The City of Bloomington v. Brokaw & Gregory.

Decision Date31 January 1875
Citation77 Ill. 194,1875 WL 8287
CourtIllinois Supreme Court
PartiesTHE CITY OF BLOOMINGTONv.BROKAW & GREGORY.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action of assumpsit, by Brokaw & Gregory, surviving partners of the firm of Brokaw, Ellsworth & Co., against the city of Bloomington, to recover the amount of an assessment of damages. The opinion states the material facts.

Mr. IRA J. BLOOMFIELD, for the appellant.

Messrs. ROWELL & HAMILTON, for the appellees.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is conceded, and properly so, that the city had the power to change the grade of its streets. Its charter confers on the city authorities ample power to improve the streets, and, in making such improvements, they must exercise prudence and skill. In failing to do so, they become liable for all damages that result from such action. Nevins v. The City of Peoria, 41 Ill. 502, and other cases in this court, announce the rule.

In this case, the city changed the grade of the street, and appellees applied for an injunction, and the judge decided that a preliminary injunction should be granted; but the parties agreed that the injunction need not be sued out, but the city might have appellees' damages assessed, and proceed with the work. The mayor thereupon appointed six persons to examine the property, and ascertain the damages, if any, and report the same. They examined the ground, and, after hearing argument of counsel, found appellees derived a certain amount of benefit by the improvement of the street, but sustained damages, over the benefits, to the amount of $175, and so reported to the common council. They thereupon approved and confirmed the report, and proceeded to the completion of the work, and now refuse to pay the damages.

The bill for an injunction, among other things, charges that, by raising the grade of the street, it would flow the water on the premises of appellees; and if that was true, and, by using other means to accomplish the work, that could have been avoided, then the city would have been liable for thus flowing water on their premises. If the city, in fixing the grade of the street, or in afterwards changing it, flows water on a lot, that did not naturally carry off, the city must be held liable therefor. City of Aurora v. Gillett, 56 Ill. 132; City of Aurora v. Reed, 57 Ill. 20. If, as the bill alleges, the city was so constructing the street as to flow the water from the street upon them, and they could, as we presume they might, have avoided such injury, by proper sewers or drains, then there was such damage to private property as would render the city liable for the injury. This, then, formed at least a claim for damages apparently just, and if so, it was the proper subject for adjustment and compromise; and, in pursuance to an understanding between the parties, means were adopted, entirely satisfactory to all concerned, for an adjustment, which was had, and the city went on and constructed the work.

Can it be possible that a municipal corporation may be clothed with power to injure and destroy the property of private individuals, without limit, and yet there be no power to make compensation? Are th...

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11 cases
  • Van Meter v. Darien Park Dist.
    • United States
    • Illinois Supreme Court
    • October 17, 2003
    ...Keene, 143 Ill. 425, 32 N.E. 180 (1892); Stack v. City of East St. Louis, 85 Ill. 377, 1877 WL 9564 (1877); City of Bloomington v. Brokaw & Gregory, 77 Ill. 194, 1875 WL 8287 (1875); City of Aurora v. Reed, 57 Ill. 29, 1870 WL 6575 (1870); City of Aurora v. Gillett, 56 Ill. 132, 1870 WL 649......
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