City of Chicago v. the Union Bldg. Ass'n.

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: City of Chicago v. the Union Bldg. Ass'n., 102 Ill. 379, 1882 WL 10239, 40 Am.Rep. 598 (Ill. 1882)
• Decision Date: 28 March 1882
• Parties: CITY OF CHICAGO et al.v.THE UNION BUILDING ASSOCIATION.

102 Ill. 379

1882 WL 10239 (Ill.)

40 Am.Rep. 598

CITY OF CHICAGO et al.

v.THE UNION BUILDING ASSOCIATION.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. WILLIAM H. BARNUM, Judge, presiding.

The Union Building Association filed a bill in the circuit court of Cook county, against the city of Chicago, alleging therein that complainant was a property owner and tax-payer of the city of Chicago, and the owner of a building on the south-west corner of Washington and La Salle streets, fronting on La Salle street 100 feet; that there was located on the south-east corner of Washington and La Salle streets a building, called the Chamber of Commerce, occupied by the Board of Trade of the city of Chicago, where its business was transacted; that because of said location, the members of said Board of Trade have their business offices in the immediate vicinity; that because of the location of said board at that place, the complainant had built a more expensive building in 1872 and 1873.

The bill further states, that about the 1st of January, 1881, divers persons, some connected with the city council or city government, commenced to agitate the removal of the Board of Trade to a certain piece of ground, bounded on the south by Van Buren street, on the east by Pacific avenue, on the north by Jackson street, and on the west by Sherman street, which would occupy the southern end of La Salle street, lying between Van Buren and Jackson streets, and that the city of Chicago was taking a direct part in aiding said removal, and that the board is unwilling to remove unless that part of La Salle street can be vacated; that a petition has been presented for such vacation to the council, which was referred to the committee on streets and alleys, and a report thereon made, and as a part of said report an ordinance vacating said street was recommended. On the 23d day of June, 1881, said ordinance was passed by a vote of 29 yeas to 6 nays. The ordinance is set out in the bill, and has been approved by the mayor.

The complainants aver that if the street shall be vacated they will suffer great damage to their property, which they are unable to establish with accuracy, and that all the property owners upon La Salle street, and other streets in the vicinity of the Chamber of Commerce building, will also be damaged to a great extent, which will entail a liability on the city of Chicago in excess of the limitation established by the constitution. The bill avers that there is no provision at law by which the damage can be ascertained, or determine what persons or property may be damaged by reason of the proposed vacation. The bill avers that unless the city of Chicago is restrained it will tear up the bed of that part of La Salle street so attempted to be vacated, and cause it to become impassable as a thoroughfare, and that the complainant will be prejudiced if an injunction is not issued immediately and without notice. The bill prays for an injunction against the city of Chicago, restraining it from proceeding to execute its orders for the vacation of that part of La Salle street between Jackson and Van Buren streets. A temporary writ was ordered and served upon the city.

The answer of the city of Chicago to the bill admits that the complainant is the owner of property; that the Chamber of Commerce is situated as in the bill described, and occupied by the Board of Trade; that many of the members of the board have offices in the vicinity of the said Chamber of Commerce; that persons about January 1, 1881, agitated the subject of the removal of the Board of Trade, as alleged in the bill, but neither admits nor denies that any persons connected with the city government participated in such agitation.

The answer avers that the Board of Trade would be removed whether La Salle street is vacated or not, and claims that all such matters are immaterial. The defendant admits that petitions were presented to the city council praying the vacation of La Salle street between Jackson and Van Buren streets, and attaches copies thereof as exhibits; that the petitions were referred to the committee on streets and alleys, and an ordinance reported on the 23d day of June, 1881, which was passed, as alleged in the bill.

The answer denies that there was any arrangement or agreement between the city or any of its officers with reference to the vacation of said street, or the removal of the Board of Trade. The answer sets out the location, and length of La Salle street to be 3700 feet, and gives a diagram of the premises where the vacation was made, and shows that Pacific avenue and Sherman street, parallel with the vacated part of La Salle street, were widened by dedication, as a condition to the vacation.

The answer further avers that all of the owners of property abutting on the vacated part released to the city all claims and demands for any injury caused thereby, and dedicated the ground necessary for the widening of the parallel streets. Defendant also sets forth the petitions of persons owning property on La Salle street for more than half its distance from the vacated part.

The answer further shows that the vacated part of La Salle street was obtained by condemnation proceedings in the year 1866, under the charter of the city, and avers that it is not liable for damages to the complainant or any other owner of property in the vicinity of the Chamber of Commerce, and if it is so liable there is ample remedy at law. The answer states that the complainant's building is 1780 feet from the vacated part of La Salle street.

