McCracken v. City of Joliet

• Citation: 271 Ill. 270,111 N.E. 131
• Decision Date: 02 February 1916
• Docket Number: No. 10227.,10227.
• Parties: McCRACKEN v. CITY OF JOLIET et al. SAME v. COWING et al.
• Court: Illinois Supreme Court

271 Ill. 270

111 N.E. 131

McCRACKEN

v.CITY OF JOLIET et al.

SAME

v.COWING et al.

No. 10227.

Supreme Court of Illinois.

Dec. 22, 1915.

Rehearing Denied Feb. 2, 1916.

Error to Circuit Court, Will County; Frank L. Hooper and Dorrance Dibell, Judges.

Bill by William S. McCracken to enjoin the City of Joliet and others from interfering with his construction of a building, and action by William S. McCracken against Arthur B. Cowing and another, his attorneys, to require delivery of certificate of evidence. Actions consolidated, and, to review the entire record of the consolidated cause after decrees and orders adverse to plaintiff, he brings error. Decrees affirmed.

Jones, Addington, Ames & Seibold, of Chicago (Keene H. Addington and Walter Hamilton, both of Chicago, of counsel), for plaintiff in error.

Cowing & King, of Joliet, pro se.

T. V. Gorey and John W. Downey, both of Joliet, for defendants in error city of Joliet and Lamb.

CARTER, J.

A bill was filed in the circuit court of Will county by plaintiff in error, William S. McCracken, against the city of Joliet and James R. Lamb, an adjoining property owner, to enjoin said city and said Lamb from interfering with the construction of a brick building by McCracken on the land which he claimed as part of his lot, but which the city authorities claimed to be an encroachment of about 3 1/2 feet on what always had been and should be reserved for sidewalk purposes as part of the street. After the pleadings were settled a hearing was had before the chancellor, which resulted in a decree being entered June 28, 1912, dismissing the bill for want of equity. From that decree an appeal was prayed to this court, but, as the certificate of evidence, though presented to the trial judge within the time allowed, could not, for reasons hereinafter stated, be signed and filed in time, the case was brought here on a short record. October 1, 1912, on motion of the then appellant, the appeal was dismissed in this court, and the case was thereafter redocketed in the circuit court of Will county February 11, 1915. Plaintiff in error on October 22, 1914, filed a separate suit in said circuit court, alleging in his petition the refusal of his former solicitors in the main suit to deliver the original certificate of evidence in that case and praying the court to require them to do so, in order that the suit might be brought to this court on a writ of error. The respondents in the second suit, plaintiff in error's former attorneys, Arthur B. Cowing and Samuel W. King, filed their joint answer, alleging that by agreement with plaintiff in error they were to take the original case to the Supreme Court, and were to be paid nothing if they lost the suit, and $150 if they won, and further alleging their wrongful discharge, and that they had a statutory and common-law lien on such certificate of evidence for their fees, to be determined upon a basis of quantum meruit. February 11, 1915, this second suit was consolidated with the first, and thereafter the chancellor entered a decree or order allowing respondents a lien on said certificate of evidence and finding their reasonable fees to be $100. Several months after the final order was entered in this matter plaintiff in error asked to have the order modified by granting permission to present for signature and to file a certificate of evidence as to the testimony heard on the question of attorneys' fees. This last motion was denied, and there is no certificate of evidence here as to the said testimony. By virtue of subsequent orders and the payment of the $100 to the attorneys the certificate of evidence in the original suit was filed as of September 24, 1912. This writ of error has been sued out to review the entire record as to the consolidated cause.

We will first take up the consider the question in the main suit as to the bill for an injunction to restrain the city and Lamb from interfering with the construction of the brick building by plaintiff in error. The lot in question, 44 feet wide, upon which said building was to be erected, is situated on the south side of Cass street, in the city of Joliet. Cass street runs east and west, and said lot is the third one west of the intersection of Cass street and Eastern avenue. Defendant in error Lamb owns a lot improved with a brick building immediately west of said lot. Adjoining plaintiff in error's lot on the east is one owned by Augustine, which is improved by a frame building. Next east of Augustine's property is a brick building owned and occupied by plaintiff in error. Plaintiff in error's lot in question has been vacant for many years. It was owned by Mary Dames from 1880 until purchased by plaintiff in error in November, 1909. For many years a billboard had stood across the front of this lot. In July, 1910, plaintiff in error, with helpers, knocked the billboard down and put up a fence where he claims his north line is, and started to build a brick wall which would be several feet north of the front of the buildings on that street in that locality. The city authorities, we understand from the record, moved this fence back and caused the arrest of the plaintiff in error. He later made another attempt to build on what he claimed to be his line, which the city prevented. The original bill herein was thereafter filed.

The principal question in this case is the proper location of the south line of Cass street. Plaintiff in error claims that this line is about 3 1/2 feet north of the buildings on either side of him. Defendants in error contend that the line of the adjoining buildings marks the approximate location of the said street line. They further contend that, even though the north line of said buildings is not the exact location of said street line as originally laid out, said original location cannot now be determined, as the evidence shows the original survey stakes cannot be found, and that on this record plaintiff in error is estopped by the public use of this disputed ground as far back as the line connecting the front of the adjoining buildings from claiming any land north of said line. The trial court found substantially as claimed by the defendants in error, finding the south line of Cass street in front of plaintiff in error's lot to conform to the north line of the Lamb building extended east. This line would intersect the projected west line of the Augustine building 2 inches north of the northwestern corner of said building.

During the time that Mary Dames owned this lot there was never any contention with reference to the north line of said lot. She built a sidewalk in front of her lot and replaced it twice. Under this sidewalk, for its support, she caused to be built two walls, about 18 inches thick and several feet apart. These walls are still under the sidewalk. From the evidence we should judge they were never intended to be at either extreme edge of the walk. They are about 6 feet high, bringing the sidewalk to grade, the lot being somewhat low at this point. The billboard was built on a line running from the northwest corner of the Augustine building to about a foot from the northeast corner of the Lamb building. Several witnesses testified that they crawled through between the Lamb building and the billboard to get down onto this lot. Plaintiff in error contends that they were able to do this because the west end of the...