Kamper v. City of Chicago
| Decision Date | 18 May 1914 |
| Docket Number | 2094. |
| Parties | KAMPER v. CITY OF CHICAGO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas J. Sutherland, of Chicago, Ill., for appellant.
William Dillon, of Chicago, Ill., for appellee.
Before BAKER, SEAMAN, and MACK, Circuit Judges.
Appellant's bill, at appellee's motion, was dismissed on the ground that the facts alleged were not sufficient to entitle appellant to equitable relief.
In brief the allegations are these: Prior to 1897 one Mauland was the owner of two lots in Chicago, on which he had erected an apartment building. Without Mauland's knowledge or consent, without proceedings to assess the just compensation and without paying any compensation to Mauland, appellee in 1897 constructed a water tunnel across the lots, 70 feet below the surface. This tunnel is a part of appellee's system for taking water from Lake Michigan and supplying it for pay to the inhabitants. In 1907 Mauland conveyed the lots and improvements to Romano, who during his ownership had no knowledge of appellee's trespass. Romano conveyed the property in 1908 to appellant, who was ignorant of the trespass until one month before bringing this suit. By maintaining and using the tunnel appellee is committing a continuing trespass upon appellant's property. On account of weak and inferior construction the tunnel is liable to crumble to pieces at any time, and so is a constant menace to the safety of appellant's building. The location of the tunnel is such as to interfere with appellant's operations if he should attempt to erect a larger structure requiring deeper foundations. Appellant has annually paid to the public authorities taxes upon the property, including that part seized and held by appellee.
The prayer is for a mandatory injunction to compel appellee to remove the tunnel and restore the lots to their original condition.
Affirmance of the decree might be rested on the bill's failure to aver that Mauland, after the original entry without his knowledge or consent, remained in ignorance of the trespass and had not settled with appellee for the taking of his property; but nevertheless we will consider appellant's real contention.
Another preliminary matter requires some notice. Appellant charged that the construction of the tunnel was inferior and defective. But inasmuch as appellant carefully refrained from asking that appellee be required to put the tunnel in safe condition (which would be an affirmance of appellee's possession on condition of making the tunnel safe and paying just compensation if appellant should be entitled to it), we regard the allegation as immaterial for any purpose except to strengthen appellant's one demand that the tunnel be removed.
And the answer to that demand seems to us quite clear and simple. When a public or quasi public corporation, having the delegated power of eminent domain, without condemnation proceedings enters upon land (which the owner would be powerless to hold against appropriation for public use) and thereupon completes a public work and is using it in public service, the landowner will not be permitted, by ejectment or mandatory injunction, to retake possession and thus break in two a railroad or a water tunnel or other work which is...
To continue reading
Request your trial
-
City of Harrisonville, Mo v. Dickey Clay Mfg Co
...259, 13 S.Ct. 299, 37 L.Ed. 155; Winslow v. Baltimore & Ohio R.R. Co., 188 U.S. 646, 660, 23 S.Ct. 443, 47 L.Ed. 635; Kamper v. City of Chicago (C.C.A.) 215 F. 706, 708; Woodlawn Trust & Savings Bank v. Drainage District No. 2 (C.C.A.) 251 F. 568, Third. By the city it is contended that und......
-
Kipp v. Van Wagoner
...the interests of the public have become involved, will ordinarily be held to constitute laches and a good defense. Kamper v. Chicago, 7 Cir., 215 F. 706, 132 C.C.A. 84;Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 P. 1032,65 L.R.A. 940,Bravard v. Cincinnati H. & I. R. Co., 115 Ind. 1, ......
-
City of Dallas v. Crow
...relief. City of Dallas v. Megginson, Tex.Civ.App., 222 S.W.2d 349; City of Jasper v. Brown, Tex.Civ.App., 39 S.W.2d 112; Kamper v. City of Chicago, 7 Cir., 215 F. 706; McCullough v. City of Denver, C.C., 39 F. 307; Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677, 76 P.2d 681. We su......