City of Dixon v. Sinow & Weinman

• Decision Date: 23 December 1932
• Docket Number: No. 21237.,21237.
• Citation: 183 N.E. 570,350 Ill. 634
• Court: Illinois Supreme Court
• Parties: CITY OF DIXON v. SINOW & WEINMAN et al.

350 Ill. 634

183 N.E. 570

CITY OF DIXON

v.SINOW & WEINMAN et al.

No. 21237.

Supreme Court of Illinois.

Dec. 23, 1932.

Proceeding on the petition of the City of Dixon for the levy and confirmation of a special street improvement assessment, in which proceeding Sinow & Weinman and others filed objections to the confirmation of the assessment. From a judgment dismissing the petition, the city appeals.

Affirmed.Appeal from Lee County Court; William L. Leech, Judge.

Martin J. Gannon, City Atty., of Dixon (Elwin M. Bunnell, of Dixon, of counsel), for appellant.

Henry C. Warner and Edward E. Wingert, both of Dixon, for appellees.

DE YOUNG, J.

The city of Dixon filed a petition in the county court of Lee county for the levy and confirmation of a special assessment to defray the cost of improving certain streets in that city. Fourteen owners of lots and parcels of land filed objections to the confirmation of the assessment. Their objections to the legality and sufficiency of the ordinance which forms the basis of the petition were sustained and the petition was dismissed. The city prosecutes this appeal.

The ordinance in question was passed by the council of the city of Dixon on September 12, 1931. It provides for the excavation and widening of the roadways of portions of First and Second streets and Galena, Hennepin, and Peoria avenues, the replacing of sidewalks where curbs are moved, the rebuilding of storm-water curb inlets, and the laying of concrete sidewalks.

Under portions of the surface of the roadways to be widened are privately owned vaults and coal holes and on the surface of the strips to be taken for the widening of the roadways are trees, mail boxes, water hydrants, gas connections, gasoline service station pumps, telephone and electric light poles, an arch, and a drinking fountain. The ordinance provides for adjustments in the vaults and coal holes, but not for the removal of the objects on the surface of the strips to be appropriated for the widened roadways. There is no provision for the payment of damages to private property, and it is objected that the ordinance requires the taking or damaging of such property for public use without just compensation.

It is conceded that the respective owners of the lots or parcels of land abutting on each of the streets to be improved hold title to the center of the street subject to the easement for public purposes. The easement for a street includes such use of the land at or beneath the surface as will make the easement effective. In the case of a street, where the fee remains in the adjacent landowner, the public authorities may change the grade, build sewers, drains, and culverts, lay water pipes, and make, or cause to be made, various other improvements; and the owner of the fee has no right to interfere with the use of the street for public purposes. Town of Palatine v. Kreuger, 121 Ill. 72, 12 N. E. 75;City of Quincy v. Bull, 106 Ill. 337. The owner of the land under a street, however, may make any reasonable use of his land that is not inconsistent with the proper enjoyment of the easement by the public. Tacoma Safety Deposit Co. v. City of Chicago, 247 Ill. 192, 93 N. E. 153,31 L. R. A. (N. S.) 868,20 Ann. Cas. 564;Sears v. City of Chicago, 247 Ill. 204, 93 N. E. 158,139 Am. St. Rep. 319,20 Ann. Cas. 539;Davis v. City of Chicago, 333 Ill. 422, 164 N. E. 673. The dominant rights of the public made it unnecessary in this case to incorporatein the ordinance a provision for the payment of damages to private property.

[6] It is further objected that the owners whose real property is assessed have the right to know that the obstructions on the strips in question will be removed before they are required to pay the assessment. Some of the objects required to be removed are few in number or small in quantity and the cost of their removal will be slight. An ordinance for a local improvement will not be declared void on account of the omission from the estimate of an item which is trifling when compared with the whole cost of the improvement. City of Pekin v. Grussi, 338 Ill. 196, 170 N. E. 313;Patton v. Village of Palestine, 304 Ill. 489, 136 N. E. 727. Trees, mail boxes, drinking fountains, street arches, gasoline pumps, gas and water connections, and telephone and electric light poles within the street lines and on the strips to be improved are subject to the control of the city, and there is no necessity for a provision in a local improvement ordinance requiring their removal. People ex rel. Lapice v. Wolper (Ill.) 183 N. E. 451;City of Mt. Carmel v. Shaw, 155 Ill. 37, 39 N. E. 584,27 L. R. A. 580, 46 Am. St. Rep. 311; City of Quincy v. Bull, supra. Moreover, the evidence discloses that the company which owns the electric light poles is willing, at its own expense, to remove them, and the telephone company is obligated by an ordinance passed in 1927 to change the location of its structures and equipment, if necessary, upon the widening of streets in the city of Dixon. The objection is not tenable.

The ordinance provides that where there are vaults underneath, the present sidewalks back of the new curbs and the new curbs and gutters shall be supported on a concrete beam reinforcement with a steel I-beam and have a six-inch reinforced concrete deck extending from the reinforced beam to the present vault wall. In the case of thirteen of such vaults the supporting concrete beam shall be ten by sixteen inches and the I-beam twelve inches; and the reinforced beam shall be carried on eight-inch cast-iron columns located not to exceed sixteen feet from center to center, and the columns shall be carried on concrete foundations three feet square at the bottom, eighteen inches square at the top, and thirty inches deep. With respect to eighteen other vaults, the supporting concrete beam shall be eight by sixteen inches and the I-beam eight inches and the reinforced beam shall be carried on pilasters twelve inches thick, varying in width from six to twenty-six inches, and the distances between their centers shall not exceed sixteen feet.

The objections urged to the foregoing provisions of the ordinance are that the composition of the concrete and the dimensions of the decks are not specified; that the number and the locations of the iron columns and pilasters, and the width of the pilasters are not fixed; and that in the estimate items...