Hunerberg v. Village of Hyde Park

• Decision Date: 31 October 1889
• Citation: 22 N.E. 486,130 Ill. 156
• Parties: HUNERBERG v. VILLAGE OF HYDE PARK.
• Court: Illinois Supreme Court

130 Ill. 156

22 N.E. 486

HUNERBERG

v.VILLAGE OF HYDE PARK.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from county court, Cook county; RICHARD PRENDERGAST, Judge.

Consider H. Willett, for appellant.

James R. Mann, for appellee.

BAKER, J.

The village of Hyde Park, appellee, passed an ordinance on the 4th of September, 1888, for the grading and paving of Champlain avenue from Forty-Second to Forty-Sixth streets, and the cost of the improvement was ascertained, in the mode prescribed by the statute, to be $14,446. A petition was then filed in the county court of Cook county for the purpose of having a special assessment made to pay the cost of such improvement. The commissioners appointed to assess the benefits assessed against the E. 1/2, lot 2, block 2, Salstonstall & Russell's subdivision of N. 1/2, S. E. 1/4, section 3; town 38 N., range 14 E. of third P. M., the sum of $366.52. The owner, Frederick W. Hunerberg, appellant, filed objections to the confirmation of the assessment roll, claiming that a portion of the contemplated improvement would be located upon his own private property, and that the ordinance providing for the improvement contemplated the use of the east 33 feet of his premises as the west one-half of the street to be improved. The matter of the objections of appellant to the assessment was tried before the court without a jury. At the trial the objector claimed to be the owner of said east 33 feet, and to be in possession of the same as his own private property; and the village claimed that at the place in question the street had been opened for many years by common-law dedication, and was used by the public as a street, and was in the possession of the village. The objector offered in evidence certain deeds and other testimony for the purpose of proving he was the owner of said 33 feet, but the court sustained objections to such proffered testimony, and exceptions were taken. No evidence was introduced to show that the premises were assessed more than they were benefited, or more than their proportionate share of the cost of the improvement. The court entered judgment overruling the objections and confirming the assessment. Thereupon, and after a motion for a new trial was made and overruled, the objector brought the case to this court by appeal.

The present case is, in legal principle, like those of Village of Hyde Park v. Borden, 94 Ill. 26, and Holmes v. Village of Hyde Park, 121 Ill. 128, 13 N. E. Rep. 540; and in its facts is on all fours with the latter case, although the circumstances of identity do not fully appear in the report of said case. It was in said last-mentioned case expressly held that the corporate authorities of cities and villages may levy special assessments for the improvement of a proposed street before acquiring the soil by condemnation or otherwise, and afterwards take the necessary steps to condemn, and have the compensation and...