161 N.E. 486 | Ill. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *266 On April 1, 1925, the city council of the city of Chicago passed an ordinance for the construction of a cement sidewalk six feet in width on the north side of Henderson *267 street from the west line of Kimball avenue to the east line of North Central Park avenue (except in certain specified places) in the city. The ordinance provides the details for the material and the method of construction of the improvement. The engineer's estimate, which was submitted with recommendation of the board of local improvements, contains an itemized estimate of cost of the different parts of the improvement. On December 3, 1925, the city filed in the county court of Cook county a petition for confirmation of a special assessment for the construction of the sidewalk. An assessment roll was filed, assessing the property benefited at $2213 and nothing for public benefits. Legal objections were filed, evidence heard, arguments presented, and the objections were overruled. On the hearing on benefits further evidence was presented, and the jury found that the property would be specially benefited in the amount stated in the assessment roll. The court entered judgment on the verdict and confirmed the assessment. From the judgment of the county court the objector prayed an appeal.
The property of the objector affected by the proposed improvement is located on the northwest side of the city and is included within a triangular area, with Henderson street, extending east and west, as the base or southern boundary, North Central Park avenue, extending north and south, forming the western boundary, and Avondale avenue, extending diagonally from northwest to southeast, completing the triangle at the southeastern point of intersection of that avenue with Kimball avenue and Henderson street, forming the northeast boundary. There are sidewalks on all those streets except on the north side of Henderson street, and on that a sidewalk extends from North Central Park avenue east to an alley. There is also on the north side of that street about forty feet of sidewalk extending west from Kimball avenue to an employees' entrance to appellant's plant. The proposed improvement, *268 when completed, would result in continuous sidewalks on both sides of Henderson street connecting with existing sidewalks on Kimball and North Central Park avenues, both of which streets are open north and south. The street next east of North Central Park avenue is Drake avenue, but there is an alley between those streets. Only three lots between the alley and North Central Park avenue are owned by appellant, though east of the alley it owns several lots facing east on Drake avenue, in that block. It owns all of the lots east from North Drake avenue to Kimball avenue on the north side of Henderson street. The south half of the tract from Drake avenue to St. Louis avenue (the next street east of Drake avenue) is vacant, but appellant proposes to use it in connection with its plant. The remainder of the property east to Kimball avenue is enclosed with a tight-board fence about eight feet in height. The buildings of appellant are in the enclosure extending from St. Louis avenue (if that street were actually extended) to Kimball avenue. St. Louis avenue is not paved and there are no sidewalks on that street or on Drake avenue. On the west side of Drake avenue, north of appellant's property and immediately south of Avondale avenue, are five two-flat brick buildings. The property on the south side of Henderson street is for the most part improved and occupied with residences of laboring people. The territory to the west is improved with brick apartment and other residences; that to the north and east is industrial property. In the residence portion west and south of the property in question is a public school, a Catholic church and a parochial school.
In appellant's plant are several substantial brick buildings, some sheet-iron buildings and warehouses, steel tanks, sheds, and considerable vacant land inside and outside the enclosure. In some of the buildings are machinery and equipment for use in the manufacture of chemicals, and some of the buildings and machinery, it was testified, could not be used in their present condition in any other line of *269 business because they were designed especially for chemical manufacturing. The value of the plant as a going concern was estimated by one of appellant's witnesses to be about $900,000 and by one of appellee's witnesses to be worth $1,250,000. About seventy-five persons are employed, most of whom come from east and south of the plant but none from the immediate vicinity. Most of them reach the plant by street car or railway. The Belmont avenue street car line runs east and west two or three blocks south of the plant, and the Chicago and Northwestern railroad runs parallel with and along the northeast side of Avondale avenue, though on an elevation and separated from the street. It has stations not far from the plant. No employees or customers of appellant use the north side of Henderson street in walking to the entrance of the plant, which is at the intersection of Henderson street with Avondale and Kimball avenues, where the offices of the company are situated. There are no stores to be reached by going in either direction on Henderson street. The most convenient trading points are Belmont avenue on the south and Addison avenue to the north of the Chicago and Northwestern railroad. Pedestrians coming from any point north of Henderson street on North Central Park avenue, if more convenient to Henderson street and Avondale avenue, would be required to cross to the south side of Henderson street in order to have the use of a sidewalk, and then would have to re-cross to the north side of Henderson street to reach the entrance to appellant's plant or points north on Kimball avenue. Appellant's business is wholesale and practically no customers visit the plant. Most of the company's purchases are made by mail.
