255 Ill. 498 | Ill. | 1912
delivered the opinion of the court:
The county court of Cook county sustained legal objections interposed by Carl Berglund and other property owners, appellees, to the petition of the city of Berwyn, appellant, for the confirmation of a special assessment levied for the cost of a sewer, and dismissed the petition. The case comes to this court on appeal from that judgment.
The objections presented to the county court which are relied upon as justifying the judgment are, first, that the city had not acquired and was not in possession of the land necessary for the proposed improvement; and second, that the power to construct an outlet sewer beyond the limits of the city of Berwyn is vested by law in the Chicago Sanitary District.
The contemplated sewer was to extend beyond the limits of the city of Berwyn by way of West Thirty-ninth street, in the town of Cicero, to its outlet in the sewer in Central avenue, in said town. An ordinance was passed by the president and board of trustees of the town of Cicero granting to the city of Berwyn permission and authority to construct, operate, control and maintain the sewer in West Thirtyminth street, with the right and authority to enter upon any portion of the land and street for the purpose of inspection, cleaning and repairing the same, and it was stipulated on the hearing that this was the only express consent given to construct and maintain the sewer in the street. Counsel says that the county court adopted the view that the ordinance was a mere revocable license and not a grant of any right or easement in the street, and therefore the city had not acquired the land necessary for the proposed improvement. A license is a mere personal and revocable privilege to do an act or a series of acts upon the land of another without possessing any interest or estate in.the land, and it is not within the Statute of Frauds. Such a privilege may be given orally. It is therefore immaterial whether it is oral or written, and if the ordinance was a mere license and not a grant of any interest in the street the conclusion of the county court was right; but if the ordinance was by its terms a grant of a permanent interest in the street to be used and occupied for the construction, maintenance and repair of the sewer, it could not be considered as a mere license, revocable by the town of Cicero at the pleasure of its president and board of trustees. The right to construct and maintain a séwer in a street without limitation as to time is a perpetual ■ easement, which must originate in a grant, and is within the Statute of Frauds. Whether an instrument is a license or grant depends upon the construction of the instrument as a question of law. If it merely confers a privilege to do an act or a series of acts under the owner which without permission would be unlawful, it is a license, but if it grants exclusive possession of premises against the world, including the owner, it is not a license but creates an estate or interest in the land, and is no more revocable than any other grant. A writing is essential to the creation of a freehold interest in land, such as a perpetual easement, but if such an interest is created by a writing and the grant is valid at all it is irrevocable.
That the town, of Cicero had power to grant a right to lay and maintain the sewer in West Thirty-ninth street cannot be doubted. The town was invested with the control of the street, and authorized to make, or permit to be made, any use of it not inconsistent with the purpose for which it was dedicated. It had power to cause or permit drains and sewers to be laid in it. In Village of Hyde Park v. Borden, 94 Ill. 26, the South Park Commissioners granted, by resolution, permission to the village of Hyde Park to construct a sewer across Drexel and Grand boulevards. The nature of the right acquired by the resolution was not involved in the case nor considered, but the power of the South Park Commissioners to make such a grant was involved and the authority sustained. In Cochran v. Village of Park Ridge, 138 Ill. 295, it was held that the highway commissioners might consent to the laying of a sewer in the highway by virtue of the statute conferring upon such commissioners the care and superintendence of all highways in their respective towns. These cases were decided before the enactment of the provision that the city must acquire the necessary land before levying a special assessment, but they decided that there was power to grant the right to lay a sewer in a street or highway. In City of Park Ridge v. Wisner, 253 Ill. 434, the highway commissioners had executed an agreement permitting the construction, maintenance and repair of a second sewer in the same highway above mentioned, and it was held that this gave to the city the right to lay the sewer, so far as the public had any right or estate in the land occupied by the highway. The judgment in that case was reversed because the city had only acquired the right of the public, which is a mere easement in the land, and had not acquired any right as against the owners of the fee. The grant by the town of Cicero was within the power conferred upon the town and by the method provided by the statute for the exercise óf the power. The grant was by ordinance, through which the president and board of trustees exercised the corporate powers, and if a similar grant, valid in other respects, had been made to some company or corporation for. a legitimate use of the street, it would not, perhaps, occur to anyone that the grant was invalid because in the form of an ordinance. It gave the exclusive right to the sewer to the city as its own property, with the right to enter upon ány portion of the land and street for the purpose of the sewer, and it was not a mere permission to do an act or series of acts in the street without any right, interest or estate in the land.
The case of City of Chicago v. Green, 238 Ill. 258, is regarded by counsel for appellees as sustaining the conclusion' of the county court. In that case the canal commissioners adopted a resolution granting the application of the city of Chicago for permission to lay a sewer in Kedzie avenue across the right of way and under the bottom of the Illinois and Michigan canal by means of a siphon, on certain conditions as to the manner of construction. The position of counsel for appellant that the canal commissioners had no authority to grant such a right was not sustained, but the resolution was regarded as a mere license, revocable by the commissioners at any time. There appears to have been no method prescribed by law by which grants of the canal commissioners could be made other than by the execution of- a lease or deed. The only objection sustained in that case was on the ground that the resolution was not a grant of a perpetual easement in the land to construct and maintain the sewer but only amounted to a license. If the canal commissioners could only exerelse their .power by executing a conveyance, the same can not be said of the town of Cicero, which can make a grant by ordinance.
It is urged, however, that at some time in the future West Thirty-ninth street may be vacated and that upon such vacation the title will revert to the dedicator or his heirs, and therefore there is an outstanding interest in the street which has not been acquired by the city. The fee of the street is now in the city, which has power to grant a perpetual easement in it, and we are not to be understood as holding that a vacation of the street would destroy the easement and give title to the sewer to the dedicator or his heirs. But aside from that question, the possibility of reverter in case of vacation is not an estate, and having no present existence would not be the subject of a conveyance. The city has acquired all the present existing right and title in the land required for the sewer.
The second proposition of counsel is, that the power to construct the sewer beyond the limits of the city of Berwyn is vested by law in the Chicago Sanitary District, and therefore the city cannot extend the sewer beyond its territorial limits. This court has declared the law to be otherwise in City of Chicago v. Green, supra, and previous cases. The corporate authorities of cities, villages and towns are authorized by statute to construct and maintain outlet sewers beyond their limits, and if the benefits which counsel say were intended to be conferred by the sanitary district have not been realized, the appeal must be to the General Assembly and not to the courts.
The judgment is reversed and the cause is remanded to the county court, with directions to overrule the legal objections.
Reversed, and remanded, with directions.
