Horn v. City of Chicago

• Decision Date: 20 September 1949
• Docket Number: No. 30880.,30880.
• Citation: 87 N.E.2d 642,403 Ill. 549
• Parties: HORN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

403 Ill. 549

87 N.E.2d 642

HORN et al.

v.CITY OF CHICAGO.

No. 30880.

Supreme Court of Illinois.

May 19, 1949.

Rehearing Denied Sept. 20, 1949.

Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

Action by Betty Stoddard Horn and another against the City of Chicago to recover damages arising out of the construction of a new viaduct in the City of Chicago. From a judgment dismissing the action, plaintiffs appeal.

Judgment affirmed.

Sladkey, Lanham, Olds & Swanstrom, of Chicago (Jerome J. Sladkey and George P. Novak, of Chicago, of counsel), for appellant.

Benjamin S. Adamowski, Corporation Counsel, Chicago (L. Louis Karton and Arthur Magid, of Chicago, of counsel), for appellee.

THOMPSON, Justice.

This suit was filed by plaintiffs, appellants here, in the circuit court of Cook County to recover damages arising out of the construction of the Wabash Avenue viaduct in the city of Chicago. The complaint, as amended, charged injury to plaintiffs' abutting property and it was contended that the construction of said improvement constituted the taking and damaging of their property without payment of just compensation, and without due process of law, contrary to the provisions of both Federal and State constitutions. Defendant filed a motion to dismiss and urged in bar of the action that it did not accrue to plaintiffs within the time limited by law to institute the proceedings, and the motion was supported by affidavit to that effect. The motion was allowed and the cause dismissed from which an appeal was taken to this court.

Appellants' property is located at the northeast corner of East Illinois Street and North Wabash Avenue, in Chicago, and has a frontage of 100 feet on Illinois Street on the south, 100 feet on Wabash Avenue on the west and 100 feet on an alley on the north. Illinois Street is the third street north of the bridge and the first street south of Grand Avenue, where the approach to the bridge begins. The damage to appellants' real estate, as claimed, was brought about by the construction of the north viaduct on approach to the bridge over the Chicago river at Wabash Avenue in the city of Chicago.

The amended complaint alleged, in substance, that appellants' property was improved with six two-story brick residences, fronting on Wabash Avenue and abutting on private property in the rear; that said buildings were built and adapted to the then established grades of the said streets and alleys; that prior to the construction of the Wabash Avenue bridge and viaduct there was convenient and easy access to appellants' property and that the same was indispensible to the use and occupancy thereof. The amended complaint also alleged that appellants owned the title, in fee, to the streets and alley adjoining their property to the center of the highway, subject only to an easement in the city of Chicago for surface highway purposes; that in building the Wabash Avenue bridge and the north approach thereto, the city changed the grade of the streets, sidewalks and alley adjacent to appellants' property and constructed a retaining wall along Illinois Street and Wabash Avenue, separating appellants' property from the sidewalk space adjoining their property; that such construction interfered with and destroyed appellants' easements of light and air, and of ingress and egress to and from the premises in question; and that appellants were thereby deprived of their property without just compensation.

The city filed a motion to dismiss on the ground that the action was barred by the Statute of Limitations. Affidavits in support of the motion were filed, stating that the construction of the bridge and viaduct was completed and the streets were opened to public traffic more than five years prior to the commencement of the present action. Appellants, in their objection filed to the motion to dismiss contended (1) that no Statute of Limitations can run against the cause of action here sued on, since the same arises under the constitutional provision that private property shall not be taken or damaged for public use without just compensation, and any statute restricting the time to file suit under this constitutional provision would be invalid; (2) that section 2 of the Eminent Domain Act, Ill.Rev.Stat. 1947, c. 47, s 2, providing that no private property shall be taken or damaged for public use until an attempt has been made by the body authorized to condemn, to agree upon damages, places the burden of ascertaining damages upon the condemner and no Statute of Limitations could run until this was done; (3) that depriving appellants of their easements of light, air, view, accessibility, etc., constituted the taking of property or the taking of a vested property right, and any Statute of Limitations taking away this property or property rights deprives appellants of their property without due process of law and just compensation, and violates section 2 of article II and section 13 of article II of the Illinois constitution, Smith-Hurd Stats., and section 1 of the fourteenth amendment to the Federal constitution; (4) that the city, not having complied with the constitutional and statutory provisions requiring it to initiate proceedings, is estopped to invoke any Statute of Limitations claimed to be applicable; (5) that if there is any limitation upon appellants in bringing their action, it would be only after the expiration of twenty years from the completion of the improvement under the principle and theory of adverse possession and by prescription; (6) that if any statute of limitations is applicable, then it is the ten-year statute provided for in section 17 of the Limitations Act, as the constitution is a writing which would bring the cause of action under that section.

