Harmon v. Village of Arthur

• Decision Date: 20 June 1923
• Docket Number: No. 15376.,15376.
• Citation: 140 N.E. 53,309 Ill. 95
• Parties: HARMON et al. v. VILLAGE OF ARTHUR.
• Court: Illinois Supreme Court

309 Ill. 95

140 N.E. 53

HARMON et al.

v.VILLAGE OF ARTHUR.

No. 15376.

Supreme Court of Illinois.

June 20, 1923.

Proceeding by the Village of Arthur for the construction of a storm sewer system and the assessment of property benefited. From an order overruling objections of the property owners, George Harmon and others appeal.

Reversed and remanded, with directions.

Appeal from Douglas County Court; D. H. Wamsley, Judge.

Joel T. Davis, of Tuscola, for appellants.

Marion Watson, of Arthur, for appellee.

CARTER, J.

This an appeal from the judgment of the county court of Douglas county, overruling the objections of property owners and confirming the report of the just missioners appointed to ascertain the just compensation to be made for property taken or damaged for the construction of a storm sewer system and outlet therefor and for the assessment of property benefited.

The proceeding was had under the Local Improvement Act enacted in 1897 (Hurd's Rev. St. 1921, c. 24), and included the condemnation of certain land necessary to be taken for the purpose of the improvement. The ordinance passed by the authorities of the village of Arthur provided for constructing certain sewers within the village and for building a sewer outside the village limits for an outlet within a short distance of a farm drainage district, wherein there had already been constructed a ditch and branch thereof for the purpose of draining many acres of farm land. The proceedings by the board of local improvements of the village provided for the construction of the sewers in the village and the outlet sewer, and also for deepening and widening the main ditch of the drainage district and a branch thereof for a distance of about four miles, for the payment of part of the cost of the deepening and widening of the ditch by the village, and for building or repairing certain bridges and culverts over and across the ditch; that an agreement for deepening and widening the drainage ditch and its branch was entered into by the commissioners of the drainage district and the village authorities, the former to decide as to the manner and extent of such cleaning and widening.

The ordinance and the agreement providedthat the drainage commissioners could not be compelled to clean out the main open ditch, unless they did so by contract with the village of Arthur, and that, when it became necessary to clean out or repair the new open ditch, before the work was done there must be a contract made between the drainage commissioners and the village authorities and that the cost of such cleaning out and widening should be divided between the drainage commissioners and the village authorities in a certain propertion. It was also provided that the drainage commissioners will not be required to let a contract for the cleaning, widening, and repairing of the drainage ditch until $5,317.42 has been deposited by the village authorities with the First National Bank of Arthur, with the understanding that said sum be held by the bank as trustee for the village and the drainage commissioners, and that as the work of improving the proposed ditch progresses, especially from the junction of the main ditch and the branch ditch downstream to the outlet of the main ditch, the bank will pay orders drawn by the drainage commissioners against said fund. It was also provided that, if the village does not deposit $5,317.42 with the First National Bank by August 1, 1923, the contract ‘shall come to an end and be null and void.’ It appears from the record before us that the whole cost of the local improvement to be made by the village was over $35,000, and that of this amount it was to pay the drainage commissioners for the deepening and widening of the drainage ditches various sums, amounting to approximately $6,500.

It was objected in the county court, and the objections are renewed in this court, that the assessment is invalid in providing, under the Local Improvement Act, for an improvement in which a part of the work must be done outside of the village and outside of the control of the village authorities, to be paid for by special assessment, and that the improvement is not a local improvement, as the Constitution and the statutes define such an improvement; that the provisions of the agreement between the drainage commissioners and the village authorities are not so definite and certain as to make them possible of enforcement, and particularly that the village authorities cannot enforce them in this proceeding.

The agreement between the drainage commissioners and the village authorities contains numerous provisions, which we will not attempt to set out in detail, in view of the conclusion we have reached as to the law concerning the questions involved. The general rule as to local improvements is that a municipality cannot levy an assessment for an improvement outside the city limits. Mason & Fuller on Special Assessments, 50, and authorities there cited. It has been more than once said by this court that under the Local Improvement Act property cannot be assessed more than it will be specially benefited; that the continuing test in special assessment proceedings, whether original or supplemental, is that the assessment shall not exceed the special benefit to the property assessed. Village of Winnetka v. Taylor, 301 Ill. 147, 133 N. E. 653;City of Nokomis v. Zepp, 246, Ill. 159, 92 N. E. 809.

We think it is manifest from the wording of the ordinance drafted by the village authorities for this improvement, in connection with the agreement entered into by the drainage commissioners and the village authorities, that at the present time it is practically impossible to ascertain with any reasonable certainty how much the property owners will be specially benefited by the improvement or how much the property owners will be compelled to pay for deepening and widening the ditches of the drainage district. The Local Improvement Act provides that there shall be an engineer's estimate, made before the improvement is undertaken, as to the cost of the proposed improvement, and we have held that the purpose of that estimate is to advise property owners of the probable cost of an improvement originated by the board of local improvements (City of Chicago v. Huleatt, 276 Ill. 466, 114 N. E. 1021); that it is not necessary to have this estimate absolutely accurate but only approximately so; that the estimate should be of such a nature as to give the...