Ginter-Wardein Co. v. City of Alton

• Decision Date: 20 December 1938
• Docket Number: No. 24636.,24636.
• Citation: Ginter-Wardein Co. v. City of Alton, 370 Ill. 101, 17 N.E.2d 976 (Ill. 1938)
• Parties: GINTER-WARDEIN CO. v. CITY OF ALTON et al.
• Court: Illinois Supreme Court

370 Ill. 101

17 N.E.2d 976

GINTER-WARDEIN CO.

v.CITY OF ALTON et al.

No. 24636.

Supreme Court of Illinois.

Oct. 21, 1938.

Rehearing Denied Dec. 20, 1938.

Appeal from Circuit Court, Madison County; Maurice V. Joyce, judge.

Suit by the Ginter-Wardein Company against the City of Alton and others to enjoin the obstruction of a public street pursuant to a contract-ordinance enacted by the city.From an adverse decree, plaintiff appeals.

Reversed and remanded, with directions.

ORR, JONES, and FARTHING, JJ., dissenting.

J. P. Streuber, of Alton, for appellant.

Frank W. Tunnell, Green, Verlie & Hoagland, and J. F. Schlafly, Jr., all of Alton (C. Dana Eastman, of Alton, of counsel), for appellees.

SHAW, Chief Justice.

This litigation tests the validity of a contract-ordinance of the city of Alton, which was sustained by the trial court.That court, in accordance with the statute, certified that the validity of a municipal ordinance was involved and that the public interest required the appeal from its decision to be prosecuted directly to this court, which has been done.To make the situation clear a brief summary of the ordinance and the existing circumstances will be necessary.

As to the circumstances, it appears that the Lewis and Clark bridge across the Mississippi river leaves the city of Alton in a southerly direction from Broadway, being carried on steel supports from that street over a declining terrain for a distance of several hundred feet, the rate of declivity being something in excess of twelve per cent, so that Front street, which roughly parallels Broadway and the river, and which is one block south of Broadway, is twenty-five to thirty feet lower than Broadway.The approach to the bridge at this point is nearly in the center of Langdon street and occupies the whole of that street, which is paved, except that along the east side of Langdon street there is room enough left for the passage of loaded trucks-i. e., a space having a width of approximately ten feet between the bridge structure and the curb-while on the west side of the approach there is a space of only six and eighteenths feet, which the evidence shows is insufficient to permit trucks to pass.

Appellant, the Ginter-Wardein Company, has a lumber yard on Front street and has always used, and finds it most convenient to use, Langdon street for access to Broadway, which appears to be an important street in the city of Alton.If Langdon street is obstructed at Broadway, trucks delivering merchandise from plaintiff's place of business and the customers coming to that place of business can still go to and from Broadway, but only by traveling an inconvenient and round-about way, this being particularly true as to traffic coming from the south across the bridge or from the north on Langdon street.

In 1935 and 1936 The Young Men's Christian Association of Alton acquired the property to the east of Langdon street between Front street and Broadway, obtaining the same through options taken in the name of a representative of the Standard Oil Company of Indiana, and made a contingent agreement with that company for the erection of a filling station on the corner of Broadway and Langdon.The contingency was that the city of Alton should pass and sustain the ordinance now in question and it has been duly passed.

The title of the ordinance is: ‘An ordinance granting unto the Young Men's Christian Association of Alton, Illinois, its legal representatives or assigns, the right to construct, build and maintain a concrete covered fill between its property on the east and the present east line of the bridge entrance on the west and extending from the south line of Broadway, Alton, Illinois, to a point approximately ninety feet south of said line.’Its preamble recites that the bridge entrance is a hazard which can be reduced by filling the space between the east side of the bridge and the west property line of the Young Men's Christian Association; that the Young Men's Christian Association has proposed to make this alteration at its own expense and that the city council is convinced that such an improvement will reduce the hazard of entrance to the bridge.Section 1 authorizes and licenses the Young Men's Christian Association to put in a concrete fill in Langdon street, flush with the floor of the bridge for a distance of ninety feet back from Broadway.Section 2 requires the Young Men's Christian Association to grant, by deed, a perpetual easement over ‘a sufficient portion of the northwest corner of the property owned by them, adjoining Langdon street and east Broadway, so that traffic can pass from the bridge onto east Broadway over said tract of land so burdened with said easement, reaching east Broadway at an angle of not less than forty-five degrees, and with the sufficient provision that the Young Men's Christian Association shall maintain at their own expense not only that portion of Langdon street upon which they construct the concrete and steel construction provided for in section 1 of this ordinance, but shall keep in good repair for the public's use, a concrete...