City of Chicago v. Wells

• Decision Date: 26 October 1908
• Citation: 86 N.E. 197,236 Ill. 129
• Parties: CITY OF CHICAGO v. WELLS.
• Court: Illinois Supreme Court

236 Ill. 129

86 N.E. 197

CITY OF CHICAGO

v.WELLS.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Cook County Court; D. T. Smiley, Judge.

Proceedings by the city of Chicago against Jane Creigh Wells to confirm a special assessment for laying water service pipes. From a judgment of confirmation, defendant appeals. Reversed and remanded.

John M. Blakeley, for appellant.

George A. Mason, William T. Hapeman, and Eugene H. Dupee (Edward J. Brundage, Corp. Counsel, of counsel), for appellee.

CARTWRIGHT, C. J.

The county court of Cook county overruled the objections of the appellant to the special assessment against her property, abutting on North Clark street, for the purpose of laying water service pipes in said street between Devon avenue and Howard street, which questioned the authority of the city to subdivide appellant's property and assess it in strips of 25 feet each. Appellant excepted, and waived a jury on the question of benefits, which question was submitted to the court for decision. The court overruled all objections, and entered judgment of confirmation, from which judgment this appeal was taken.

The ordinance provides for laying lead water service pipes, with brass taps and stopcoocks and spiral cast-iron shut-off boxes, from the public main water pipe in the street to a point 7 feet from the street line of each of the lots, blocks, tracts, and parcels of land described therein. The appellant is the owner of a tract of land, the legal description of which is block 2, Rogers Park, Cook county, Ill. It is bounded on the east by Clark street, on the south by Touhy avenue, on the north by Rogers avenue, and on the west by the right of way of the Chicago & Northwestern Railway Company, and it has never been subdivided into lots. The ordinance divides the block into 46 strips of ground, each 25 feet in width, described in the ordinance as ‘N. 25 ft.-S. 25 ft. N. 50 ft.-S. 25 ft. N. 75 ft.,’ etc. The assessment against each of the strips is $20.52, making a total assessment of $948.92.

The authority to subdivide appellant's block of land is claimed by appellee under the following portion of section 41 of the Local Improvement Act (Hurd's Rev. St. 1905, c. 24, § 547), added by amendment in 1901 (Laws 1901, p. 106): ‘Unsubdivided tracts of land may, for the purpose of spreading assessments for house drains and water service pipes, be divided into lots of a frontage of twenty-five feet each; and any fraction of frontage then remaining may be assessed as a fractional lot.’ Prior to that amendment it was decided in several cases that a city had no power arbitrarily to subdivide a piece of land which the owner had allowed to remain in one parcel. In Warren v. City of Chicago, 118 Ill. 329, 11 N. E. 218, there was an assessment like this, for the purpose of constructing water service pipes to be laid and connected with the main water pipe, and it was held that an arbitrary subdivision of the appellant's lots for the purpose of the special assessment was without any authority, either in law or fact. In Cram v. City of Chicago, 139 Ill. 265, 28 N. E. 758, which was another special assessment to lay water service pipes, the ordinance subdivided the property into strips of 25 feet, each of which was assessed a certain sum. The court said that an arbitrary description, or one having no foundation in fact, could never have been contemplated by the law, and that the property should have been proceeded against, as it was known and legally described. In People v. Cook, 180 Ill. 341, 54 N. E. 173, where the question arose in a collateral proceeding for judgment against delinquent lands on a special assessment for laying drain pipe, it was held that the ordinance, which subdivided the tract into 44 parcels, was void. The decision was not rested on the want of an enabling act, but upon the rights of an owner of land. The court said (page 343 of 180 Ill.,page 174 of 54 N. E.): ‘The owner of property cannot be compelled to subdivide his land into 25-foot strips fronting upon a street. The owner has a right to subdivide his land in such a way as he sees fit. He may use his own pleasure and best judgment in subdividing it, so that it will produce to him the best revenue. A municipality cannot dictate to the owner how he shall subdivide his land.’ In Bickerdike v. City of Chicago, 185 Ill. 280, 56 N. E. 1096, the ordinance for a sewer provided that house slants should be placed in both sides of the sewer, opposite every 20 feet of lot frontage. It was again said that a city cannot dictate to an owner how he shall subdivide his land, and that property cannot be assessed in the character of lots when not subdivided. It did not appear in that case what the house slants were, and it was assumed, as the language indicated, that they were substantial parts of the improvement, adding materially to the cost, but it appeared in subsequent cases that they were nothing more than open joints in the main pipe of the sewer, where...