Illinois Cent. R. Co. v. City of Kankakee

• Decision Date: 19 January 1897
• Citation: 164 Ill. 608,45 N.E. 971
• Parties: ILLINOIS CENT. R. CO. v. CITY OF KANKAKEE.
• Court: Illinois Supreme Court

164 Ill. 608

45 N.E. 971

ILLINOIS CENT. R. CO.

v.CITY OF KANKAKEE.

Supreme Court of Illinois.

Jan. 19, 1897.

Appeal from Kankakee county court; John Small, Judge.

Petition by the city of Kankakee for the appointment of commissioners to assess benefits for a street improvement. From a judgment against the realty of the Illinois Central Railroad Company for $1,500, the amount assessed by the commissioners, the company appeals. Affirmed.W. R. Hunter, for appellant.

Paddock & Cooper, for appellee.

On December 18, 1895, appellee, the city of Kankakee, passed an ordinance providing for the improvement, by paving, curbing, etc., of that part of East avenue lying between Court street on the north and Hickory street on the south, to be paid for by a special assessment upon the realty specially benefited thereby, so far as the same could be legally assessed, and the balance by general taxation. The part of East avenue involved in this controversy adjoins and runs parallel with the right of way of the railroad of appellant the length of three blocks. At the north end of the proposed pavement East avenue is about 15 feet higher than the track of appellant, and falls rapidly towards the south, so that, one block south, at Merchant street (which does not extend across the tracks), both are about on a level. Continuing south, to the next cross street (Station street), the avenue and tracks are nearly on a level, but at Hickory, the third cross street south, the tracks are higher than the avenue. The station is located opposite Station street. Commissioners were appointed, who estimated the probable cost of the improvement at $11,048.60. The petition of appellee was filed in the county court, and commissioners were appointed to spread the assessment. The total sum thus to be raised was fixed at $9,100.60, and the right of way of appellant was assessed at $1,500. Upon the return of the assessment appellant filed objections, which were heard by the court, a jury being waived. Evidence was submitted, and the court found that appellant's realty was not assessed more than it would be benefited, and the objections were overruled. From a judgment against the realty of appellant for $1,500 the Illinois Central Railroad Company appeals to this court.

WILKIN, J. (after stating the facts).

On the trial below appellant submitted to the court 13 written propositions of law, embodying the law relating to special assessments, all of which the court held, except...