City of Chicago v. Van Schaack Bros. Chem. Works, Inc.

• Decision Date: 06 June 1928
• Docket Number: No. 17994.,17994.
• Citation: 161 N.E. 486,330 Ill. 264
• Parties: CITY OF CHICAGO v. VAN SCHAACK BROS. CHEMICAL WORKS, Inc.
• Court: Illinois Supreme Court

330 Ill. 264

161 N.E. 486

CITY OF CHICAGO

v.VAN SCHAACK BROS. CHEMICAL WORKS, Inc.

No. 17994.

Supreme Court of Illinois.

April 21, 1928.

Rehearing Denied June 6, 1928.

Commissioners' Opinion.

Petition by the City of Chicago against the Van Schaack Bros. Chemical Works, Inc., for confirmation of a special assessment for sidewalk construction. From a judgment confirming the asessment, objector appeals.

Reversed and remanded.Appeal from Cook County Court; S. H. Hoover, Judge.

Defrees, Buckingham & Eaton and Church, Haft & Robertson, all of Chicago, for appellant.

Francis X. Busch, Corp. Counsel, William T. Crilly, and Langworthy, Stevens, McKeag & Hurley, all of Chicago, for appellee.

CROW, C.

On April 1, 1925, the city council of the city of Chicago passed an ordinance for the construction of a cement sidewalk 6 feet in width on the north side of Henderson street from the west line of Kimball avenue to the east line of North Central Park avenue (except in certain specified places) in the city. The ordinance provides the details for the material and the method of construction of the improvement. The engineer's estimate, which was submitted with recommendation of the board of local improvements, contains an itemized estimate of cost of the different parts of the improvement. On December 3, 1925, the city filed in the county court of Cook county a petition for confirmation of a special assessment for the construction of the sidewalk. An assessment roll was filed, assessing the property benefited at $2,213 and nothing for public benefits. Legal objections were filed, evidence heard, arguments presented, and the objections were overruled. On the hearing on benefits further evidence was presented, and the jury found that the property would be specially benefited in the amount stated in the assessment roll. The court entered judgment on the verdict and confirmed the assessment. From the judgment of the county court the objector prayed an appeal.

The property of the objector affected by the proposed improvement is located on the northwest side of the city and is included within a triangular area, with Henderson street, extending east and west, as the base or southern boundary, North Central Park avenue, extending north and south, forming the western boundary, and Avondale avenue, extending diagonally from northwest to southeast, completing the triangle at the southeastern point of intersection of that street with Kimball avenue and Henderson street, forming the northeast boundary. There are sidewalks on all those streets except on the north side of Henderson street, and on that a sidewalk extends from North Central Park avenue east to an alley. There is also on the north side of that street about 40 feet of sidewalk extending west from Kimball avenue to an employees' entrance to appellant's plant. The proposed improvement, when completed, would result in continuous sidewalks on both sides of Henderson street connecting with existing sidewalks on Kimball and North Central Park avenues, both of which streets are open north and south. The street next east of North Central Park avenue is Deake avenue, but there is an alley between those streets. Only three lots between the alley and North Central Park avenue are owned by appellant, though east of the alley it owns serveral lots facing east on Drake avenue, in that block. It owns all of the lots east from north Drake avenue to Kimball avenue on the north side of Henderson street. The south half of the tract from Drake avenue to St. Louis avenue (the next street east of Drake avenue) is vacant, but appellant proposes to use it in connection with its plant. The remainder of the property east to Kimball avenue is inclosed with a tight board fence about 8 feet in height. The buildings of appellant are in the inclosure extending from St. Louis avenue (if that street were actually extended) to Kimball avenue. St. Louis avenue is not paved, and there are no sidewalks on that street or on Drake avenue. On the west side of Drake avenue, north of appellant's property and immediately south of Avondale avenue, are five two-flat brick buildings. The property on the south side of Henderson street is for the most part improved and occupied with residences of laboring people. The territory to the west is improved with brick apartment and other residences; that to the north and east is industrial property. In the residence portion west and south of the property in question is a public school, a Catholic church, and a parochial school.

