Guarantee & Trust Co. v. City of Chicago

• Decision Date: 12 May 1896
• Citation: 162 Ill. 505,44 N.E. 832
• Court: Illinois Supreme Court
• Parties: GUARANTEE & TRUST CO. et al. v. CITY OF CHICAGO.

162 Ill. 505

44 N.E. 832

GUARANTEE & TRUST CO. et al.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from Cook county court; Calostin D. Meyers, Judge.

Action by the city of Chicago against the Guarantee & Trust Company and others for the confirmation of a special assessment. From a judgment in favor of plaintiff, defendants appeal. Reversed.Wilson, Moore & McIlvaine, W. J. Donlin, John A. May, and I. J. Geer, for appellants.

J. D. Adair, for appellee.

CARTWRIGHT, J.

This is an appeal from a judgment of confirmation, entered in the county court of Cook county, of a special assessment for the construction of a sewer 5,600 feet long, in 106th street, from the Calumet river east, to the Indiana state line. The estimated cost of the sewer was $34,948.69, and assessments aggregating about that sum were levied upon a district extending the length of the sewer, and a quarter of a mile north and half a mile south therefrom, covering a territory of 480 acres, as stated by appellee, and 600 acres, as claimed by appellants.A very large part of the property was objected for. The objections were heard by the court, and, after a trial by a jury, were overruled. The objection made on behalf of property not situated on 106th street in which the sewer was to be laid, both by formal objection filed and by motion to strike out from the assessment roll such property, was that, as to such lands and lots, no provision was made for connecting them with the sewer, and there had been no legislation by which it could be known that any such lands would ever be permitted to drain into the sewer. It was shown to the court that the proposed sewer would lie, in large part, above the natural surface of the ground, and that the catch basins and man holes, when constructed, would stand above the surface of the ground, varying in height from one to four feet; so that there could be no surface drainage from the district into the sewer. As the land now is, the surface drainage is good, and the sewer would operate as a dam to prevent surface drainage of the lands lying north of it. As there could be no surface drainage, the property not abutting upon the sewer could not be in any way benefited, unless, in the course of time, laterals should be built. It is true that the property may be benefited which is not directly reached by a sewer, provided the ordinance is of such a character as to bring an outlet for sewerage nearer to the property, with some provision permitting the property to use such outlet in the future. But no assessment can be valid based upon a prospect of a future connection with a sewer, unless a drainage district is created which will drain into it, or some provision is made which will eventually effect such connection. The privilege of using the sewer in such cases depends upon the will of a body not within the control of the property owners, which may be expressed against the privilege. This ordinance designated no territory to be drained, and made no provision necessary to effect drainage from the land for which this objection was made. Whether such property would ever be connected with the sewer rested in the discretion of the city council, which had not been exercised, and which might be exercised either one way or the other. Where property cannot be benefited except in case of subsequent work, for which no provision is made, it cannot be assessed for the improvement, and the objection should be sustained. Village of Hyde Park v. Carton, 132 Ill. 100, 23 N. E. 590;Hutt v. Chicago, 132 Ill. 352, 23 N. E. 1010;Edwards v. Chicago, 140 Ill. 440, 30 N. E. 350;Ice Co. v. Chicago, 147 Ill. 327, 35 N. E. 378.

It is claimed on the part of appellee that there is no proof in the record that the property so objected for did not abut upon the line of the proposed sewer in 106th street. This is a mistake. The evidence showed that the district extended a quarter of a mile north and half a mile south from that street. Some of the tracts of land were described in the assessment roll by government subdivisions, and there was no contradiction of the evidence that the greater part of the property did not abut upon that street, but was situated on other streets and avenues.

Objection was also made and motion entered to cancel and annul the assessment for the reason that the ordinance providing for the same was unreasonable,...