Gregsten v. City of Chicago

• Decision Date: 19 June 1893
• Citation: 145 Ill. 451,34 N.E. 426
• Parties: GREGSTEN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

145 Ill. 451

34 N.E. 426

GREGSTEN et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from appellate court, first district.

Bill by Samuel Gregsten and others against the city of Chicago. Defendant obtained a decree, which was affirmed by the appellate court. Complainants appeal. Reversed.Knight & Brown, for appellants.

John S. Miller and Condee & Rose, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

This was a bill by appellants, in the circuit court of Cook county, representing that, in 1870, appellant Gregsten was the owner of a leasehold interest in lot 16, block 142, School Section addition to Chicago, expiring on the 1st day of April, 1880; that there was on the 12th day of May, 1870, a building upon said lot, under the control of, and owned by, Gregsten; that said lot fronts on Dearborn street, in said city, and in its rear was a 15-foot alley, dedicated to the public; that under the act of the legislature of 1863, amendatory of the charter of said city, power and authority were given to the board of public works, of said city, to authorize the use of space underneath the surface of alleys, etc., in said city, upon such terms and conditions as said board might determine, and require the taking of bond from the occupant to pay damages, etc., that might accrue by reason of such occupancy; that on the 12th day of May, 1870, Gregsten applied to the board of public works of said city for a permit to occupy all the space underneath the alley in the rear of said premises; that in pursuance of such application said board of public works issued a permit, which is set out in the amended bill, and required said Gregsten to give a bond, in the penal sum of $10,000, to save and keep harmless, etc., the city, and to perform the covenants and conditions thereof. The permit, dated May 12, 1870, provides: ‘Permission and authority is hereby given by the board of public works of the city of Chicago to Samuel Gregsten, of said city, to excavate for and construct a vault under the alley running north and south through block 142,’ etc., ‘and in the rear of, and adjoining, lot 16 of said block, and maintain and use said vault in connection with the building erected or to be erected upon said lot 16,’ etc.; ‘this permit being subject to all restrictions, limitations, and conditions of a certain bond relative to said vault, of even date herewith, and executed by the said Samuel Gregsten, in favor of the city of Chicago, by order of the board of public works.’ A copy of the bond is attached to the bill, and made part thereof, the conditions whereof, so far as necessary to an understanding of the questions presented, are as follows: ‘And the said Samuel Gregsten has bargained, covenanted, and agreed to and with the said city of Chicago, and hereby, for himself, his heirs, executors, administators, and assigns, does bargain, covenant, and agree to and with the said city of Chicago, that they will indemnify and save harmless the said city of Chicago and its officers, each and every one of them, from any and all loss, damage, and expense whatever, for which it or they, or any of them, may become liable, or which may at any time be awarded or adjudged against said city or its officers by reason of, or in consequence of, said excavation or vault, or by reason of, or in consequence of, any act or thing whatever by said Samuel Gregsten, or any of his agents, servants, contractors, or workmen, done, permitted, or suffered to be done, in making, excavating, constructing, using, maintaining, opening, covering, closing, or doing any other act or thing in, upon, or about said vault, or by reason of, or in consequence of, the failure of said Samuel Gregsten, or any of his successors, representatives, or assigns, to keep and perform all of his undertakings and agreements herein written; that said Samuel Gregsten will cause said vault to be strongly and firmly covered, and in any manner which may be directed by said board of public works, and will forever keep it so covered, so as in no manner to interfere with the use of said alley, or any portion thereof, as a public highway, and so as to make the same safe for persons, carriages, teams, and all animals and vehicles, to pass and repass over and upon the same, upon the established grade, and will forever after keep that part of the said alley so covered and in good repair, and will grade, repair, and renew the same when and as often as ordered by the common council of said city, or by the board of public works, and will indemnily said city against any and all loss by reason of said alley, so covered, being out of repair; * * * that he will construct approaches of easy slope to those parts of the alley so filled or covered by the said S. Gregsten; that, in the management and use of said vault, he will be governed by, and will conform to, any ordinance which