Hemingway v. the City of Chicago.

• Decision Date: 30 September 1871
• Citation: Hemingway v. the City of Chicago., 60 Ill. 324, 1871 WL 8145 (Ill. 1871)
• Parties: MARY HEMINGWAY et al.v.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

60 Ill. 324

1871 WL 8145 (Ill.)

MARY HEMINGWAY et al.

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. KING, SCOTT & PAYSON, for the appellants.

Mr. M. F. TULEY, CorporationCounsel, for the appellee.

Mr. JUSTICE MCALLISTERdelivered the opinion of the Court:

This was an application made by the collector of the city of Chicago, at the March term, 1871, of the Superior Court of Cook county, for judgment on a special assessment warrant, in a proceeding for opening an alley 16 feet wide running north and south through block 16, Johnston, Roberts & Storr's addition, condemning therefor the east 4 feet of lot 10, all of lot 11 and the east 16 feet of lot 12, all in said block 16.

Objections to the application were filed by appellants, which were overruled by the court, judgment given for appellee, and the case brought to this court by appeal.The following points are relied upon for reversal:

First.That the city collector was not authorized to apply for judgment.

Second.The land appropriated for opening the alley had all been previously dedicated by the owners for the purpose of a public alley.

Third.The notices required to be given by the commissioners did not properly describe the location of the alley, and were calculated to mislead appellants, who were property owners in the adjoining block 13.

We will dispose of these points in the inverse order in which they are stated.

We think the notices were sufficient.They described the location of the alley and the land to be taken in the precise language of the ordinance, giving the numbers of the lots in block 16, and the definite portions thereof to be taken for the proposed alley.All the description required by sec. 6, chap. 7, of charter, (Gary's Laws, 62-3,) is, that the commissioners shall specify in the notice what such assessment is to be for, “and shall describe the land to be condemned as near as may be done by general description.”

The second point involves the question of dedication, which is claimed to have been effected in two different modes: one, an act in pais, respecting the north half of the alley; the other, by deed, relating to the south half.

Flentye, one of the appellants, testified that one half of the alley in question had been in use from ten to thirteen years, by everybody, and the other half four or five years; that he dedicated the north half, next to Wendall street, himself, he having bought the land and paid for it.He made it 12 feet wide.

On cross-examination, he said that, by dedicating, he meant that he made it a private alley; in fact it is a private alley, but they have made it a public alley.Somebody drove into his barn and broke down a pillar.He tried to fence it up, but they broke the fence down and told him it was a public alley.This was two to four years ago.His land is the north 37 feet of lot 2 and the whole of lot 3, block 13.Hemingway's is next south.He did not buy this alley as a private alley.He bought it as a lot.It was made a public alley, though witness bought it as a private alley.He made an alley in the first instance, and it has been broken into and used as a public alley, without let or hindrance.

Scranton, another...