City of Chicago v. Baker
| Decision Date | 18 April 1898 |
| Docket Number | 458. |
| Citation | 86 F. 753 |
| Parties | CITY OF CHICAGO v. BAKER. |
| Court | U.S. Court of Appeals — Seventh Circuit |
T. J Sutherland, for plaintiff in error.
Clarence S. Darrow, for defendant in error.
Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.
The defendant in error was given judgment against the city of Chicago, in the sum of $5,000, for damages caused to property on the southwest corner of Clark street and Twenty-First street by the vacation of the latter street where crossed by the tracks of the Lake Shore & Michigan Southern and the Chicago, Rock Island & Pacific Railway Companies. Besides the city, those companies were made defendants to the action, and damage attributed to the elevation of their tracks, as well as to the vacation of the street, was claimed; but, under the peremptory instruction of the court, those companies were found not guilty.
The radical proposition of the plaintiff in error, that 'the ordinance, under which Twenty-First street, near the plaintiff's premises, was closed, was passed by the city in the exercise of its police powers, and hence no right of action accrued to the plaintiff by reason of the same, or of any acts done in pursuance thereof,' we do not deem tenable. The right to regulate the use of streets is recognized to be a police power, but no decision has been cited, and we know of none, in which it has been held or said that the power to vacate streets is of that character; and as we conceive, it could not be regarded as of that quality in a particular instance because exercised in connection with the exercise of another power conceded to be of that kind like the power to compel the elevation of railroad tracks. When in this instance the city determined that the railroad tracks adjacent to the property of the defendant in error should be elevated, it was a matter of choice on the part of the city, and was made a matter of agreement between the city and the railroad companies, what streets should have subways and that should be closed; and, when it was determined that Twenty-First street should be closed where crossed by the railroad tracks, if there resulted to the property of the defendant in error a special injury, for which he was otherwise entitled to compensation, it would be an exceedingly harsh and unjust conclusion to say that the harm resulted from the exercise of a police power, and was therefore damnum absque injuria, or remediless. If there could have been doubt on the question, it was removed by an act of the legislature of Illinois (section 1, c. 145, Rev. St. Ill.), which, after defining the 'power to vacate or close any street or alley, or portion of the same,' provides that, 'when property is damaged by the vacation or closing of any street or alley the same shall be ascertained and paid as provided by law. ' Instead of this meaning no more than the constitutional provision that 'private property shall not be taken or damaged for public use without just compensation,' etc., it is a specific provision that there shall be compensation for damage caused to property by the vacation of a street or alley, or a portion thereof; and if before that enactment the vacation of a street could have been regarded as an exercise of police power, for the injurious results of which there could be no right of compensation, the statute to that extent abolished the doctrine, and established the rule for such cases that the individual, when sacrificed for the benefit of the public, shall not go unrecompensed.
The second proposition advanced is that the plaintiff had no cause of action because the closed portion of the street was not adjacent to his property; but, while it is conceded that no one can recover for an injury suffered in common with the public, it is not essential to the right of action, under the decisions in Illinois, that the property alleged to have been injured should abut upon the vacated portion of the street. See Rigney v. City of Chicago, 102 Ill. 64; City of Chicago v. Union Building Ass'n, Id 379; Littler v. City of Lincoln, 106 Ill. 353; City of East St. Louis v. O'Flynn. 119 Ill. 200, 10 N.E 395; Chicago Anderson Pressed-Brick Co. v. City of Chicago, 138 Ill. 628, 28 N.E. 756; Parker v. Catholic Bishop, 146 Ill. 158, 34 N.E. 473; City of Chicago v. Burcky, 158 Ill. 103, 42 N.E. 178. While no part of Twenty-First street within a rod of the property of...
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