Withers v. Granite City

• Decision Date: 22 September 1961
• Docket Number: No. 36452,36452
• Citation: 177 N.E.2d 181,23 Ill.2d 156
• Parties: Charlie D. WITHERS et al., Appellants, v. GRANITE CITY et al., Appellees.
• Court: Illinois Supreme Court

Page 181

177 N.E.2d 181

23 Ill.2d 156

Charlie D. WITHERS et al., Appellants, v. GRANITE CITY et al., Appellees.

No. 36452.

Supreme Court of Illinois.

Sept. 22, 1961.

Morris B. Chapman, Granite City, for appellants.

William Beatty and Lueders & Robertson, Granite City (Randall Robertson, Granite City, of counsel), for appellee.

HERSHEY, Justice.

The plaintiffs instituted a declaratory judgment action in the circuit court of Madison County seeking to have an ordinance of the city of Granite City declared void. The city and the Granite Office Building Corporation were named as defendants. The ordinance in question granted, to the building corporation the authority, for a period of 50 years, to install, operate, maintain, replace and repair a four-inch steam pipeline, two 10-inch chilled waterlines, a message-carrier pipeline and certain electrical conduits, together with the right to install and maintain the necessary valves, traps, manholes and other appurtenances for the purpose of transmission of steam, water, messages and electrical current in, under, over and across and along certain designated streets within the city of Granite City.

The city streets to which the ordinance was applicable ran along a route from the Granite City Steel Company to the site of a proposed new office building and bank quarters. The building corporation is a wholly owned subsidiary of the steel company and the building corporation would own and erect the office building; although, at the time of this proceeding, title to the property on which the office building would be located was not in the defendant Granite Office Building Corporation.

Plaintiffs are the owners of certain property abutting on a street along the proposed route, and sue as such, as well as citizens and taxpayers of the municipality. It is the contention of the plaintiff that the ordinance of the municipality purporting to grant the stated authority to the building corporation was ultra vires. A contention that the ordinance violates section 22 of article IV of the constitution, S.H.A., prohibiting the grant of special powers to any corporation, was not further argued in the briefs and is, therefore, deemed to have been waived. People ex rel. Montgomery v. Lierman, 415 Ill. 32, 112 N.E.2d 149.

The parties to this proceeding each filed motions for summary judgment, together with affidavits and counteraffidavits in support thereof. The defendants' motion for summary judgment was granted and the plaintiffs appealed to this court, the trial court having certified that the validity of a municipal ordinance is involved and that the public interest requires any appeal to be to this court.

The streets here involved were created by statutory plat. The fee title in the streets, therefore, was in the defendant city which held the same in trust for use of the local and general public. The facts in this case are to be distinguished from cases involving the common-law dedication of streets or alleys wherein the abutting owner retains the fee, subject, however, to the rights of the general public. The public or the municipality acquires an easement over the streets, the abutting owner retaining the fee. However, even in cases where the municipality has only an easement in the street, the easement includes the right to use the land beneath the surface if such use is necessary to implement the easement. Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642.

While there are valid legal distinctions to be made in cases where the municipality has a fee as contrasted to only an easement, it was held in People ex rel. Mather v. Marshall Field & Co., 266 Ill. 609, 623, 107 N.E. 864, 869, L.R.A.1915F, 937, '* * * that in any event, whether the fee title was in the city or the abutting property owner, the street under the surface of the ground could only be used in such a manner as would safeguard the paramount right of the public to the full and unobstructed use of the street for the purpose for which it was dedicated; that the city would not be estopped by any action of its own from requiring the space occupied beneath the street to be surrendered to the...