Holmes v. Village of Hyde Park

• Decision Date: 12 May 1887
• Citation: 13 N.E. 540,121 Ill. 128
• Parties: HOLMES v. VILLAGE OF HYDE PARK.
• Court: Illinois Supreme Court

121 Ill. 128

13 N.E. 540

HOLMES

v.VILLAGE OF HYDE PARK.

Supreme Court of Illinois.

May 12, 1887.

Appeal from county court, Cook county.

J. S. Huey, for Rufus E. Holmes, appellant and defendant.

Henry V. Freeman, for appellee.

SCHOLFIELD, J.

The question here is whether the owner of property specially assessed for the purpose of grading and paying a street of an incorporated village can interpose the objection, on an application to the court to confirm the assessment, that the village has not acquired title to the soil to be graded and paved as a street. The question is, in effect, answered in the negative by Village of Hyde Park, v. Borden, 94 Ill. 26. The objection was there urged, as here, that the ordinance was void because it required the improvement to be made upon private property, and it was answered: ‘The statute does not require that the ordinance itself shall, when providing for an improvement, make any provision for acquiring the right to make the improvement upon the property of others. But it provides that, after the passage of an ordinance for an improvement, the making of which will require that private property be taken or damaged, then the city or village shall file a petition praying that the just compensation for such taking or damage shall be ascertained by a jury. And the eminent domain act, which is to be taken in connection with this statute, provides that such proceedings for the ascertainment of compensation shall be instituted only in case the compensation cannot be agreed upon by the parties interested, on in case the owner of the property is incapable of consenting. * * * We do not understand that because private property cannot be taken or damaged for public use without just compensation, that this compensation must be ascertained before any assessment can be made for an improvement which may require such taking or damaging.’ This assessment is not for private, but for public use; for the improvement of a street of the village for public travel; and so is no violation of section 13, art. 2, of our constitution, which provides that ‘private property shall not be taken or damaged for public use without just compensation.’ Whether the compensation shall be made to the owner of the soil for the land taken for the street before or after the assessment for its improvement cannot make that assessment either larger or smaller; and so whether title to the soil entered upon for the purposes of the street has been...