City of Chicago v. Le Moyne

• Decision Date: 07 October 1902
• Docket Number: 734.
• Parties: CITY OF CHICAGO v. LE MOYNE. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

119 F. 662

CITY OF CHICAGO v. LE MOYNE. ^[1]

No. 734.

United States Court of Appeals, Seventh Circuit.

October 7, 1902

Thomas J. Sutherland, for plaintiff in error.

Wey Frank Hamlin, for defendant in error.

The defendant in error brought action against the city of Chicago for damage to his property occasioned by the construction of a viaduct in Halsted street, immediately adjacent to a portion of his premises. The block which contains the premises in question is bounded on the north by Thirty-Ninth street, on the east by Emerald avenue, on the south by Fortieth street, and on the west by South Halsted street. There is an alley running north and south through the center of the block. The block comprises 43 lots, numbered consecutively from 1 to 43, commencing at the corner of Thirty-Ninth Street and Emerald avenue, except that lot 43 is situated at the southwest corner of the block, and is bounded on the north by a 16-foot alley running east and west from Halsted street to the north and south alley. The lot is 44 feet in width on the north and south alley, and runs to a point on Halsted street. Le Moyne was the owner of lots 1 to 8, both inclusive, and of lots 14 to 22, both inclusive, all fronting on Emerald avenue; of lots 38 and 39, being the fourth and fifth lots south from the southeast corner of Halsted street and Thirty-Ninth street; and of lot 43, above described. Fortieth street had for years been occupied with 17 railway tracks of the Stockyards & Transit Company, which owned or occupied all the property on the west side of Halsted street from Thirty-Ninth street on the north to Forty-Seventh street on the south. Upon Halsted street was constructed and operated a street car line as far south as Fortieth street, and there was also a street car line on South Halsted street extending from the south side of Fortieth street, the street railway not crossing Fortieth street on account of the numerous railway tracks thereon, so that passengers traveling north and south over Fortieth street were obliged to do so on foot. The city caused to be constructed the viaduct in question for the purpose of uniting the two street railways, and to give them an overhead crossing, to avoid the dangerous grade crossing on Fortieth street. This began a little north of Thirty-Ninth street, rising to the south. In front of lots 39 and 39 the elevation was 5.69 feet, and at lot 43, 18.29 feet, above the established grade. The viaduct was constructed under contract with the city, and under an order of the city passed January 6th, which was as follows:

'Whereas by order of the city council, passed October 14, 1895, the department of public works was directed to notify the Chicago City Railway Company to run its cars on Halsted street across the railroad tracks at Fortieth street, in order not to compel passengers to take transfers at that point and walk a block across the tracks; and by resolution of the city council of December 9, 1895, a committee was appointed to confer with the Chicago City Railway Company, in regard to the inadequacy of service in that portion of the city; and by order of the city council, passed December 23, 1895, the commissioner of public works was directed to compel the Chicago City Railway Company to run their cars on Halsted street, from O'Neil street to 69th street, without change of cars, and whereas, by order of the city council, passed September 22, 1890, the mayor and commissioner of public works were directed to confer with the Union Stock Yard and Transit Company to the end that some mutual agreement might be made for the construction of a viaduct over the stock yards tracks across Halsted street between 39th and 40th streets; and in the report regarding the elevation of the tracks of the Union Stock Yard and Transit Company, submitted to the mayor by the consulting engineer of the city, under date of May 29, 1895, it is recommended that the elevation of such tracks commence east of Halsted street, and that a viaduct be constructed over the seventeen (17) tracks of that company, which pass out of the stock yards and occupy a length of some 350 feet in Halsted street, in order to obviate the great danger and delay at this grade crossing, which will be aggravated through the introduction of the electric cars of the Chicago City Railway Company on Halsted street, across these numerous railroad tracks:

'Ordered, that the mayor and commissioner of public works be, and they are hereby, directed to cause plans to be forthwith prepared for a viaduct, with suitable approaches, on Halsted street, over the tracks of the Union Stock Yard and Transit Company south of 39th street, and to let the necessary contracts for the construction of the same, upon obtaining from the Union Stock Yard and Transit Company and the Chicago City Railway Company, or either or both of said companies, an agreement to provide all moneys required to meet such contracts.'