now exists, or which may hereafter be made by said common council, or any rules which are now, or which may be hereafter, adopted by the said board of public works, relative to similar vaults under alley: provided, always, however, that said Samuel Gregsten shall not be subject to any tax or assessment upon the same, as rent, beyond what shall be charged for similar vaults; that said vaults, and those parts of said alley so occupied by said vault and its walls, shall be forever free and open for the building or laying, using, repairing, and maintaining of all sewers, water pipes, and gas pipes ordered by said city, or by said board of public works, to be built or laid or used or repaired or maintained, so that such sewers and gas or water pipes shall be within said vault, above or below the floor, or in any part of the space occupied by said vault or its walls, as shall be didrected by said city, or by said board of public works; and that those parts of the said alley to be occupied by said vault and its walls shall be as free and open for the construction of, or laying or using or repairing or maintaining of, such sewers, gas, and water pipes and their fixtures and connections, as if the said vault and its walls had never been built.’ The condition of the bond also provides for the entry of the city, or any officer, person, or company on its behalf, for the purpose of constructing, repairing, etc., sewers, gas pipes, etc., at will. The bill alleges that said Gregsten proceeded at once under said permit, and caused the alley space in rear of said lot to be excavated, walled, and planked, at an expense of $2,000; that the fire of October of 1871 destroyed the building on the premises; that the same was immediately rebuilt, and the occupation of the alley space for the same purpose, and under the same condition, was continued, with the knowledge of the authorities of the city; that on the 8th day of May, 1880, said Gregsten leased said lot 16 from the city of Chicago for the term of 50 years, and that on the 15th day of June, 1888, he obtained another lease therefor from said city, extending said term to the 8th day of May, 1985; that Gregsten has occupied, and now occupies, the alley space excavated, with his boliers and other necessary apparatus used in conducting the hotel business carried on on said lot 16 and adjoining buildings; that he has no means of accommodating his building therewith, if he should be deprived of said alley. The bill then sets up in full an ordinance of the city passed April 17, 1885, the first section of which provides that every alley space or court now open, or hereafter to be opened, in that portion of the south division of the city, (giving boundaries which includes the alley in question,) whenever the same shall hereafter be ordered or permitted to be improved, either by order of the city council, or by permission of the commissioner of public works, granted to private individuals, as hereinafter provided, shall be paved with granite block pavement, and constructed under the direction and supervision of the department of public works, etc. The second section provides that whenever any person or persons shall desire to permanently improve such alley, etc., they shall prepare and deliver to the commissioner of public works, for his approval, plans and specifications showing the desired improvement, etc., and, if approved, authorizing a permit, under certain conditions. The third section provides that the commissioner of public works shall furnish the proper grades for all work done under this ordinance, and all improvements so made shall be done under the direction of said officer, and as he shall direct, and in no other manner, etc. The bill then alleges that by virtue of said ordinance the commissioner of public works has assumed to grant to one McVicker a permit to occupy one-half of such alley space, thereby intending to deprive complainants of the use and benefit of such alley space; and denies the authority of such officer to grant such permit, and alleges that the grant to said Gregsten, with the bond before mentioned, constituted, between Gregsten and the city of Chicago, a contract, irrevocable, except as therein provided; that Gregsten has kept said alley in repair continuously from May 17, 1870, at great expense; that he has performed and kept each and every of the covenants in said bond contained; that said permit granted the perpetual use of said alley space or vault until the public interests should demand the use of the same; that the public interests have not demanded, and do not demand, the use of said vault or space under the alley, and the common council of the city of Chicago has never directed the complainants to remove or fill up said vault, or any part thereof. The bill then alleges that the commissioner of public works, August 4, 1890, served upon complainants a notice to vacate said excavation or vault, and to remove all property therefrom; that this was done in order that the said McVicker might use,...