The City of Chicago v. Mcgraw

Citation1874 WL 9294,75 Ill. 566
PartiesTHE CITY OF CHICAGOv.MARY MCGRAW.
Decision Date30 September 1874
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

Mr. T. LYLE DICKEY, for the appellant.

Messrs. HOYNE, HORTON & HOYNE, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was trespass by the plaintiff in the court below, and now appellee, against the defendant in that court, and now appellant, for injuries done to her property, under the direction of the defendant, in excavating, widening and deepening the Illinois & Michigan canal, at Canal Port, in Cook county. There was evidence on the trial that the title to the property claimed to have been injured was originally in the name of the plaintiff's husband, John McGraw; that he and she joined in a deed, and conveyed it to their son, Peter J. McGraw, on the 18th of April, 1859, and Peter J. McGraw afterward, and on the 31st day of March, 1863, reconveyed the property to the plaintiff. The plaintiff's husband, at the time the alleged injuries were committed, and at the time of the trial, was still alive, residing with her, and their marital relations had never been dissolved. It is insisted that he was, therefore, a necessary party to the suit; that the plaintiff did not acquire the property in good faith from a person other than her husband, and consequently cannot claim it as her sole and separate property, under the act of February 21, 1861, relating to the separate property of married women.

The deed from the plaintiff's husband and herself to their son, Peter J., on the 18th of April, 1859, conveyed whatever title her husband then had in the property to Peter J., and his deed to the plaintiff, on the 31st day of April, 1863, invested her with that title. Whether the controlling motive in these transactions was to defraud creditors of the plaintiff's husband, or to place the title, by what was supposed to be the necessary legal steps, in the plaintiff, it would seem to be quite certain that he retained no interest, either legal or equitable, in the property. He could not be heard either in a court of law or equity, should he seek to reinvest himself with the title, for the reason that he had parted with it, for either of these purposes. The plaintiff acquired her title, in the language of the statute, from a person other than her husband, and that she did so in good faith can be questioned alone by those who have a right to object to her holding the title. These, it is believed, are limited to her husband's creditors. Certainly, he has no right to object, and those who have injured the property cannot, therefore, be held responsible to him as for an injury done to his property, and we can conceive of no other grounds upon which they can question the plaintiff's right.

The evidence is full to the point that the plaintiff has controlled and managed the property, as her sole and separate property, free from the control of her husband. The evidence does not show a joint use or possession by the plaintiff and her husband; but it is clearly shown that the business connected with the use of the property was exclusively managed by her, in her own name, and that her husband did nothing whatever, but simply lived with her as a mere pensioner on her bounty. The property being, then, as against wrong-doers, the sole and separate property of the plaintiff, acquired from a person other than her husband, in good faith, and being under her sole and separate control, the suit was well brought in her name alone. Beach v. Miller, 56 Ill. 206.

The next inquiry is, does the evidence sufficiently show that the alleged trespasses were committed under the direction, or by the authority of the city.

Fox, Howard & Walker were sued jointly with the city, but after hearing evidence, and before the case was finally given to the jury, on motion of appellee's counsel, the case was dismissed as to them. Before this was done, Howard was sworn and examined as a witness in his own behalf, and testified that the work on the canal, resulting in the injuries complained of, was done by his firm under a contract with the city, and pursuant to the terms of that contract. The contract itself, however, was not offered in evidence, and what its terms were, we cannot know. No ordinance of the city relating to the work was given in evidence; on the contrary, when it was offered to read such ordinance, as evidence on behalf of the city, they were, on motion of appellee's counsel, excluded by the court. There seems to have been a zealous effort, indeed, on behalf of appellee, to exclude all evidence showing the connection of the city with the improvement of the canal.

That an action of trespass lies, in a proper case, against a municipal corporation, is not an open question in this court. Allen v. The City of Decatur, 23 Ill. 334; Wolf et al. v. Boettcher, 64 ib. 316. But to render it liable, in any case, for torts committed by persons claiming to act for it, or by its authority, it must appear that they were expressly authorized to do the acts by the municipal government, or that they were done bona fide in pursuance of a general authority to act for the municipality on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation. Thayer v. Boston, 19 Metc. 571. See, also, Dillon on Municipal Corporations, § 772, and note.

Assuming, as we shall, that appellant was authorized by the legislature to ““widen and deepen” the Illinois & Michigan canal, for its own benefit, we cannot judicially know that it determined to do so, however well known the fact may have been to its citizens; nor can we take cognizance, without proof, of what ordinances and contracts it may have adopted and made on that subject; nor can we, in the absence of proof, know that its agents or employees acted within the scope of their duties. Counsel for appellee...

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23 cases
  • Persons v. City of Valley City
    • United States
    • United States State Supreme Court of North Dakota
    • December 6, 1913
    ...... carrying it out was done in an unlawful and improper manner. and resulted in damage to plaintiff's property, the city. is liable. Chicago v. Norton Mill Co. 196 Ill. 580,. 63 N.E. 1043; Boye v. Albert Lea, 74 Minn. 230, 76 N.W. 1131. . .          A city,. in laying out, ... [144 N.W. 679] . 11 R.I. 520, 23 Am. Rep. 520; Ashley v. Port Huron, . 35 Mich. 296, [26 N.D. 354] 24 Am. Rep. 552; Chicago v. McGraw, 75 Ill. 566. All of these cases appear to be. directly in point, announcing a rule contrary to that. contended for by respondent's counsel in the ......
  • Eaton v. City of Weiser
    • United States
    • United States State Supreme Court of Idaho
    • July 6, 1906
    ......Co., 64 N.J.L. 664, 46 A. 593;. Thomas v. Western Union Tel. Co., 100 Mass. 156;. Criss v. Seattle Electric Co., 38 Wash. 320, 80 P. 525; McGraw v. Friend & Terry Lumber Co., 120 Cal. 574, 52 P. 1004; Dickey v. Maine Tel. Co., 43 Me. 492; Town of Gosport v. Evans, 112 Ind. 133, 13 N.E. 256; Indianapolis v. Cook, 99 Ind. 10; Bruker v. Covington, 69 Ind. 33, 35 Am. Rep. 202; Chicago v. Richardson, 75 Ill.App. 198; Harris v. Town of. Clinton, 64 Mich. 447, 8 Am. St. Rep. 442, 31 N.W. 425;. Claus v. Northern S. L. Co., 89 F. ......
  • City of Rawlins v. Murphy
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1911
    ...city in grading Front street would not be ultra vires in any event. (Howell v. Buff, 15 N.Y. 512; Chicago v. Turner, 80 Ill. 419; Chicago v. McGraw, 75 Ill. 566; Sewell Cohoes, 75 N.Y. 45; Mayor v. Sheffield, 4 Wall. 189; Leavenworth v. Laing, 6 Kan. 274; Alleghany City v. McClurksen, 14 Pa......
  • Aaron v. Hendrickson
    • United States
    • United States Appellate Court of Illinois
    • December 6, 1991
    ...... (Jones v. Sanitary District of Chicago (1912), 252 Ill. 591, 601-02, 97 N.E. 210, 214-15; First National Bank v. Amco Engineering Co. ...Old Ben Coal Corp. (1920), 222 Ill.App. 380, 383, citing City of Chicago v. McGraw (1874), 75 Ill. 566.) In the present situation, the trial court was made ......
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