At the time lots 1 to 8, both inclusive, and lots 38 and 39, were occupied by one Donahue for the purpose of a coal yard, with its business frontage on Halsted street, under lease dated 1895, and expiring in 1906; and lots 14 to 22, both inclusive, and lot 43, were occupied by one Flannagan in a slaughtering and packing business, with an entrance on Halsted street and none upon Emerald avenue, under lease dated 1892, and expiring in 1902. The north and south alley was either not known as such to the public, or was used in connection with and as part of the property. It had not in fact been open to the general use of the public, but had been built upon the tenants of the property in question and of the other lots in the block.

The trial resulted in a verdict for the plaintiff below, and upon writ of error the city of Chicago brings the cause here for review. There are 73 assignments of errors in the record, which may be thus classified: 3 with regard to the refusal of the court to direct a verdict for the city; 35 with regard to the admission or exclusion of evidence; 23 with regard to the refusal of instructions requested by the city; 6 with regard to the charge of the court; and 4 with regard to the refusal to award a new trial for excessive damages, that the verdict was not sustained by the evidence, and for error in entering judgment upon the verdict. So far as deemed essential these assignments are stated in the opinion.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

JENKINS Circuit Judge (after stating the facts).

The contention that the construction of the viaduct was in the legitimate exercise of the police power of the city, and that any damage to property thereby occasioned is damnum absque injuria, notwithstanding the constitutional provision that 'private property shall not be taken or damaged for public use without just compensation,' cannot be sustained. The question is set at rest by the recent decision of the supreme court of Illinois in City of Chicago v. Jackson (as yet unreported officially) 63 N.E. 1013, holding, with Judge Dillon, that 'a right conferred or protected by the constitution cannot be overthrown or impaired by any authority derived from the police power. ' Dill. Mun. Corp. (3d Ed.) Sec. 142. So, also, the contention that the order of the city council of January 6, 1896, is void, and furnished no authority for the construction of the viaduct, is without support in law. The city, having caused the construction, must respond for the damages occasioned. It cannot shield itself under cloak of a void order. City of Chicago v. Spoor, 190 Ill. 340, 60 N.E. 540.

This brings us to the consideration of the many objections to evidence upon the trial, being 35 in number. It is to be remarked by way of preface that the bill of exceptions as presented is not conformable to the rule of this court. Rule 10, par. 2, 32 C.C.A. lxxxvii, 91 F. v, provides that a bill of exceptions 'shall contain of the evidence only such a statement as is necessary for the presentation and decision of questions saved for review, and unless there be saved a question which requires the consideration of all the evidence, a bill of exceptions containing all the evidence shall not be allowed. ' The document submitted to our consideration is a stenographic report of all the proceedings of a trial continuing through five days. It embodies not only all the evidence, but all the arguments of counsel to the court, the remarks of the court, and colloquies between counsel; so that an unnecessary burden is imposed upon the court to search this voluminous record for the 'two grains of wheat hid in two bushels of chaff. ' In the preparation of the bill the lawyer abdicated his function in favor of the stenographer. Such practice may be a saving of labor to counsel, but it is neither lawyer- like nor just to the court or to client. This bill should,ever have been signed by the trial judge, and we would not be subject to just criticism if we declined to consider the errors assigned. We have concluded, however, to remark upon such of them as we think deserving of mention.

(1) The plaintiff below introduced a witness, who produced a plat made by him, which he stated was a correct plat of the property, showing its surroundings. The plant was made from an original survey by the witness. The lots placed upon the plat, and the figures of the dimensions of the lots, were obtained from the original plat on record in the recorder's office. The objection stated to the allowance of this plat in evidence is that it was not the best evidence, and that the original plat should have been produced. The objection is without merit. The object was to show to the jury the location of the property by the surveyor who had measured it. It would have been competent for him while upon the stand to have...