The City of Elgin v. Eaton
| Decision Date | 30 September 1876 |
| Citation | 1876 WL 10394,83 Ill. 535,25 Am.Rep. 412 |
| Parties | THE CITY OF ELGINv.LEWIS S. EATON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kane county; the Hon. HIRAM H. CODY, Judge, presiding.
This was an action on the case, by the appellee against the appellant, to recover damages for injuries claimed to have been occasioned by the grading of Jackson and Bridge streets, in Elgin, along and in front of the plaintiff's premises.
Mr. EUGENE CLIFFORD, for the appellant.
Messrs. BOTSFORD, BARRY & WILCOX, for the appellee.
The city of Elgin, by ordinance, required Jackson and Lridge streets to be brought to grade, and in prosecuting the work it was brought below the base of appellee's house, and when the grade of the street was completed, the level of the street would be about six feet lower than the ground on which his house stood. And it appears that to remove the house back farther from the streets, and to grade his yard so as to come to the level of the streets, would cost from $700 to $1000, but it also appears that the property would then be enhanced to a greater value than its present worth and the cost of making the change. It also appears, that it would cost $300 or $400 to wall up the bank occasioned by the cut to bring the street down to the grade fixed by the profile of the work. The evidence tends strongly to prove that the house and lots upon which it is erected are worth as much or more than before the change in the grade was made.
Plaintiff sued the city to recover damages, and on a trial in the court below he recovered a verdict for $1000, and the court, after overruling a motion for a new trial, rendered a judgment on the verdict, and defendant, to reverse the same, prosecutes this appeal, and assigns various errors.
It is first urged, that a municipal corporation is not liable for damages growing out of grading their streets. This was, no doubt, true, before the adoption of our present constitution. Article 2, sec. 13, declares, that “private property shall not be taken or damaged for public use without just compensation.” Now, this was private property, and the improvement was being made for public use, and if the property was damaged thereby, appellee is entitled to just compensation for such damage. If injury was sustained, it was for public use. See City of Pekin v. Brereton, 67 Ill. 477, and City of Shawneetown v. Mason, 82 Ill. 337. These cases fully establish the rule, that if a person is damaged in making such improvement, he may recover.
In this case the city entered upon the improvement of the street after the adoption of our present constitution, and before the passage of our Eminent Domain Law. The rights of the parties were then fixed, and can not be altered by subsequent legislation, and the right to recover damages was given by the constitution; and inasmuch as the city failed to have them assessed as they might have been under the Eminent Domain Law, then in force, the...
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