City of Chicago v. Burcky

• Decision Date: 11 October 1895
• Citation: 158 Ill. 103,42 N.E. 178
• Parties: CITY OF CHICAGO v. BURCKY.
• Court: Illinois Supreme Court

158 Ill. 103

42 N.E. 178

CITY OF CHICAGO

v.BURCKY.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action on the case by Elsie Burcky against the town of Lake, the Chicago, Rock Island & Pacific Railroad Company, and the Lake Shore & Michigan Southern Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 57 Ill. App. 547. The city of Chicago, successor of the town of Lake, appeals. Affirmed.J. M. Palmer, W. S. Johnson, and B. Boyden, for appellant.

Alex. Clark, for appellee.

This was an action brought by Elsie Burcky against the town of Lake to recover damages sustained to a tract of land fronting east 337 feet on State street, and south 558 feet on Sixty-First street, in Chicago caused, as is alleged, by the vacation of a portion of Sixty-First street joining her land on the southwest. The following plat shows the location of plaintiff's property, the streets, and railroads, at the time the action was brought:

Image 1 (2.24" X 4.55") Available for Offline Print

As will be seen by the plat, west of plaintiff's property several railroad tracks, belonging to the Chicago, Rock Island & Pacific Railroad Company and the Lake Shore & Michigan Southern Railroad Company, crossed Sixty-First street at about right angles. Just south of, and adjoining, Sixty-First street and State street, at the aforesaid corner, those railroad companies owned a large tract of land, which was used by them for a switching yard and other usual railroad business, and was covered with numerous tracks. The town of Lake and the railroad companies considered the railroad crossing at Sixty-First street dangerous, and the town, on the 14th day of January, 1885, passed an ordinance authorizing the making of a contract with the railroad companies, whereby the companies were to erect on a strip of land 25 feet wide, belonging to them, and adjoining the south line of Sixty-First street, a viaduct, extending from a point 170 feet east of the east line of Wentworth avenue to a point 210 feet west of the west line of State street; the town to build the approaches thereto from Wentworth avenue and State street. When completed, the viaduct and approaches were to become a public highway. When the companies completed the building of the viaduct, the town was, by proper ordinance, to vacate that part of Sixty-First street, at the railroad tracks, commencing 139 feet east of the east line of La Salle street, and running to a point 198 feet further east, and to the west line of plaintiff's property. The contract, as thus provided for in the ordinance, was duly executed, and the viaduct built, and on December 30, 1885, the 198 feet on Sixty-First street, at the railroad crossing, as above described, was vacated. When this suit was commenced plaintiff's property consisted of an entire tract, as shown by the plat heretofore mentioned, but, before the trial of the cause in the circuit court, plaintiff subdivided the land, by opening through it two streets, running north and south from Sixty-First street, one known as ‘Butterfield Street,’ on the west side of the tract, and the other about half-way between Butterfield and State streets. The streets were each 66 feet wide, and the west line of Butterfield street is the west line of plaintiff's property, as situated when the action was begun. After the evidence was all introduced, the defendant requested the court to instruct the jury as follows: ‘The jury are instructed that, it being admitted that the fee-simple title to the street in question [Sixty-First street] was in the city, and it appearing from the evidence that the property claimed to be damaged does not abut upon that portion of 61st street that was vacated, but is situated in another block, east of the block in which the portion of said 61st street was vacated, the plaintiff has failed to prove any actionable injury on account of the said vacation of 61st street, and all evidence of any damage done to plaintiff's property by reason of the said vacation is not to be considered by the jury in arriving at a verdict in this case.’ This instruction was refused, and the decision is relied upon as error.

CRAIG, C. J. (after stating the facts).

The viaduct and its approaches, constructed along the south line of Sixty-First street, was about one-quarter of a mile long, and extended from Wentworth avenue to State street. The construction of the viaduct opposite the plaintiff's land prevented the laying out of any streets south, and stopped all travel in that direction, while the vacation of that portion of Sixty-First street crossed by the railroad tracks stopped all travel west, so that the property of plaintiff, abutting on Sixty-First street, between the railroad tracks and State street, was shut in, and all access shut off from the south and from the west. By the construction of the viaduct south of plaintiff's property, and by closing the street west of the property, and thus stopping all communication south...