Dunham v. the Vill. of Hyde Park.

• Decision Date: 30 September 1874
• Citation: 1874 WL 9256,75 Ill. 371
• Parties: JOHN H. DUNHAMv.THE VILLAGE OF HYDE PARK.
• Court: Illinois Supreme Court

75 Ill. 371

1874 WL 9256 (Ill.)

JOHN H. DUNHAM

v.THE VILLAGE OF HYDE PARK.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. GOUDY & CHANDLER, and Messrs. HAWES & LAWRENCE, for the appellant.

Messrs. LEAMING & THOMPSON, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery to enjoin the village of Hyde Park and its trustees from taking a strip of land 17 feet wide from complainant's land, for the purpose of widening 51st street. A preliminary injunction was allowed.

A demurrer to the bill was filed by the defendants, which was sustained, the injunction dissolved, and the bil dismissed. The complainant appealed from the decree. The bill alleges that the complainant was the owner of 40 acres of land situated in the village of Hyde Park, in Cook county; that he subdivided the land in 1869 into 149 lots, with streets, alleys and a park; that the south tier of lots in the subdivision, 49 in number, are laid out of a uniform depth of 145 feet, and of a uniform width of 25 feet, all fronting north on the park, the south line of the lots being 33 feet north of the center line of 51st street, which street forms the southern boundary of the lots.

That this park is dedicated as a private park, by the name of Madison Avenue Park, for the use of the owners of lots fronting on the same, and is to be used and enjoyed by such owners in common as a private park, and for no other purpose whatever, and it is so noted upon the plat. The bill avers that after the plat was recorded, complainant erected expensive dwelling houses upon eight of the lots, between 51st street and Madison Avenue Park, fronting on the park, and 20 feet from the front line; that these were sold, and agreements made that they should for ever remain 20 feet from the front, and all other houses thereafter built on said lots should front on Madison Avenue Park, and be placed 20 feet from the front line; that at the time of such subdivision and since, 51st street was, and has been, a public highway of the width of 66 feet. The bill then represents that on the 3d of February, 1873, an ordinance was passed by the president and board of trustees of the village of Hyde Park for the widening of 51st street to the width of 100 feet from Grove Parkway, so called, on the west, to Lake Michigan on the east, a distance of about two miles, the expenses and costs to be paid wholly by assessment; that such president, on September 6, 1873, in pursuance of the ordinance, filed, in the name of the village of Hyde Park, a petition in the Superior Court of Cook county for the condemnation of the south 17 feet of the said 49 lots for the purpose of such widening of 51st street; that the street is now wide enough for all purposes of travel or residence; that the proposed widening of it is not a public benefit or necessity; that it would reduce complainant's said lots in depth to 108 feet, and inflict a great injury and damage upon him; and charges that the defendants have instituted and are carrying on such proceeding for the sole purpose of enhancing the value of real estate in the village of Hyde Park, thereby enabling them, or their relatives and friends, to make a more advantageous sale of their property, and prays that the proceeding may be enjoined.

The question presented is as to the sufficiency of the bill, whether upon its face it shows facts entitling complainant to the relief sought.

The power to lay out and widen streets within the village of Hyde Park has been delegated by the legislature to the president and board of trustees of said village. Notwithstanding many of the allegations of the bill are directed to the point that the proposed widening of the street is not called for by any public necessity, appellant's counsel, in their argument, very properly, concede that the municipal authorities of Hyde Park are the exclusive judges of the propriety and necessity of widening the street in question, and that their decision is conclusive upon the courts. The only point made in support of the bill, and in objection to the condemnation proceeding is, that private property is sought to be taken for a private use, and not for public use. It is not claimed, on the other side, that this can be done. The difference is, whether the use is private and not public. Complainant insists there can be no question as to this, that it is foreclosed by the demurrer, and stands admitted that the property is sought to be taken for private use and not for public use; that the bill so alleges, and that the demurrer admits the allegations of the bill. The demurrer does admit all facts which are well pleaded.

The point, then, for determination is reduced to this, whether, by the showing of facts in the bill, it appears that the proposed widening of this street is merely for a private use, and not for public use. The allegation of the bill in this respect is as follows:

Your orator further represents and shows unto your honors, upon...