The City of Pekin v. Brereton

• Decision Date: 31 January 1873
• Citation: 1873 WL 8240,16 Am.Rep. 629,67 Ill. 477
• Parties: THE CITY OF PEKINv.JAMES F. BRERETON et al.
• Court: Illinois Supreme Court

67 Ill. 477

1873 WL 8240 (Ill.)

16 Am.Rep. 629

THE CITY OF PEKIN

v.JAMES F. BRERETON et al.

Supreme Court of Illinois.

January Term, 1873.

APPEAL from the Circuit Court of Tazewell county; the Hon. CHARLES TURNER, Judge, presiding.

This was an action on the case, brought by James F. Brereton, and Eleanor A. Brereton, his wife, against the city of Pekin, to recover damages done to certain lots owned and possessed by them, by reason of the grading done for and in the construction of a railroad on a public street in the city of Pekin, opposite the lots in question.

The injury complained of, was the making of deep excavations in the street and sidewalk adjoining the lots, so that the plaintiffs were obstructed, injured and deprived of the use of their lots; and, also, that plaintiffs were put in great fear that injury would result to said lots and tenements thereon by the caving and falling of the said street and lots.

Mr. THOMAS MAHON, and Messrs. SAWYER & PRETTYMAN, for the appellant.

Messrs. ROBERTS, GREEN & PURPLE, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This case comes before us on a stipulation as to the facts, and on the rulings of the circuit court on the instructions.

It is not denied, if appellants are liable at all, this action is well brought, but it is claimed by them they are not liable to any action. Their claim to immunity is placed on the ground that the control of the streets of the city is in them as a municipal corporation, placed there by their charter, and as the railroad was constructed for the public good, as is admitted by appellees, appellants are not responsible to individuals for any damages resulting to them in the lawful exercise of a power with which they are vested.

It is admitted the authorities of the city had not, prior to the injury of which complaint is made, established the grade of these streets by any ordinance or other act or resolution, and that the title to the lots in question, and the actual possession thereof, were in appellees at the time of the injury and of action brought. It is also admitted that the property of appellees was damaged by the excavation and embankments made by the railroad company, to the amount of six hundred and fifty dollars, as found by the jury in their verdict?? It is also admitted the railroad company were authorized, by an ordinance of the common council, to do the acts they did do, and of which complaint is made. It does not appear that the fee of these streets is vested in the city of Pekin.

On the questions presented, the authorities are not entirely harmonious. We do not deem it necessary now to review them, as that labor has been performed by this court in Nevins v. The City of Peoria, 41 Ill. 502, which, in principle, is analogous to this case.

To sustain the views held by the counsel for the city, the case of Wilson v. The Mayor, etc., of New York, 1 Denio, 597, was relied on as it is in this case, holding, as it does, a city was not liable for damages resulting to the property of one from the exercise of a power with which they were clothed. This court, whilst admitting the power to grade the streets, said, that the mode in which the power is to be exercised, in reference to the rights of others in the enjoyment of their property, is limited in the same way and to the same extent as the power of a private person in the use of his property, unless the city calls to its aid the right of eminent domain; and if it does that, the right is to be...