City of East St. Louis v. O'Flynn

• Decision Date: 25 January 1887
• Citation: 119 Ill. 200,10 N.E. 395
• Parties: CITY OF EAST ST. LOUIS v. O'FLYNN.
• Court: Illinois Supreme Court

119 Ill. 200

10 N.E. 395

CITY OF EAST ST. LOUIS

v.O'FLYNN.

Supreme Court of Illinois.

January 25, 1887.

Appeal from appellate court, Fourth district.

G. Pollard and Geo. F. O'Melveng, for City of East St. Louis, appellant.

J. M. Freels and L. M. Hite, for O'Flynn, appellee.

SCOTT, C. J.

This action was brought in the city court of East St. Louis, by James O'Flynn against the city of East St. Lois, to recover damages alleged to have been occasioned to a lot of ground owned by him by the wrongful conduct of defendant. It is recited in the declaration defendant is an incorporated city, and had exclusive control of certain streets within the corporation limits, viz.: Trendly street, Church street, and Pratt street, running at right angles with the Mississippi river on the eastern bank, and from thence eastward to the old bed of the river, near the mouth of Cabokia creek, and also Front, Second, Third, and Fourth streets, running parallel with the river and with each other, and also all alleys lying within the district bounded by the streets named; and the duty of defendant to keep such streets and alleys open, clear of obstructions, and in good repair for the use of the inhabitants of the city and adjacent owners is then averred in the usual ample form. It is further set forth that plaintiff is the owner and was in possession of lot 9, in block 28, of the Ferry division fronting west on Third street, and east on a 30-feet alley, on which there is a frame dwelling-house with outbuildings and other valuable improvements, and, by way of a breach of duty on the part of defendant, it is then averred the city, by an ordinance entitled ‘An ordinance vacating certain streets and alleys lying between Front street and Fourth street, 70 feet northwardly therefrom, and Church street, in Ferry DIVISION,’ AUTHORIZED THE CAIRO & ST. LOuis railroad company to take possessIon of all that portion of said streets and alleys lying between Front and Fourth streets, and a line parallel with Trendly street, and 70 feet northwardly therefrom, and the entire length of Church street, and permitted the railroad company to make a certain use of the land lying within or bounded by the streets named; all of which alleged wrongful acts it is averred injuriously affect plaintiff's property.

Section 3 of the ordinance referred to in the declaration, and given in evidence by plaintiff, is as follows: ‘That all streets and alleys lying between Front and Fourth streets, and between a line running parallel with Trendly street, seventy (70) feet northwardly therefrom, and Church street, of said Ferry division, be, and the same is hereby, absolutely vacated.’ The other sections of the ordinance prescribe the terms and conditions upon which the railroad company may occupy and improve the lands adjacent to the streets and alleys vacated, and including, of course, the streets and alleys, but, in the view it is thought should be taken of the case, it will not be necessary to state their contents in detail.

Only the general issue was pleaded by defendant, and on the trial of the cause the jury found the issues for plaintiff, and assessed his damages at $850. The judgment rendered upon the verdict was affirmed in the appellate court of the Fourth district, and, a majority of the judges of that court having made the proper certificate to enable it to do so, defendant brings the case to this court on its further appeal.

There is no suggestion the streets and alleys mentioned in the ordinance were not legally vacated. No one makes any complaint on that score. Plaintiff's lot is situated in another block. Although the lot in controversy fronts on Third street, it is some distance from that part of Third street that is vacated by the city ordinance. The only question that can be considered in this court is purely a question of law. It is, can defendant, as a matter of law, be held liable to the plaintiff for damages resulting from the vacation of streets and alleys between Front and Fourth streets, the...