In appellant's plant are several substantial brick buildings, some sheet iron buildings and warehouses, steel tanks, sheds, and considerable vacant land inside and outside the inclosure. In some of the buildings are machinery and equipment for use in the manufacture of chemicals, and some of the buildings and machinery, it was testified, could not be used in their present condition in any other line of business because they were designed especially for chemical manufacturing. The value of the plant as a going concern was estimated by one of appellant's witnesses to be about $900,000 and by one of appellee's witnesses to be worth $1,250,000. About 75 persons are employed, most of whom come from east and south of the plant but none from the immediate vicinity. Most of them reach the plant by street car or railway. The Belmont avenue street car line runs east and west two or three blocks south of the plant, and the Chicago & Northwestern Railroad runs parallel with and along the northeast side of Avondale avenue, though on an elevation and separated from the street. It has stations not far from the plant. No employees or customers of appellant use the north side of Henderson street in walking to the entrance of the plant, which is at the intersection of Henderson street with Avondale and Kimball avenues,where the offices of the company are situated. There are no stores to be reached by going in either direction on Henderson street. The most convenient trading points are Belmont avenue on the south and Addison avenue to the north of the Chicago & Northwestern Railroad. Pedestrians coming from any point north of Henderson street on North Central Park avenue, if more convenient to Henderson street and Avondale avenue, would be required to cross to the south side of Henderson street in order to have the use of a sidewalk, and then would have to recross to the north side of Henderson street to reach the entrance to appellant's plant or points north on Kimball avenue. Appellant's business is wholesale, and practically no customers visit the plant. Most of the company's purchases are made by mail.

The president of appellant testified first on the legal objections that the company in the further development of its plant would desire to construct driveways, which would necessitate expensive changes if the sidewalks were built, and that there was already a good sidewalk on the south side of Henderson street. On the hearing on benefits he testified that the proposed sidewalk would not be used and that it would be a detriment to appellant's property instead of a benefit. One of the reasons assigned for the opinion was that some of the land adjacent to the plant is low, and a sidewalk constructed under those conditions would require some filling for the subgrade, and the walk would break down more or less frequently. The secretary of the company for the most part corroborated the president's testimony. Two other witnesses testifying for the objector stated that the improvement would not benefit its property. One of those witnesses testified that he was familiar with surrounding industrial property extending to about a mile from appellant's plant, and that from his observation when such industrial property is held and used for years for one purpose, under certain conditions it becomes immaterial whether there is a sidewalk adjacent to the plant. The testimony of an employee of the objector was offered, but upon objection he was not permitted to state his opinion as to whether the improvement would benefit appellant's property.

The superintendent of streets of the city testified on the hearing on legal objections to the general conditions, the substance of which has been stated. Two real estate dealers testified at the hearing on benefits on behalf of the city as to their familiarity with the property in question and other property in the vicinity. The first of those witnesses testified as to the residential character of the neighborhood west and south of appellant's plant, and that it is well built up with bungalows and two-flat apartment buildings. He expressed the opinion that the proposed improvement would benefit appellant's property at least $5,000. He stated that the property adjoining the proposed improvement, from the standpoint of appearance and accessibility, would be benefited at least $3 per foot on Henderson street and 75 cents to $1.50 per foot on the intersecting streets.

It is contended: (1) That the ordinance is unreasonable and void because the improvement is wholly unnecessary; (2) that the engineer's estimate is not in compliance with the statute; (3) that there was error in the admission and exclusion of evidence; and (4) that there was error in the giving and refusing of instructions.

Upon the first objections, appellee suggests that there is nothing before the court on this appeal to show that the trial court committed error in overruling the legal objections; that there is nothing in the abstract of the record to show that the points raised in certain objections, of which this is one, were brought to the attention of the trial court. A reference is made in the abstract to all of the legal objections in the following language:

‘The printed form of objections employed so frequently in Cook county assessments, containing 110 objections, is filed, and inasmuch as the sufficiency of said objections to cover the point being raised has not...