Illinois Nat. Bank & Trust Co. of Rockford v. City of Rockford

• Decision Date: 29 September 1949
• Docket Number: Gen. No. 10348.
• Citation: 338 Ill.App. 532,88 N.E.2d 95
• Court: United States Appellate Court of Illinois
• Parties: ILLINOIS NAT. BANK & TRUST CO. OF ROCKFORD v. CITY OF ROCKFORD.

338 Ill.App. 532

88 N.E.2d 95

ILLINOIS NAT. BANK & TRUST CO. OF ROCKFORD

v.CITY OF ROCKFORD.

Gen. No. 10348.

Appellate Court of Illinois, Second District.

Sept. 29, 1949.

The Illinois National Bank & Trust Company of Rockford, trustee, sued the City of Rockford to recover damages resulting from a change of grade on a street which rendered the alley on which plaintiff's property abutted impassable to vehicular travel.

The Circuit Court of Winnebago County, William R. Dusher, J., rendered judgment for the plaintiff, and defendant appealed.

The Appellate Court, Bristow, J., reversed the judgment holding that plaintiff's cause of action was barred by the five year statute of limitations relating to recovery of damages for injury done to realty.Charles S. Thomas, Rockford, for appellant.

Guyer & Smith, Rockford, for appellee.

BRISTOW, Justice.

This appeal comes here from the Circuit Court of Winnebago County, wherein a judgment was entered for appellee in the sum of $3,500 as a result of a trial without a jury.

The complaint filed herein alleges that the plaintiff owns a vacant lot on a public alley extending from Wyman Street in Rockford, Illinois eastward to the Rock River. The lot extends southward from the south border of this alley 66 feet and is 43.5 feet in width. The west line of the lot is 98 feet east of the east side of Wyman Street and 135 feet west of the west bank of Rock River. The east end of the alley is the west bank of the Rock River and there is no means of ingress or egress into the alley from the east. The only means of ingress and egress to the lot is by the way of the alley and the only means of entering the alley is by way of Wyman Street.

It is also alleged in the complaint that the lot is bounded on the south by a vacant lot owned by the City extending to Elm Street, that the lot to the south is leased as a parking lot and the lessees refuse access to the plaintiff from Elm Street; that in 1930 the city raised the grade of and paved Wyman Street so that the alley was approximately five feet below the grade of the street rendering it useless and unavailable for public travel; that a request was made by plaintiff and others to the City in 1946 to open and improve the alley to provide access, which request was ignored; that a building was constructed on the alley by the Central Illinois Electric and Gas Co. which further obstructed this alley way; that the city wrongfully permitted the alley to be and remain obstructed and inaccessible to the plaintiff and that plaintiff has been wholly prevented from using the lot for any purpose and the plaintiff seeks damages.

The complaint also initiated a separate equity action seeking an injunction against the city permitting the alley to remain unusable for public travel by reason of any drop off, declivity or obstruction in the alley. This separate equity action count was dismissed.

The defendant filed a motion to strike the complaint and dismiss the suit on the grounds that the suit was not filed within five years and hence was barred by the five year Statute of Limitations. This motion was denied, whereupon the defendant filed an answer denying some of the allegations, setting up that pedestrian travel to and in the alley has not been blocked since 1930 and again pleaded the five year Statute of Limitations, (Section 15) ch. 83, par. 16, Ill.Rev.Stat.1947.

The record discloses that on August 3, 1896 the defendant passed an ordinance reciting that the alley in question 10 feet in width had been used as a public alley and resolved that it had been a public alley and ‘that said alley be kept free and clear from encroachments and obstructions which will in any manner militate against its use as a public alley.’

The record also indicates that the plaintiff acquired the lot by deeds from various heirs of the original owner all of which were recorded August 16, 1944, and that the alley was at grade with Wyman Street until 1930 but that when Wyman Street was opened and paved there was a drop off of 55 inches and the alley could not thereafter be used for vehicular traffic, although there were stairs for pedestrian usage.