The answer sets up that the city was reörganized under the act of 1872, and that by one of the provisions of said act the city council was authorized to vacate streets, and the defendant denies that it intended to tear up the bed of any portion of La Salle street, or to interfere with the same in any manner whatever, but avers, on the contrary, that on the passage of said vacation ordinance the premises were abandoned by the city, and defendant ceased to have any control over the same.

The following map shows the part of La Salle street to be vacated:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

On the 3d day of December, 1881, an amended and supplemental bill was filed making the Board of Trade of the city of Chicago, and John R. Bensley, parties defendant, as well as the city of Chicago. On the same day the Board of Trade of the city of Chicago filed its separate answer to the amended and supplemental bill. On the same day John R. Bensley filed an answer, adopting that of the Board of Trade. Replications were filed to the answers. On the same day a pro forma decree was rendered, granting the relief prayed for by the complainant, and declaring the ordinance of vacation illegal and void, and from this decree an appeal was prayed to the Appellate Court.

In the Appellate Court, on the filing of the record on the 14th day of December, 1881, the decree of the circuit court was, pro forma, affirmed, and an appeal taken to this court. The appellants now assign as error the decision of the Appellate Court in affirming the decree of the circuit court.

Mr. FRANCIS ADAMS, for the City of Chicago:

The city of Chicago has the power, by its charter, to vacate streets by ordinance passed by a majority of three-fourths of all the aldermen authorized by law to be elected, the vote to be taken by ayes and nays, and entered on the record of the council. Rev. Stat. ch. 24, art. 5, sec. 1, sub-secs. 7, 96; id. ch. 145, sec. 1.

The motives which influenced the city council to pass the ordinance can not be inquired into. Fletcher v. Peck, 6 Cranch, 129; Cooley's Const. Lim. 186, 208, note 3; Dillon on Municipal Corp. (3d ed.) 313; New York and Harlem R. R. Co. v. Mayor of New York, 1 Hilton, 588; Buell v. Ball, 20 Iowa, 292; Borough of Freeport v. Marks,59 Pa. St. 253; Jones v. Loving, 55 Miss. 109; Paine v. Boston, 124 Mass. 190.

The power to vacate a street is a discretionary power, to be exercised or not, as the public good may require, and the city council is necessarily the sole judge of the necessity for, and the expediency of, the exercise of the power. Dillon on Municipal Corp. (3d ed.) 945, old ed. 753, sec. 94; Goodrich v. Chicago, 20 Ill. 445; City of Joliet v. Verley, 35 Id. 63; Brush v. Village of Carbondale, 78 Id. 77; Spiegel et al. v. Gausberg et al. 44 Ind. 418; Gray v. Iowa Land Co. 26 Iowa, 387; Gazler v. Corporation of Georgetown, 6 Wheat. 593; Utica Ins. Co. v. Lynch et al. 3 Paige, 212; Sugar Refining Co. v. Mayor of Jersey City, 11 C. E. Green, 250; DesMoines Gas Co. v. City of DesMoines, 44 Iowa, 505; Wells v. Mayor of Atlanta, 46 Ga. 67; Danielly v. Cabaniss et al. 52 Id. 213; Baker v. City of Boston, 12 Pick. 192.

Merely consequential damage by reason of a public improvement, where no property is taken, is not within the meaning of either section 13 of the Bill of Rights, or the Eminent Domain law. Stetson v. Chicago and Evanston R. R. Co. 75 Ill. 75; Patterson v. Chicago, Danville and Vincennes R. R. Co. Id. 588; Peoria and Rock Island R. R. Co. v. Schertz, 84 Id. 135; Truesdale v. Peoria Grape Sugar Co. 101 Id. 561; Fearing et al. v. Irwin et al. 55 N. Y. 490; Sugar Refining Co. v. Mayor of Jersey City, 11 C. E. Green, 250.

Appellee has not shown sufficient interest to entitle it to the relief sought by the bill.

Mr. C. BECKWITH, for the appellant John R. Bensley:

An interference with a right enjoyed simply and solely as one of the public, is not actionable, except when such interference deprives an individual of some private right different in kind from the one enjoyed by the rest of the world. Caledonia Ry. Co. v. Ogilvy, 2 McQueen's Sc. App. 229; Ricket v. Metropolitan Ry. Co.L. R. 2 H. L. 175; Duke of Buccleagh v. Board of Works,L. R. 5. H....