Mortell v. Clark

• Decision Date: 16 February 1916
• Docket Number: No. 10515.,10515.
• Citation: 272 Ill. 201,111 N.E. 993
• Parties: MORTELL v. CLARK et al.
• Court: Illinois Supreme Court

272 Ill. 201

111 N.E. 993

MORTELL

v.CLARK et al.

No. 10515.

Supreme Court of Illinois.

Feb. 16, 1916.

Appeal from Circuit Court, Cook County; Oscar E. Heard, Judge.

Bill by John J. Mortell against Wallace G. Clark and others. From a decree dismissing the bill, complainant appeals. Affirmed.McEwen, Weissenbach & Shrimski, of Chicago, for appellant.

Edmund D. Adcock and Ross C. Hall, both of Chicago (Leo Spitz and E. M. Sinnott, both of Chicago, of counsel), for appellees.

CARTER, J.

Appellant, as a taxpayer, filed a bill in the circuit court of Cook county to enjoin appellees, as trustees of the Sanitary District of Chicago, from constructing a sewer about ten miles in length in what is known as the Calumet district, in the southern part of Chicago, and from paying for or doing any act in carrying out the contract for the construction of the same, as well as from exercising any of the functions of said board of trustees in any of the territory added to said sanitary district under the act of 1903, entitled ‘An act in relation to the Sanitary District of Chicago,’ etc., in force July 1, 1903 (Laws of 1903, p. 113). On a hearing the trial court dismissed the bill for want of equity, and this appeal followed.

The prayer of the bill is that said act of 1903 be held unconstitutional, and that the proposed sewer described in said bill be held to be a local improvement, which the sanitary district is without power and authority to construct. Appellees argue that the improvement in question is an intercepting sewer not local in its nature, and is being constructed as an ‘adjunct’ to the channels of said sanitary district. The allegations of the bill and answer, by stipulation, under certain conditions are to be considered part of the evidence.

Comparatively little testimony was taken on the trial of the case. It is somewhat difficult, in the condition of the record, to get an accurate understanding of all the facts discussed in the briefs and involved in this hearing. An auxiliary drainage channel or adjunct to the main channel of the sanitary district is in process of construction, and is to extend from said main channel at about the Sag Bridge easterly along the Sag Valley to a point east of Blue Island until it connects with the Little Calumet river near its intersection with Stony creek. The plan is to build this proposed sewer to extend south and west from the intersectionof Baltimore avenue and the north line of Ninety-Fifth street to a point a little west of the Sag channel's intersection with the Calumet river and connecting with controlling and pumping works about a mile east of Blue Island. The sewage and contents of said sewer are to be transferred into the Sag channel by means of these controlling and pumping works. The following plat shows the relative location of some of the more important features of the resion in question, including the present city sewers and the proposed sanitary district intercepting sewers:

Image 1 (4.66" X 3.53") Available for Offline PrintThe following plat shows the sanitary district channels, adjuncts, intercepting sewers, and conduits now in operation, and the proposed channels, adjuncts, and intercepting sewers her in question:

Image 2 (4.3" X 5.5") Available for Offline Print

This proposed sewer is 16 feet in diameter at the controlling works and is graduated to a smaller size, until at its northerly and easterly end it is 10 1/2 feet in diameter. The territory through which this sewer is to extend is known as the Calumet region in Illinois. Most of it is flat, low land, and land of the same description extends across the state line into Indiana a distance of approximately 15 or 20 miles. The portion in Indiana using Lake Michigan as an outlet for sewage contains approximately 50,000 people, and the population of the so-called Calumet region, according to the last federal census, is a little over 134,000. The Calumet river has two branches, both rising in Indiana, one called the Grand and the other the Little Calumet; the latter being the larger stream of the two. Both of these branches flow to the west from Indiana, and after crossing the Illinois boundary flow to the west and north and then turn and flow to the east and north until they join as the Calumet river proper, which runs into Lake Michigan at South Chicago. The Calumet river, from Lake Michigan to the fork, has been improved to a depth of about 20 or 21 feet below city datum or lake level. From this point up to where the controlling works are to be located on the Little Calumet that river is from 6 to 12 feet deep. The Calumet river varies in width from its mouth to the proposed controlling works from about 150 to 300 feet. In low water it is a sluggish stream. The proposed sewer is to take the sewage from all the city sewers that run into the Calumet river, the Little Calumet river, or Lake Calumet and carry said sewage to the controlling works. The principal city sewers thus intercepted are about 20 in number, varying in size from 3 1/2 feet in diameter to 10 1/2. Four of them are located east of the Calumet river, the others west of the Calumet and Little Calumet rivers and Lake Calumet. Several sewers, especially those that run into Lake Calumet, simply carry storm water, and are called storm-water sewers.