Mr. Olson, who was beneficiary of the trust of which the plaintiff was trustee, testified to the facts alleged in the complaint. He stated that he was in the parking business; that there was no access to his property for vehicular traffic; that the lot to the south of it was owned by the City and leased but the lessee would not let him use the property for ingress and egress to the lot. In September, 1946 he and others petitioned the City Council to open the alley, but with no success.

He further testified that he could have rented the property for 10 individual car stalls at $6 per month from August 16, 1944 until November 1, 1947 and thereafter at $10 per stall. The Court basing its award on this testimony awarded judgment for $3,410.

The City offered in evidence the special assessment proceedings for opening and widening Wyman Street but they were excluded by the Court. The City also introduced the tax and special assessment proceedings showing that the property in question was sold for $1,500. Mr. Olson testified that the property cost him about $2,500.

The defendant seeks to reverse the judgment on the ground that the plaintiff's action is barred by the Statute of Limitations; that plaintiff has no cause of action because plaintiff acquired the property subsequent to the improvement of Wyman Street in 1930; that the excluded special assessment proceedings determined the damage to the land acquired by the plaintiff and are final and conclusive and that the measure of damages adopted by the trial court is erroneous.

The plaintiff's theory is that the City of Rockford owes the duty to keep the alley in question in a reasonably safe usable condition free of obstructions; that the 55 inch declivity existing at the west end of the alley constitutes an obstruction rendering vehicular traffic to and from plaintiff's premises impossible and that the continued failure of the defendant City to repair, open or maintain the alley for vehicular traffic wrongfully deprives the plaintiff of the use and enjoyment of his premises. Plaintiff claims this is in the nature of a common or public nuisance and that plaintiff is especially damaged because he has no other means of ingress or egress to his premises.

Giving attention to the paramount and controlling question, namely, is this action barred by the Statute of Limitations? First we will advert to the case of Monarch Refrigerating Co. of Chicago v. City of Chicago, 328 Ill.App. 546, 66 N.E.2d 692, where the plaintiff was engaged in the cold storage warehouse business. The complaint alleged among other things that the construction of the Wabash Avenue bridge and viaduct had interfered with the free and open access plaintiff had to other sections of the city; that the change in grade deprived plaintiff of the beneficial use of its property and that the construction of the improvement interfered with the ingress and egress from and to the premises. There was also a count that the damage was caused by negligence in construction of the viaduct. The City filed a motion to dismiss on the ground the action was barred by the five year Statute of Limitations. The Court held that the Statute of Limitations ran from April 29, 1931 and 328 Ill.App. at page 556, 66 N.E.2d at page 697 said, ‘Plaintiff could have brought its action on April 29, 1931. At that time the damage to plaintiff's property, was evident and ascertainable. The grades of the streets had been changed and the street, viaduct and approaches were paved and open to traffic. We are satisfied that plaintiff's action was barred by the five year limitation and that the court was right in sustaining defendant's motion and entering judgment against plaintiff.’

Schlosser v. Sanitary District of Chicago, 299 Ill. 77, at pages 82-83, 132 N.E. 291, at page 293, was a suit for damages for flooding property on the DesPlaines River by lowering the dam at Lockport, the court said: ‘The drainage canal is a permanent structure, whose use and operation in the manner authorized by law were necessarily injurious to the appellee's land. The declaration did not complain of the manner of construction, operation, or use of the canal or the works connected with it, or of any negligence of the appellant, but alleged a permanent injury to the appellee's land, caused by the existence, operation, and use of the canal in the manner authorized by law. For such injury the person injured must recover all damages which he has sustained or will sustain in the future from the operation of the canal in the manner and to the amount then authorized by law in a single suit, and that suit must be brought within 5 years after the completion of the work and putting it in operation. Suehr v. Sanitary District, 242 Ill. 496, 90 N. E. 197;Vette v. Sanitary District, 260 Ill. 432, 103 N.E. 241;Shaw v. Sanitary District, 267 Ill. 216, 108 N.E. 59;Wheeler v. Sanitary District, 270 Ill. 461, 110 N.E. 605.

These two cases are followed by Horner v. Winnebago County, 332 Ill.App. 217, 74 N.E.2d 728, an action for trespass began in 1945 for damages caused...