City of Chicago v. Partridge

• Decision Date: 25 February 1911
• Parties: CITY OF CHICAGO v. PARTRIDGE.
• Court: Illinois Supreme Court

248 Ill. 442
94 N.E. 115

CITY OF CHICAGO
v.
PARTRIDGE.

Supreme Court of Illinois.

Feb. 25, 1911.

Appeal from Cook County Court; William L. Pond, Judge.

Proceedings by the City of Chicago for a special street assessment, to which C. W. Partridge objected. The objection was sustained and the proceedings dismissed as to the objector's property, and the City appeals. Reversed and remanded, with directions.

[248 Ill. 443]

[94 N.E. 116]

George A. Mason and William T. Hapeman (Edward J. Brundage, Corp. Counsel, of counsel), for appellant.

William J. Donlin, for appellee.

COOKE, J.

Appellant, the city of Chicago, filed its petition in the county court of Cook county praying that steps be taken to levy a special assessment for paying with creosoted wooden blocks Cottage Grove avenue from Fifty-First street to Fifty-Ninth street, in the city of Chicago, in accordance with the provisions of an ordinance of the city of Chicago passed July 1, 1907. Proceedings were had in said cause which resulted in the making and filing of an assessment roll showing an assessment of benefits against the property of appellee, C. W. Partridge, on account of the proposed improvement.[248 Ill. 444]Appellee interposed numerous objections to the confirmation of the assessment against his property, but upon the hearing in the county court relied solely upon the following objection: That in a former proceeding in the county court of Cook county for the paving of Cottage Grove avenue from Drexel square to the center of Fifty-Ninth street, wherein objections were filed as to certain property other than that of appellee, the objections were sustained, and the petition was dismissed on August 4, 1902, for the reason that the city of Chicago had no jurisdiction over Cottage Grove avenue between Drexel square and the center of Fifty-Ninth street for the purpose of making such improvement, and that such jurisdiction was vested exclusively in the board of South Park Commissioners; that upon appeal from the order dismissing said petition this court affirmed the finding and judgment of the county court; that thereafter, on March 31, 1903, the mandate of this court was filed in the county court, and on November 7, 1904, all orders entered in said proceeding were vacated and set aside and the petition dismissed. A hearing before the court upon this objection resulted in a judgment sustaining the objection and dismissing the petition as to appellee's property, from which judgment the city of Chicago has appealed to this court.

The evidence introduced by appellee in support of his objection consisted of the record of the former proceedings, and showed that in 1902 the city of Chicago filed its petition in the county court of Cook county praying that steps be taken to pave the east half of Cottage Grove avenue from Drexel square to the center of Fifty-Ninth street, in accordance with the provisions of an ordinance of the city of Chicago; that an assessment of benefits was made and confirmed in that proceeding against the property of appellee and other property on the east side of Cottage Grove avenue, the judgment of confirmation against the appellee's property having been rendered upon default; that certain [248 Ill. 445]property owners other than appellee interposed objections in that proceeding to the confirmation of the assessment against their lands; that these objections were heard upon a stipulation of facts, which stipulation is set out in the statement preceding the opinion in the case of City of Chicago v. Carpenter, 201 Ill. 402, 66 N. E. 362; that the objections were sustained on the ground that it appeared from the stipulation and from section 5 of the supplemental park act, approved April 16, 1869 (1 Priv. Laws 1869, p. 366), that the city of Chicago had no jurisdiction over that portion of Cottage Grove avenue sought to be improved, for the purpose of making the improvements specified in the ordinance under which that proceeding was instituted, but that such jurisdiction was vested exclusively in the Board of South Park Commissioners, and the petition was dismissed as to the property of the objectors in that proceeding; that the city of Chicago prosecuted an appeal from the judgment sustaining objections and dismissing the petition to this court; that the judgment of the county court was affirmed (City of

[94 N.E. 117]

Chicago v. Carpenter, supra); that the mandate of this court affirming the judgment was filed in the county court; and that on November 7, 1904, all orders entered in the proceeding were vacated and set aside and said petition dismissed.

In rebuttal of the evidence introduced by appellee showing the former proceeding in the county court, appellant offered evidence showing that the Board of South Park Commissioners had never assumed or exercised any jurisdiction over Cottage Grove avenue from Fifty-First street to Fifty-Ninth street, and that the improvements made by the Board of South Park Commissioners upon the west half of Cottage Grove avenue between those streets, as detailed in the stipulation in the former proceeding, were all made by the Board of South Park Commissioners as owner of abutting property, under permission granted by the city of Chicago, and not in the exercise of jurisdiction over Cottage[248 Ill. 446]Grove avenue. Evidence in rebuttal was also offered by...