Counsel for appellant argue that the evidence shows that a large part of this district, especially around Lake Calumet, is vacant or sparsely settled territory, which will be greatly benefited by this proposed improvement without being compelled to pay a special assessment therefor, as it would be required to do if the improvement were made under the Local Improvement Act by the city of Chicago. They further contend that this region which the proposed sewer crosses has an adequate sewer system, with main trunk sewers covering the entire territory around Lake Michigan, Halsted street, and Indiana avenue, which is fully adequate for the present population and conditions, and that under plans prepared by engineers for the city within recent years there could be easily constructed trunk sewers having an outlet into the Calumet rivers to take care of the sewage and storm drainage for the vacant and unoccupied property in this region not now having adequate drainage and sewerage facilities. Counsel for appellees argue that the evidence shows that the population in that district is now approximately 150,000 people; that two of the cribs for the water supply of the city of Chicago lie approximately 2 miles off shore, within 3 or 3 1/2 miles of the mouth of the Calumet river; that the sewage emptying into the Calumet river and branches and Lake Calumet passes through the Calumet river into Lake Michigan, thus polluting the water supply of that part of the city of Chicago and thereby endangering the health of the people of the sanitary district; that the intakes at said cribs provide a water supply for a large portion of the population of the city of Chicago-upwards of 800,000 people-and the water mains supplying the rest of the city are connected with the mains supplied from these cribs; and that, unless the Calumet sewer is constructed to divert the sewage from Lake Michigan to the Calumet-Sag channel, the sewage discharged into the Calumet rivers will during a portion of each year be carried into Lake Michigan, polluting the water supply of a large portion of the inhabitants of the sanitary district.

We think the evidence shows, without contradiction, that the proposed sewer, when constructed and in operation, will intercept all the various city sewers and sewer systems now maintained by the city of Chicago in that region and divert the flow of those sewers from Lake Calumet, the Calumet rivers, and Lake Michigan into the sanitary district Sag channel by means of the pumping and controlling works. There is nothing in the allegations of the pleadings, or as otherwise presented in this record, that tends to show that this proposed sewer is to be used as a local sewer providing for house drainage; but the evidence all tends to show that when it is constructed it will cut across the sewers now maintained by the city of Chicago, connecting with them at certain points, so that the sewage now flowing through them will flow through this proposed sewer into the Calumet-Sag channel and not out through the Calumet rivers into Lake Michigan.

Many facts are found in the record with reference to the cost and extent of the work of the various channels and adjuncts of the sanitary district and of the intercepting sewers and pumping works built by the city of Chicago, with or without the financial assistance of the sanitary district. We do not deem it necessary to set out in detail all the facts or all the items of expense, amounting to many millions of dollars, and all a part of a common plan or purpose to divert the sewage of the city of Chicago and vicinity from Lake Michigan into the channels of the sanitary district, thus preventing the contamination of the water supply of said city and suburbs, which obtain water from Lake Michigan. It appears that the construction of the channels of the sanitary district may also result in creating a waterway from Lake Michigan which will ultimately extend to the Illinois and Mississippi rivers. The fact that a navigable waterway, however, will be created by the digging of the main channel of the sanitary district, is a mere incident and not one of the purposes for which the sanitary district was created. Beidler v. Sanitary District, 211 Ill. 628, 71 N. E. 1118,67 L. R. A. 820. We will have occasion to refer hereinafter to certain facts that have not been set out.

[1] One of the principal points urged by counsel for appellant is that, when this sewer in completed, it will be merely a local improvement, and not properly an adjunct of the sanitary district. The original Sanitary District Act, as well as the act of 1903 under which the Calumet district was made a part of...