The court's order in dismissing plaintiffs' suit on the city's motion is based upon findings that there had been no physical taking of any of appellants' tangible property for any public use, that the action was barred by the provisions of section 15 of the Limitations Act because not brought within five years after the completion of the improvement in question, and that the application of section 15 of the Limitations Act (Ill.Rev.Stat. 1947, chap. 83, par. 16,) does not violate the provisions of section 13 of article II of the State constitution, providing that private property shall not be taken or damaged for public use without the payment of just compensation, and does not deprive appellants of due process of law, as guaranteed by section 2 of article II of the State constitution and the first section of the fourteenth amendment to the Federal constitution.

The contentions which appellants make in this court are the same as those made in their objections to the motion to dismiss, and present the question whether appellants' asserted right to compensation for damages to their property is barred by the five-year Statute of Limitations.

It is established by the pleadings that appellants, as abutting owners, are seized of title and fee to the center of the street, that the city had legal authority to make the improvement in the street, that it was properly made in pursuance of such authority, and that it is a permanent structure, the existence of which is necessarily injurious to appellants' property. Appellants do not allege that there has been any negligence or unlawful acts on the part of the city in the construction of the improvement, or that as a result of its construction there has been any physical invasion of their tangible property adjacent to the street, but they allege an injury to such property from the destruction of its appurtenant easements of light and air, and of ingress and egress. They also allege an injury occasioned by the filling in of subsidewalk space, which injuries, they claim, constitute a taking of their property for public use.

The test applied by this court and also by the Federal court, in determining whether real estate has been taken for public use within the meaning of our constitution, is whether there has been an actual physical invasion of the tangible property. People ex rel. Pratt v. Rosenfield, 399 Ill. 247, 77 N.E.2d 697;Kane v. City of Chicago, 392 Ill. 172, 64 N.E.2d 506;People ex rel. Tyson v. Kelly, 379, Ill. 297, 40 N.E.2d 510;Cuneo v. City of Chicago, 379 Ill. 488, 41 N.E.2d 473;Barnard v. City of Chicago, 270 Ill. 27, 110 N.E. 412;Otis Elevator Co. v. City of Chicago, 263 Ill. 419, 105 N.E. 338, 52 L.R.A.,N.S., 192; Schroeder v. City of Joliet, 189 Ill. 48, 59 N.E. 550,52 L.R.A. 634;Northern Transportation Co. v. City of Chicago, 99 U.S. 635, 25 L.Ed. 336. As pointed out in these cases, even though there has been no attempt by the sovereign authority to appropriate and use the real estate for public purposes, nevertheless, if as a necessary result of the construction, maintenance or operation of a public improvement, the real estate is physically invaded by superinduced additions of water, earth, sand or other materials, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the constitution.

Before the adoption of our present constitution a landowner could have no relief for damages occasioned by the construction or maintenance of a public improvement in a proper manner under lawful authority, although his property was thereby rendered practically valueless, unless there had been an actual physical invasion of the land itself. Thus, a property owner was guaranteed compensation for any deprivation of res, but not of jus. This situation continued until 1870, when the framers of our present constitution added the provision that private property should not be damaged for public use without just compensation. It is under this last constitutional provision, and none other, that a landowner may claim compensation for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in...