The Vill. of Hyde Park v. Borden
| Decision Date | 30 September 1879 |
| Citation | 1879 WL 8660,94 Ill. 26 |
| Parties | THE VILLAGE OF HYDE PARKv.JOHN BORDEN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court of the First District; the Hon. THEODORE D. MURPHY, presiding Justice, and Hon. GEO. W. PLEASANTS and Hon. JOSEPH M. BAILEY, Justices.
This was an application made originally to the county court of Cook county, for confirmation of a special assessment made by the village of Hyde Park, for the cost of constructing a brick sewer in Forty-first street, from State street to Lake Michigan. The portion of the ordinance of the village of Hyde Park for the construction of said sewer, in dispute in the case, is as follows:
“ Be it ordained by the President and Board of Trustees of the Village of Hyde Park:
SECTION 1. That a brick sewer be constructed from Lake Michigan to a point seventeen feet east of the center line of State street, in the village of Hyde Park, the center line of which shall coincide with the center line of Forty-first street from said point seventeen feet east of the center line of State street to a point ten feet west of the center line of the east half of the north-west quarter of section 3, township 38 north, range 14 east of the third principal meridian; there curve until it intersects with said center line of the east half of said north-west quarter section 3, at a point four feet south of the center line of Forty-first street; thence east and parallel with the center line of said Forty-first street to a point in the west line of Grand boulevard; thence north-easterly until it intersects with the center line of Forty-first street at the east line of Grand boulevard; thence running along center line of Forty-first street to a point seven feet east of the center line of Langley avenue to south, if extended; thence north-easterly to a point on the west line of Cottage Grove avenue ten feet north of the center line of Forty-first street; thence north-easterly to a point on the east line of Cottage Grove avenue, and ten feet south of the center line of Forty-first street, east of said Cottage Grove avenue; running thence east and parallel to the center line of said Forty-first street to the west line of the west roadway of Drexel boulevard; thence curve until it intersects with a point twenty feet south of the south line of Forty-first street and fifty feet east of the west line of the west roadway of said boulevard; thence south-easterly and parallel to said west line of west roadway of Drexel boulevard to a point thirty feet north of the north line of the Union Stock Yards railroad right of way; thence curve until it intersects with a point seventy feet east of the west roadway of Drexel boulevard, and nine and one-half feet north of the north line of the Union Stock Yards railroad right of way; running thence east and parallel to the south line of Cleaverville, being a subdivision of part of the north-west fractional quarter section 2, township 38 north, range 14 east of the third principal meridian, to a point thirty-five feet west of the west line of Michigan terrace; thence along a line at a right angle to the lines of the Illinois Central railroad right of way to the water's edge of Lake Michigan.”
Mr. HENRY V. FREEMAN, for the appellant:
1. There is no such uncertainty in the ordinance in the use of the word ““curve,” without defining the nature or character of the curve, or its radius or location on the ground, as will operate against its validity. There is no discretion given in regard to the extent of the work, or the manner of its execution, so as to bring the case within the ruling in Foss v. City of Chicago, 56 Ill. 359. The curve must be adapted to the purpose prescribed in the ordinance--the purpose of a sewer. Constructed in any other way it would not meet the requirements of the ordinance. There can be but one proper way to construct the curve, and evidence was offered to show that it had been so constructed.
The objection to the ordinance may be considered as properly classified with that referred to in a late decision of this court:
“The objection the ordinance does not direct how the pipe shall be laid, whether on top of the earth or under, nor how deep, is simply hypercritical, and needs no consideration.” The People v. Sherman, 83 Ill. 167.
An engineer locating the sewer described in the ordinance would locate this curve in one way, and only one, and have no difficulty in so doing. 2. If a party suffer a street to be opened through his land without objection, he can not afterwards interpose a claim for compensation. He should insist upon his claim in due time, so that the corporation may vacate the ordinance, if it regards the assessment of damages as unreasonable. Curry v. Mt. Sterling, 15 Ill. 320.
Here the owner, Cleaver, suffered the sewer to be built through his property without taking any steps to prevent it. He is estopped from making any claims against the construction of this sewer through Michigan terrace.
It needs no argument more than the mere statement to maintain that if Cleaver was estopped from making any defence by his own conduct, no other objector could urge Cleaver's trouble as his defence.
3. It is no proper objection to the ordinance that it omits to make provision to ascertain the compensation to be made for private property which might be taken or damaged in the construction of the proposed improvement. Nor was it essential to the validity of the ordinance that, at the time of its passage, the right should have been acquired to pass over the lands of third persons. The matter of compensation could be fixed and the right to use private property acquired, after the adoption of the ordinance, and without reference to the prior want of action in that regard.
Mr. CONSIDER H. WILLETT, also for the appellant:
The ordinance is valid, and the use of the word “curve” does not make it void. The practical language of ordinary contracts will satisfy the requirements of ordinances. The People v. Sherman, 83 Ill. 165; Rickets v. Village of Hyde Park, 85 Id. 110.
Cases upon which objectors rely, and which appellants claim are not obnoxious to the ordinance: Fox v. Chicago, 56 Ill. 354; Jenks v. City of Chicago, Id. 397; Lake Shore and Michigan Southern Railroad Co. v. Chicago, Id. 454; Bowen v. Chicago, 61 Id. 268; Workman v. Chicago, Id. 463. In law no permission was necessary from the Illinois Central Railroad Company in order to construct a sewer across their right of way. Rev. Stat. 1874, page 222.
Mr. L. D. CONDEE, also for the appellant.
Messrs. MATTOCKS & MASON, Mr. JOHN P. WILSON, and Mr. CHARLES E. POPE, representing different objectors, the appellees, insisted the ordinance was void by reason of its uncertainty in the proper location or description of the ““curve” to be made in the construction of the proposed sewer;--and urged various other grounds of objection to the assessment.
This is an appeal from a judgment of the Appellate Court for the First District affirming the decision of the Superior Court of Cook County, dismissing an application by the village of Hyde Park, which had been originally made to the county court of Cook county, for confirmation of a special assessment for the cost of constructing a brick sewer in Forty-first street, in said village, from State street to Lake Michigan.
The ordinance of the village of Hyde Park for the construction of the sewer, adopted Nov. 2, 1876, in its description of the course of the sewer names three several curves between two given points, without giving the radius of the curves,--as, for instance, after naming a point the description says, “thence curve until it intersects with a point,” (naming it,)--such description occurring three times.
The course of the sewer as defined by the ordinance was through Michigan terrace, forty feet, a former public street in the subdivision of Cleaverville, in Cook county, made by Charles Cleaver, who made a plat of the subdivision according to the general statute in force on the first day of January, 1852, upon which plat Michigan terrace was shown as a public street. Michigan terrace had been vacated by a private act of the legislature passed...
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