Hartshorn v. Bierbom

• Court: Illinois Supreme Court
• Writing for the Court: STONE J.
• Citation: Hartshorn v. Bierbom, 312 Ill. 275, 143 N.E. 872 (Ill. 1924)
• Decision Date: 06 June 1924
• Docket Number: No. 15836.,15836.
• Parties: HARTSHORN v. BIERBOM, Com'r of Highways, et al.

312 Ill. 275

143 N.E. 872

HARTSHORN

v.BIERBOM, Com'r of Highways, et al.

No. 15836.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied June 6, 1924.

Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Petition for certiorari by Mary W. Hartshorn against Henry Bierbom, Commissioner of Highways, and others, to review proceedings vacating a road and laying out a new one. Writ quashed and petition dismissed, and she brings error.

Affirmed.

Woodward, Hibbs & Pool, and Butters, Clark & Butters, all of Ottawa, for plaintiff in error.

J. E. Coleman and W. J. Aplington, both of La Salle, and Duncan & O'Conor, of Ottawa (J. E. Malone, Jr., of La Salle, and A. J. O'Conor, of Ottawa, of counsel), for defendants in error.

STONE J.

Plaintiff in error sued out of this court a writ of error to review a judgment of the circuit court of La Salle county quashing a petition for certiorari filed in her name. The petition for certiorari questioned the legality of proceedings vacating a road and laying out a new one in the town of La Salle. It averred that on April 11, 1922, a petition was filed in the office of the town clerk of the town of La Salle praying for the vacation of what is known as the Fifth street road, commencing at a point 170 feet east of the center line of a bridge over the Little Vermilion river, that line being the boundary line between the city and town of La Salle, and extending easterly to the north and south highway on the east line of section 14. That petition prayed that a new road be laid out 66 feet in width, commencing at a point 170 feet east of the center line of the bridge, thence easterly and northeasterly by curves to the northeast corner of section 14, where the proposed road was to connect with the highway running north and south on the east boundary of section 14. The petition for certiorari then sets out that pursuant to the petition therein referred to, the commissioner of highways assumed to lay out a new road, but that the road was not laid out in accordance with the petition, for the reason that the description of the eastern terminus was not in accordance with that set forth in the petition for the road. It is also alleged that the proceedings before the commissioner were irregular and contrary to law; that proper notice was not given; that the petitioner owns land abutting on the road proposed to be vacated, and that the closing of the road will materially damage and depreciate the value of her land; that the petitioner was out of the county at the time of the proceedings before the commissioner and did not return until after time for appeal had elapsed and had no notice of the proceedings to abandon the road. Notice of the petition for certiorari was served on the commissioner of highways and the town clerk of the town of La Salle. On January 15, 1923, the city of La Salle and the Alpha Portland Cement Company, located east of the city, were granted leave to interplead and join in a motion theretofore filed by the commissionerof highways and town clerk to quash the writ. A hearing was had and evidence taken, at the conclusion of which the circuit court quashed the writ and dismissed the petition. Thereafter a motion was made, supported by affidavit, asking leave to furnish additional testimony in opposition to the motion to quash the writ. As a full hearing on the merits had been had, this must be construed as a motion for a new trial. The motion was overruled.

The errors assigned on the writ of error sued out are that the road known as the Fifth street road is a state-aid road and not under the jurisdiction of the commissioner of highways, but under the jurisdiction of the county board, and therefore the commissioner of highways had no authority to vacate the same, and that all proceedings therefor were void; also, that the proceedings were fatally defective for the reason that the description of the road to be laid out did not conform to the description in the petition therefor. Defendants in error reply: First, that plaintiff in error owns no property abutting on the Fifth street road and has not shown any damage other than that which would accrue to the general traveling public of that vicinity and has therefore no right to maintain this action in her own name; second, that the record contains no proof that the road is a state-aid road, but that, on the other hand, it is a part of the bond issue roads, and as such is under the jurisdiction of the state highway department; third, that there is no variance between the description of the road as laid out and that described in the petition therefor; and, fourth, that by reason of large expenditures of money which would be made necessary if these proceedings were quashed, occasioned by the unreasonable delay of plaintiff in error in applying for a writ of certiorari, the court was justified in quashing the writ.

The city of La Salle is located in La Salle township, in the westerly part of La Salle county, on the north side of the Illinois river. A few miles directly east is the city of Utica, and some miles further east, and slightly north, the city of Ottawa. The territory between these cities, especially that lying along the Illinois river, is somewhat broken by hills and ravines. On the east boundary of the city of La Salle, forming the boundary line thereof, is the Little Vermilion river. Crossing that river east and west is what is known as the Fifth street road. This road is the principal thoroughfare north of the Illinois river connecting La Salle with the cities east. The Little Vermilion river at this point is crossed by a low-arch stone bridge. The incline from the city to this bridge is very steep. This is likewise true of the road descending from the east to the bridge. In other words, this bridge is a low structure, slightly above flood stage of the river and in the bottom of a deep ravine, through which the river flows. This road, according to the testimony in the record, is narrow, and especially in the steeper places is difficult to keep in passable condition. Because of the difficulty of ingress to and egress from the city of La Salle over this particular road, and especially the steep incline to and from the bridge, the people of the city of La Salle had been for a number of years interested in laying out a new road and raising the bridge. This road extended east to the section line road, which extended north a mile and a half, and thence east to the city of Ottawa. Considerable agitation of this question was had through the chamber of commerce of the city of La Salle, and an attempt had been previously made to remedy this condition of the bridge and to relocate the Fifth street road so as to acquire a more satisfactory route into the city from the east. It appears from the record that the plaintiff in error had previously opposed this project, and while she says in her testimony that she did not have notice of the closing of the Fifth street road, she also testifies that she did know the bridge was closed and was being changed, and that in the spring she had overheard some one speaking about an intended attempt to close the road. It also appears that much publicity was given to the matter; public meetings being held, and notices thereof being published in the newspapers.

The record shows that for some 15 years a cement plant has been located in the town of La Salle east of the Little Vermilion river and south of the Fifth street road. This plant is now owned and operated by the Alpha Portland Cement Company. This company owns all the land on both sides of the Fifth street road proposed to be abandoned. It appears that the road and bridge committee of the chamber of commerce of the city of La Salle, by George A. Wilson, its chairman,...