City of Bloomington v. Pollock

• Decision Date: 11 May 1892
• Citation: 31 N.E. 146,141 Ill. 346
• Parties: CITY OF BLOOMINGTON v. POLLOCK.
• Court: Illinois Supreme Court

141 Ill. 346

31 N.E. 146

CITY OF BLOOMINGTON

v.POLLOCK.¹

Supreme Court of Illinois.

May 11, 1892.

Appeal from appellate court, third district.

Action on the case by John E. Pollock against the city of Bloomington to recover damages for injuries to plaintiff's property caused by the defendant in raising the surface of the street.Plaintiff obtained judgment, which was affirmed by the appellate court.Defendant appeals.Affirmed.

Sain Welty, for appellant.

James S. Ewing and A. E. De Mange, for appellee.

BAKER, J.

Appellee brought case against the appellant city, and recovered a judgment for damages, which was affirmed in the appellate court.The substance of his claim is that the city raised the level of Washington street in front of premises owned and occupied by him as a residence, and paved it with brick, and thereby overflowed his premises with water, and deposited large quantities of clay and soil upon the same, destroying his grass and lawn, etc., and left his lot and house so much below the level of said street that it became inconvenient and unsafe to enter the premises from the street.It seems from the record that the house in question was built in 1858; that the ordinance fixing the grade of the street was adopted in 1860; that appellee purchased the house and lot in 1878; and that the improvements complained of were made in 1889.

One contention of appellant appears to be that, although under the constitutional provision of 1870, (article 2, § 13,) that ‘private property shall not be taken or damaged for public use without just compensation,’ there may be a right to recover damages occasioned by a change in a grade theretofore officially established, yet that for the original establishment of a grade line, and the bringing of the natural surface of the street for street purposes to such line, there is no legal right in the lot owner to compensation for damage occasioned thereby.This is not an open question in this court.City of Elgin v. Eaton, 83 Ill. 535, was a case on all fours with this, with the single exception that there the ordinance fixing the grade was passed subsequent to the time that the constitution of 1870 went in force, while here the ordinance was passed prior to such time.In the report of the Elgin Case the facts do not very clearly appear, but they were that the ordinance determining the grade of the streets there involved was the original establishment of a grade for such streets, and that it was adopted on September 12, 1871.We there said: ‘It is first urged that a municipal corporation is not liable for damages growing out of grading their streets.This was, no doubt, true, before the adoption of our present constitution.* * * Now, this was private property, and the improvement was being made for public use, and, if the property was damaged thereby, appellee is entitled to just compensation for such damage.If injury was sustained, it was for the public use.* * * If a person is damaged in making such improvement, he may recover.’By its charter the city of Bloomington is given power to alter, grade, pave, or otherwise improve its streets.Similar powers are given to probably all the cities in the state.Such powers are continuing powers, and are not exhausted by their first exercise; and the ordinance of 1860 establishing the grade of Washington street was not in the nature of a compact; and other like ordinances, adopted under like powers, are not in the nature of compacts.2 Dill. Mun. Corp. (4th Ed.) §§ 685, 686;Goszler v. Georgetown, 6 Wheat. 593.It would seem, then, in respect to the legal liability of a municipal corporation for damage done in grading its streets, that it is wholly immaterial, from a legal standpoint, whether such grading is done under an ordinance establishing a grade in the first instance, or under an ordinance abandoning the grade; for, even if there be a prior ordinance, it does not have the elements of a contract, does not impose a legal duty to level or bring the streets to the grade fixed by it, and does not prevent the municipality from placing its streets at any grade that it may thereafter ordain.In other words, either with or without a prior ordinance, the city is free to establish by ordinance any grade it sees fit, subject only to the qualification that such grade is not so wholly unreasonable as to render the ordinance void.

It is suggested that, when a public street is dedicated, the dedicator must be held to contemplate and consent that such street may be brought to an official grade, and that his assignee of adjoining lots stands in his shoes; and that, if the street is acquired by eminent domain, the right to grade is included in the compensation awarded.But it may be also said that the dedicator is bound to know that an unrestricted power to grade is a continuing power, and that the exercise of such power is not in the nature of a compact, and that he must therefore be held to also contemplate and consent that, as the exigencies of growth...