City of Kankakee v. Illinois Cent. R. Co.

• Decision Date: 20 February 1913
• Citation: 257 Ill. 298,100 N.E. 996
• Parties: CITY OF KANKAKEE v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

257 Ill. 298

100 N.E. 996

CITY OF KANKAKEE

v.ILLINOIS CENT. R. CO.

Supreme Court of Illinois.

Feb. 20, 1913.

Appeal from Kankakee County Court; A. W. Deselm, Judge.

Proceeding by the City of Kankakee for the assessment of benefits for a special improvement, to which the Illinois Central Railroad Company objected. From a judgment of the county court confirming the assessment, the objector appeals. Affirmed.

W. R. Hunter, of Kankakee, for appellant.

Wayne H. Dyer and John H. Beckers, both of Kankakee, for appellee.

COOKE, J.

This is an appeal from a judgment of the county court of Kankakee county confirming the assessment for a local improvement consisting of the paving of certain streets of appellee. On June 3, 1912, the city council of appellee, the city of Kankakee, passed an ordinance providing for a system of local improvement by the grading, paving, curbing, etc., of Station street from East avenue west to the city limits, of Hickory street from West avenue to East avenue, and of West avenue from the south line of Court street to the north line of River street. The improvement on Station street, which extends east and west, is a little over five blocks in length, and that on West avenue, which extends north and south, is five blocks in length. The improvement on Hickory street extends across the right of way of appellant, the Illinois Central Railroad Company, a distance of 200 feet. West avenue is parallel with and adjoins on the west the right of way of appellant. East avenue is also parallel with and adjoins on the east the same right of way. This right of way is 200 feet in width. The intervening streets between Court and River, in their order from north to south, are Merchant, Station, Hickory, and Bourbonnais. That part of the right of way of appellant lying between Court and River streets is used for the main tracks of appellant's railroad, and for various switch and team tracks. It also composes the station grounds of appellant. Appellant's passenger depot is situated along the east line of its right of way adjoining East avenue, and is directly in the line of Merchant street, which extends both east and west from appellant's property, but is not open across the right of way. The freight depot is situated immediately east of and adjoining West avenue and north of Station street. Extending north from the freight depot is a loading platform about 400 feet in length. Aside from these buildings, there are also, on the right of way, a restaurant or lunch room, various coal sheds and coal offices, where dealers in coal conduct their business, water towers, tool sheds, and such buildings as are usually found on station grounds. The street level on West avenue does not coincide with the level of the right of way throughout the entire length of this improvement; in some places the street being lower than the right of way and in others higher. The total amount of the assessment upon all the property assessed is $44,840, of which the sum of $13,309.30 is assessed against the right of way of appellant. Appellant filed various objections to this assessment; and, upon the hearing of the legal objections, the same were all overruled on the ground that they were not urged. Upon the hearing upon the question of benefits, a jury was waived. Evidence was submitted by both appellant and appellee; and, by agreement of the parties, the court viewed the right of way of appellant involved in the proceedings, and the locus of the proposed improvement.

[1] Appellant on this appeal seeks to raise some of the matters which could have been urged in the county court on its legal objections. Under the state of the record, those questions are not now open for our consideration. The bill of exceptions shows clearly that these objections were not urged by appellant, and were thus waived and abandoned; and no error can be assigned on the pro forma action of the county court in overruling them. The only questions left for our determination are those raised by the other assignments of error, which are whether the property of appellant is specially benefited by the construction of the proposed improvement, and, if so, whether it is benefited to the amount assessed thereon, and whether it has been assessed more than its proportionate share.

[2] It is objected that the whole of appellant's right of way between the south line of Court street and the north line of River street is assessed for benefits, whereas this improvement extends along the west side thereof only, and could be of no benefit to that part of the right of way lying east of the roadbed and railroad tracks of appellant. Section 40 of the local improvement act (Hurd's Rev. St. 1911, c. 24, § 546) provides that in any special assessment the property of railroad companies may be described in any manner sufficient to reasonably identify the property intended to be assessed. The right of way of a railroad company through a city is not subdivided into...