City of Kankakee v. Dunn
| Decision Date | 20 December 1929 |
| Docket Number | No. 19865.,19865. |
| Citation | 169 N.E. 251,337 Ill. 391 |
| Parties | CITY OF KANKAKEE v. DUNN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Special assessment proceeding by the City of Kankakee. From a judgment overruling objections of John Dunn and others and confirming the assessment roll, the objectors appeal.
Reversed and remanded, with directions.Appeal from Kankakee County Court; John H. Gillen, Judge.
W. H. Dyer and John H. Beckers, both of Kankakee, for appellants.
Victor N. Cardosi, City Atty., Charles D. Henry, and Charles W. Kurtz, all of Kankakee, for appellee.
This is an appeal from a judgment of the county court of Kankakee county in a special assessment proceeding under the Local Improvement Act (Smith-Hurd Rev. St. 1929, c. 24, § 698 et seq.), overruling legal objections to a petition to construct a storm sewer in the city of Kankakee, and confirming the assessment roll filed. The original petition filed by the city of Kankakee on the 14th of August, A. D. 1928, prayed the confirmation of a special assessment for the construction of a storm sewer. With the petition was filed a certified copy of the ordinance, estimate and recommendation of the board of local improvements, a plat of the proposed sewer system, and the assessment roll. The resolution of the board of local improvements described the proposed improvement and estimated the cost thereof. The ordinance likewise described the improvement, and directed that the city attorney of the city of Kankakee file a petition in the name of the city of Kankakee in the county court of that county praying that steps be taken to levy a special assessment for the said improvement in accordance with the provisions of the ordinance and laws of the state of Illinois. Objections were filed setting out that the ordinance was void for the reason that, while in the description of the proposed improvement it showed that the sewer was to extend across certain private property owned by the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, it did not describe the private property to be taken for the improvement; that the ordinance was also invalid for the reason that it provides for a sewer to carry off storm and surface waters in a district lying in two separate and distinct watersheds; and that the assessment roll filed was void for the reason that the commissioners illegally and fraudulently omitted therefrom the property of the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, which would be greatly benefited by said improvement. Later the city, leave being granted, filed an amendment to the petition, setting out that it would be necessary to take certain private property of the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, describing the property necessary to be taken and praying that steps be taken to ascertain just compensation for private property to be taken or damaged for the improvement and to ascertain what property would be benefited and the amount of such benefits, in accordance with the provisions of the ordinance. On March 18, 1929, the city council of the city of Kankakee adopted a resolution stating that it had passed and adopted the ordinance providing for a local improvement and by which the city of Kankakee will acquire a right of way across certain private property and directing that the city attorney file a petition in the name of the city praying that steps be taken to ascertain just compensation to be made for the private property to be taken and to ascertain what property will be benefited by such improvement and the amount of such benefits, or to amend the petition already on file to comply with and accomplish such purpose. Appellants filed a motion to dismiss the amended petition on the ground that the ordinance providing for the local improvement made no provision for the condemnation of land and gave no description of such lands. A hearing was had on legal objections, and the court overruled the same, denied the motion to dismiss the petition, and entered judgment of confirmation, from which appellants have appealed to this court.
It does not appear that the question of the value of the property to be taken or damaged was tried.
A number of errors are assigned in this court, the first of which goes to the validity of the ordinance. The plat attached of the ordinance and made a part of the petition shows the proposed sewer is to extend over a strip of ground not dedicated or used as a street, but owned by the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. As we have seen, the original ordinance made no provision for condemning property, and contained no statement that the sewer proposed to be constructed passed over any privateproperty or that private property was to be taken or damaged for the improvement. The assessment roll filed by...
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...are Gray v. W. A. Black Co., 338 Ill. 488, 170 N. E. 713; City of Chicago v. Huleatt, 276 Ill. 466, 114 N. E. 1021; City of Kankakee v. Dunn, 337 Ill. 391, 169 N. E. 251; City of Springfield v. Gillespie, 335 Ill. 388, 167 N. E. The only divergence from the Illinois holdings in this respect......
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