Village of Oak Park v. Chicago & W.T. Ry. Co.
| Citation | 325 Ill. 438,156 N.E. 476 |
| Decision Date | 20 April 1927 |
| Docket Number | No. 16692.,16692. |
| Parties | VILLAGE OF OAK PARK v. CHICAGO & W. T. RY. CO. |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
Proceeding by the Village of Oak Park against the Chicago & West Towns Railway Company. Judgment of the county court modifying, and confirming, as modified, a special assessment, and defendant appeals.
Affirmed.Appeal from Cook County Court; I. L. Weaver, Judge.
Willard M. McEwen and Berthold L. Goldberg, both of Chicago, for appellant.
Levi H. Fuller, of Chicago (Harry L. Fearing, of Chicago, of counsel), for appellee.
Appellant, the Chicago & West Towns Railway Company, has prosecuted this appeal from a judgment of the county court of Cook county modifying, and confirming as modified, a special assessment against its property for a local improvement in the village of Oak Park.
The proposed improvement is of the roadway of Lake street, from the west line of Oak Park avenue to the west line of Austin boulevard, and also the roadways of all intersecting streets and alleys extended from the curb line to the street line produced on each side of Lake street between said points (except that part of Lake street occupied by street railway), by constructing a concrete combined curb and gutter on cinders, grading and paving the present roadway with an asphalt wearing surface and binder course on 5 inches of Portland cement concrete swept with Portland cement, grading and paving (except present roadway) with an asphalt wearing surface and binder course on 8 inches of Portland concrete cement swept with Portland cement, constructing and connecting new brick catch-basins complete, adjusting sewer manholes and catch-basins, and constructing and connecting catch-basin inlets, furnishing and setting cast-iron manhole covers, adjusting abutting sidewalks and abutting pavements, at an estimated total cost of $139,000. The street to be paved had formerly been paved with brick. It had been paved by two different improvements, one of which had been constructed about 13 years, and the other about 15 years, before the present ordinance was passed. One of these improvements had a combined curb and gutter on each side of the brick pavement, while the other had only a straight stone curbing on each side of the brick. As we understand the record, the brick pavement having the combined curb and gutter was 36 feet wide, and including the gutter was 38 feet wide when measured from inside of curb to inside of curb. The other improvement was also [325 Ill. 441]38 feet wide from the inside to inside of the stone curbing, leaving the brick pavement 38 feet wide. The proposed improvement, as shown by the ordinance, is to be 50 feet wide from inner face of curb in inner face of curb, the gutter on each side of the pavement to be 12 inches in width.
The petition for the local improvement, accompanied by the recommendation of the board of local improvements, the estimate of the work to be done, and its probable cost, and the ordinance with plans and drawings attached showing the location of the proposed improvement, was filed by the village. The commissioner appointed to spread the assessment assessed appellant's property, described as lots 6, 7, 9, 10, 11, and 12 and the east 182 feet of the west 625 1/2 feet of block 38 in Wm. Beye's resubdivision in Oak Park, in Cook county, Ill., at the total sum of $5,911.90. Various legal objections, and the further objection that the property was assessed more than its proportionate share and more than it would be benefited, were filed by appellant. By agreement of the parties a hearing was had before the court, without a jury, on all objections. The court overruled all legal objections and confirmed all of the assessments against appellant's property except the last tract above described, which was assessed at $2,410.10. The assessment on that tract was reduced by the court to $1,606.70.
[1][2] Appellant contends that the ordinance and the engineer's estimate of the cost of the improvement are void because of variances between the ordinance and the estimate. The basis of one of these contentions is that the ordinance merely exempts that part of Lake street occupied by the street railway, and that by the franchise ordinance the width of the street railway is 16 feet 8 inches, and that the engineer, instead of exempting 16 feet 8 inches from his estimate for the railway, exempted 17 feet 4 inches. The engineer who made the estimate at first testified that he exempted 17 feet 4 inches as that part of the street occupiedby the street railway tracks, but later he changed or corrected his evidence by stating that he was mistaken in his statement that he had considered 17 feet 4 inches as the part of the street occupied by the street railway, and that, as a matter of fact, he had considered in his estimate the width of such railway track as 16 feet 8 inches. We have examined the engineer's testimony, and we think it clearly appears therefrom that his statement, corrected as aforesaid, was properly admitted, and that he had really made a mistake as to the width of the railway he had exempted.
