City of Aurora v. Pulfer

• Decision Date: 30 September 1870
• Citation: 1870 WL 6516,56 Ill. 270
• Parties: CITY OF AURORAv.PETER PULFER.
• Court: Illinois Supreme Court

56 Ill. 270

1870 WL 6516 (Ill.)

CITY OF AURORA

v.PETER PULFER.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.

This was an action brought by Pulfer against the city of Aurora, to recover for injuries to the plaintiff occasioned, as alleged, by the negligence of the defendant in permitting obstructions in a street of the city. A trial by jury resulted in a verdict for the plaintiff, upon which the court entered judgment, and the defendant appeals.

Mr. N. F. NICHOLS and Mr. EUGENE CANFIELD, for the appellant. Mr. C. J. METZNER, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It is very questionable, from the evidence, whether there was in fact any legal highway at the place where the appellee received the injuries complained of. It was within no addition to the city, and there is no pretense that a street had ever been opened at that point by the city authorities. If any legal highway did exist there, it was established by the town authorities, or by prescription, before the city was incorporated, in 1857. The existence of the highway was denied by Groch, who owned the land at the locality where the accident occurred, and it is very doubtful whether the city could have successfully maintained the highway and compelled the owner to keep it open.

The accident occurred in what was formerly called the “big woods,” a timbered tract of country, in the vicinity of the city At an earlier period a net work of roads crossed these lands in every conceivable direction. After the city was incorporated and these lands were included within its limits, they were gradually cleared up and improved. Fences were erected across these roads without any reference whatever to them. No one seemed to regard them as legal highways, or paid the least attention to them in making their improvements. Groch purchased the land where the accident occurred. It had for many years been used for the purposes of a brick-yard. Traveled roads, used for the convenience of the neighborhood, crossed it, and approached it from almost every direction wherever persons chose to travel. It is insisted by the appellee that the town authorities, previous to the incorporation of the city, had established a road across these premises, and if the highway was not legally established, that the public had certainly acquired the right of way across the same by prescription and user, and because the limits of the city had been extended so as to include this road, that it thereby became a street of the city, and that the city was bound to keep it open for the use of the public and free from dangerous obstructions.

Soon after Groch purchased the land, he fenced it up and placed gates on either side, at the points where it is alleged the road entered and left his premises. This is the obstruction complained of.

It can not be denied, in view of the evidence, that the right of the city to a street across the premises of Groch, is questionable, to say the least of it. The witnesses disagree as to the line of the survey alleged to have been made, and also as to the place of the traveled track. The owner of the land denied the existence of any highway across his premises, and fenced across the supposed street. Under these circumstances, was it the duty of the city to assert this questionable right and to enter upon a litigation, the result of which might be uncertain, or to be liable for the consequences that might ensue? It seems to us that this would be requiring too much of a municipal corporation. It is apparent that the public necessities require a highway at or near the place where it is alleged one now exists. But a municipal corporation can not be held liable for every accident that may happen where the public convenience may require that a street should be opened. Such corporations are invested with a discretionary power when, if at all, they proceed to open new streets in distant parts of the city, and they can not be held liable for simply failing to use this discretionary power. The City of Joliet v. Verley, 35 Ill. 58.

This doctrine was recognized in the case of The City of Chicago v. Martin, 49 Ill. 241. It was held, in that case, that a municipal corporation has a discretion as to when they will make improvements on unfrequented streets, and they are not liable for every accident that may occur for the want of such repairs.

The place where the injury occurred, of which the appellee complains, was distant from the main portion of the city. It seems that there were no houses nearer the place of the accident than twenty rods. It was not the duty of the city to move in the matter of opening this street unless its right to do so was reasonably certain. They were not bound to incur the...