,000), and therefore she brings her suit,’ etc. It thus appears that the declaration proceeds both upon the ground that placing the standpipe in the street was wrongful, and, even if authorized by law, plaintiff's property could not, under the constitution, be damaged thereby without just compensation, which had not been ascertained. The demurrer was, in effect, general to each count, viz. it made no objection to the declaration on account of duplicity or the mere form of pleading, and therefore the only question presented for our decision is, does either of the counts state, in substance, a good cause of action?

It is insisted on behalf of the city that, being the owner of the fee in the streets, and having the absolute control over them, it had a right to build the standpipe in them, and that, if injury resulted thereby to plaintiff's property, it is damnum absque injuria. The soundness of this position depends upon whether the placing of a structure like that described in the declaration in the streets of a city is consistent with the objects for which streets are established, and held by municipal authorities in trust for the public use. The general rule, long recognized by this court, is that, having the fee...