[3] The estimate for the paving was in two parts. The first estimate by the engineer is:
‘Paving present roadway with an asphalt wearing surface and binder course of 5 inches of Portland cement concrete swept with Portland cement, 13,450 square yards, $4-$53,800.’
The engineer testified that his estimate of 13,450 square yards exceeded by 316 square yards his exact figures in making that calculation and that he added this 316 square yards to take care of irregularities in the width of the street car track and in the width of the old brick pavement. Under the facts in the record, we do not think that such a variance is evidence of willfulness, as contended by appellant, as the word ‘estimate’ imports a calculation not professedly exact. The engineer's testimony disclosed that there was quite a variance in the width of the street car tracks and in the width of the old pavement. Therefore there is not such a variance between the ordinance and the estimate as to imply fraud, and we do not think the court erred in overruling this objection.
[4] The engineer's estimate that is required by the statute is for the purpose of advising the property owners of the probable cost of the improvement, and it need not be absolutely accurate, and it is sufficient if it conveys a substantially correct idea of the component elements of the improvement. It is not necessary for the estimate to set out in minute detail all the separate items of material and labor which go into the improvement, but it is only necessary to set out the substantial component elements of the improvement. City of Highland Park v. Gail, 276 Ill. 24, 114 N. E. 563;Village of Ladd v. Chicago, Ottawa & Peoria Railway Co., 283 Ill. 260, 119 N. E. 276;Harmon v. Village of Arthur, 309 Ill. 95, 140 N. E. 53;Patton v. Village of Palestine, 304 Ill. 489, 136 N. E. 727.
[5] Appellant argues further that there is shown a variance between the estimate of the engineer and the ordinance because there is a disagreement between them as to the location of the present or old roadway. We do not think that such a disagreement appears in the record. Appellant contends that the ordinance fixes the present width of that roadway as the distance between the faces of the curbs. We think that the ordinance fixes the present roadway as the engineer estimated it, or as that part of the street that was paved with brick, and that it does not included the curb and gutter on that part that has a curb and gutter, and does not include the stone curb on that portion of it that has simply a stone curb on each side of the brick pavement. This old brick pavement was to be torn up and replaced with an asphalt pavement on a 5-inch concrete base. It has been held by this court to be proper in an ordinance of this character to refer to existing things that are permanent in their nature as places or lines from which to measure. When reference is made to an object or thing as fixed and existing, which has locality, width, and dimensions, the presumption is that it can be found and located, and there is no patent ambiguity in the description. The present roadway, which is paved with brick, is a fixed and definite object which has definite locality, width, and dimensions, and the new roadway may be located definitely by reference to the existing roadway paved with brick. Ogden, Sheldon & Co. v. City of Chicago, 224 Ill. 294, 79 N. E. 699.
The ordinance does not in terms state that by ‘present roadway’ it means the portion thereof paved with brick, excluding the gutter and curb, but in giving directionsabout the reconstruction of this part of the road we find this language in the ordinance:
‘The present roadway of said Lake street from the west line of Oak Park avenue to the west line of Austin boulevard (except that part of said Lake street occupied by street railway), and also the roadways of all intersecting streets and alleys extended from the curb line to the street line produced on each side of Lake street (except that part of the intersection of Harvey avenue occupied by street railway) between said points, shall be prepared for receiving the pavement hereinafter provided for by removing therefrom all existing brick pavement, by spiking and shaping and by filling all depressions in the existing macadam foundation of the present roadway of said Lake street between said points with the same kind of material as hereinafter specified for concrete base; that after being thoroughly rolled with a roller of 10-tons weight until the roadbed is thoroughly compacted, and after the pavement hereinafter described shall have been placed thereon, the surface of the finished pavement where it joins that part of said roadway occupied by street railway on each side of said street railway in said Lake street shall be 2 inches above the established grade of said Lake street...
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