Carter v. the City of Chicago

• Decision Date: 30 September 1870
• Parties: ASHER CARTERv.THE CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

57 Ill. 283

1870 WL 6627 (Ill.)

ASHER CARTER

v.THE CITY OF CHICAGO et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Chicago.

Mr. EDWARD S. ISHAM, for the plaintiff in error.

Mr. I. N. STILES and Mr. M. F. TULEY, for the defendants in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This is a writ of error to the Superior Court of Chicago. The record shows, that plaintiff in error exhibited his bill in behalf of himself and all others similarly situated, on the chancery side of that court, to enjoin the city of Chicago, and the members of the Board of Public Works, from carrying into effect a certain ordinance, and from doing certain proposed and threatened acts with reference to a portion of Franklin street, in said city. Defendants filed a general demurrer to the bill, which the court sustained. The question, therefore, is, whether upon the face of that bill the plaintiff was entitled to the relief sought.

The substantial elements of the case presented by the bill are, that the original proprietors of a fractional part of the N. E. qr. of sec. 9, town 39, in which the west part of Franklin street is located, laid the same out into blocks, lots, streets and alleys, making a map thereof, pursuant to statute, and recording it as Butler, Wright & Webster's addition to Chicago. Among the streets so dedicated to public use, was the west side of Franklin street, as the same extends from Kinzie street to Chicago avenue; that by said map, there was a space between the west line of Franklin street and the east end of the lots adjoining, twelve feet wide. The proprietors, after describing this space to which the fee was reserved to themselves, declare upon the map as follows: “The said reserved twelve feet being hereby reserved, in front of each lot fronting on Franklin street, for the purpose of court yards only. Such court yards may be fenced in and ornamented with trees, &c., but never to be built upon.”

That plaintiff derived his title to his premises from Wright, one of said proprietors; the deed describes them with reference to this map, and are situated upon the southwest corner of Franklin and Erie streets, extending along the west side of Franklin one hundred feet. That himself, as well as other owners of lots upon the same side of the street, had enclosed the court yards in front, and appropriated them according to the terms and purposes of the said reservation. That the width of Franklin street and to which the city has the fee, and the right to use it, for roadway and sidewalks, is fifty-six feet and no more, and which is exclusive of the court yards.

The bill alleges, that the dedication of the site of Franklin street, as such, was for the use and benefit of the lot owners thereon; that through a wanton, unnecessary and oppressive abuse of power on the part of the city, and in pursuance of a fraudulent and oppressive scheme and design on the part of the city and the Board of Public Works, to get possession and to deprive plaintiff and others owning property along said west side of Franklin street, of the said space of twelve feet, reserved for their use and benefit as aforesaid, and to compel them to relinquish to the city, without compensation, their right to and beneficial interest in said ground so reserved, and donate the same for use as sidewalks, or be deprived of any sidewalk along their property, and to subject them to annoyance and inconvenience. Their sidewalks upon that side of the street have been directed to be converted into a roadway, by an ordinance of the common council, passed August 19, 1869, whereby it was ordered that the width of the roadway of North Franklin street, from Kinzie street to Chicago avenue, be and the same thereby was established at forty feet, making the east line thereof parallel with and fourteen feet west of the east line of said street, and repealing all other ordinances in conflict therewith.

It is alleged that the Board of Public Works, in pursuance of a fraudulent and oppressive scheme and design as aforesaid, are proceeding, under said ordinance, to construct curb walls along said Franklin street, in front of plaintiff's premises, and to establish a roadway forty feet wide, making the east line thereof fourteen feet west of the east line of said street, and are establishing the west line...