Lamb v. City Of Chicago

• Decision Date: 20 December 1905
• Citation: 76 N.E. 343,219 Ill. 229
• Parties: LAMB v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

219 Ill. 229

76 N.E. 343

LAMB

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Cook County Court; W. M. Pond, Judge.

Assessment proceedings by the city of Chicago against James D. Lamb, trustee, etc. From a judgment confirming the assessment, Lamb appeals. Affirmed.

Rehearing denied February 8, 1906.

Thomas McClelland, for appellant.

Robert Redfield and Frank Johnston, Jr. (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

This is an appeal from a judgment of the county court of Cook county rendered January 20, 1905, confirming an assessment against the property of objectors, levied to defray the cost of curbing, grading, and paving with macadam, and a combined curb and gutter, Millard avenue from Ogden avenue to West Thirtieth street in Chicago. Ogden avenue intersects Millard avenue at Twenty-First street. The appellant, as trustee for Margaret. A. Bonney, holds the fee to 17 1/2 lots on Millard avenue, abutting upon the line of the improvement here in question, some of them between West Twenty-Third and West Twenty-Fourth streets, some of them between West Twenty-Fourth and West Twenty-Fifth streets, and some between West Twenty-Seventh and West Twenty-Eighth streets. Millard avenue from Ogden avenue to West Twenty-Eighth street was improved from 11 to 14 years prior to the commencement of this proceeding with cedar blocks and Lemont limestone curbstones. Millard avenue from West Twenty-Eighth street to West Thirtieth street had never been graded, curbed, or paved. On June 27, 1904, the engineer for the board of local improvements presented his estimate for the cost of curbing, grading, and paving Millard avenue from Ogden avenue to West Thirtieth street at $36,000, of which $7,950 was for a granite, concrete, combined curb and gutter on cinders, 10,600 lineal feet, at 75 cents a lineal foot. On August 4, 1904, the city filed its petition in the county court, and on August 12, 1904, an assessment roll was filed, in which the 17 1/2 lots of appellant were specially assessed at $1,722.95, to which appellant filed objections on September 2, 1904. On October 20, 1904, at the October term of the county court, the objections were sustained, and the assessment against the lots was reduced 25 per cent., or, in the aggregate, $430.74.

MAGRUDER, J. (after stating the facts).

First. The main objection urged by the appellant for a reversal of the judgment is that the improvement was unreasonable, oppressive, and unjust, and that therefore the ordinance was void upon the alleged ground that it provided for the construction of a combined curb and gutter when the curb on the street was in good condition. It is not denied that Millard avenue from Ogden avenue to West Thirtieth street had been curbed, graded, and paved with cedar blocks and limestone curbstones 11 years or more before the proceedings for the present improvement were inaugurated. It is not denied that the payment of the main part of the street is decayed and worn out, so that a new pavement is necessary. The only ground upon which the ordinance is attacked as unreasonable is that it provides for the construction, in connection with the new macadam pavement to be put down, of a combined curb and gutter. The contention of the appellant is that the curbstones already in the street are in good condition, and that therefore it is unnecessary to construct a combined curb and gutter. Whether or not the old curbstones are in a sufficiently good condition to justify their retention without the construction of a combined curb and gutter is a question of fact, as to which the testimony is conflicting. Witnesses testifying for the appellants stated that the old Lemont limestone curbstones were in good condition, but admitted that some of the stones were cracked, broken, or split, and chipped at the corners, and that some of them, having been down a number of years, were out of alignment. One witness said that he counted 11 stones which were worthless and broken. The evidence shows that the old curbstones were set in the ground, leaving from six inches to a foot above the surface, and that the witnesses of appellant only made an examination of these curbstones so far as they projected above the surface of the ground, but did not make an examination of those parts of the stones which were under the ground. There is testimony to the effect that a correct examination cannot be made of the stones below the surface unless they are taken up. On the other hand, the testimony introduced by the appellee showed that this old curbing along the line of the street proposed to be improved had settled and sunk in different places, and that it had been laid in 1891, and was crooked and out of alignment. One of the witnesses introduced by the city stated that, if 50 per cent. of the old curbing was taken out and 50 per cent. of new curbing put in, it would cost about the same as to put in the proposed combination curb and gutter.

The question whether or not the ordinance was reasonable or unreasonable in requiring a combined curb and gutter was a question for the decision of the court, and we are unable to say, in view of the evidence thus introduced, that the court did not decide correctly in holding that it was not an unreasonable requirement to have the old curbstones taken up and the new combined curb and gutter put in. Hawes v. City of Chicago, 158 Ill. 653, 42 N. E. 373,30 L. R. A. 225. ‘The rule is that it requires a clear and strong case to justify a court in annulling the action of a municipal corporation acting within the apparent scope of its authority.’ Hawes v. City of Chicago, supra. In Clark v. City of Chicago, 214 Ill. 318, 73 N. E. 358, we said (page 320 of 214 Ill.,page 359 of 73 N. E.): ‘The question of the necessary of a local improvement is by law committed to the city council, and the courts have no right to interfere to prevent the construction of a local improvement, unless the ordinance is so unreasonable as to render it void. Walker v. City of Chicago, 202 Ill. 531, 67 N. E. 369.’ Some of the testimony tends to show that the old curbstones were laid in 1893, but other witnesses testified that they were laid in 1891. Where curbstones have been laid for some 13 or 14 years, and have in many places become cracked, seamed, and out of alignment, it cannot be said that an improvement which requires the tearing up of such curbstones, and the putting down of a combined curb and gutter in their stead, is so unjust, unreasonable, and oppressive as to make the ordinance providing for such combined curb and gutter void. It is the peculiar province of the city...