The president of appellant testified first on the legal objections that the company in the further development of its plant would desire to construct driveways, which would necessitate expensive changes if the sidewalks were built, and that there was already a good sidewalk on the south *270 side of Henderson street. On the hearing on benefits he testified that the proposed sidewalk would not be used and that it would be a detriment to appellant's property instead of a benefit. One of the reasons assigned for the opinion was that some of the land adjacent to the plant is low, and a sidewalk constructed under those conditions would require some filling for the sub-grade, and the walk would break down more or less frequently. The secretary of the company for the most part corroborated the president's testimony. Two other witnesses testifying for the objector stated that the improvement would not benefit its property. One of those witnesses testified that he was familiar with surrounding industrial property extending to about a mile from appellant's plant, and that from his observation when such industrial property is held and used for years for one purpose, under certain conditions it becomes immaterial whether there is a sidewalk adjacent to the plant. The testimony of an employee of the objector was offered, but upon objection he was not permitted to state his opinion as to whether the improvement would benefit appellant's property.
The superintendent of streets of the city testified on the hearing on legal objections to the general conditions, the substance of which has been stated. Two real estate dealers testified at the hearing on benefits on behalf of the city as to their familiarity with the property in question and other property in the vicinity. The first of those witnesses testified as to the residential character of the neighborhood west and south of appellant's plant, and that it is well built up with bungalows and two-flat apartment buildings. He expressed the opinion that the proposed improvement would benefit appellant's property at least $5000. He stated that the property adjoining the proposed improvement, from the standpoint of appearance and accessibility, would be benefited at least $3 per foot on Henderson street and seventy-five cents to $1.50 per foot on the intersecting streets. *271
It is contended (1) that the ordinance is unreasonable and void because the improvement is wholly unnecessary; (2) that the engineer's estimate is not in compliance with the statute; (3) that there was error in the admission and exclusion of evidence; and (4) that there was error in the giving and refusing of instructions.
Upon the first objection, appellee suggests that there is nothing before the court on this appeal to show that the trial court committed error in overruling the legal objections; that there is nothing in the abstract of the record to show that the points raised in certain objections, of which this is one, were brought to the attention of the trial court. A reference is made in the abstract to all of the legal objections in the following language: "The printed form of objections employed so frequently in Cook county assessments, containing 110 objections, is filed, and inasmuch as the sufficiency of said objections to cover the point being raised has not been questioned, those objections are not set forth in the abstract." It does not appear that any motion was made to require the objector to specify the particular objections upon which it intended to rely, but this would not relieve the objector of the duty to abstract particular objections upon which it relied and of assigning error upon them. Objections specifically relied upon should be set forth in the abstract. (Village of Northbrook v. Sterba,
The court will not hesitate to hold an ordinance void if it clearly appears from the evidence that the improvement for which it provides is unnecessary. The necessity, character and extent of a public improvement in a city are committed *272
to the judgment of the city council, but such judgment must be exercised in a reasonable manner in view of the circumstances and surrounding conditions. (City of Carbondale v. Reith,
The contention that the engineer's estimate is not a compliance with the statute because it does not furnish the property owner information as to the nature, kind and extent of the improvement need not be considered. There is no specific assignment of error covering this objection. The error must be specifically pointed out in the assignments of error.Village of Northbrook v. Sterba, supra.
It is contended that two witnesses for appellee testified to the value of appellant's property before the improvement without any familiarity with the chemical business and the restricted use of the buildings and machinery adapted solely to such purpose. They testified that they were familiar with industrial property and gave the reasons for their opinion that the property would be specially benefited. While *273
the rule may be different as to a public or quasi public corporation devoting property to a special use, land owned by a private corporation and devoted to private use is subject to assessment regardless of the special use of the property. The use being merely voluntary, the owner may change it at any time and obtain the benefit of the improvement. (City of Lincoln v.Chicago and Alton Railroad Co.
It is also objected that the court should not have permitted one of the witnesses to testify to an increase in value of the property by reason of the improvement in appearance created by the proposed sidewalk. Apart from the question of whether an improvement is local or general, it "is made primarily for the accommodation and convenience of the inhabitants." (City ofWaukegan v. DeWolf,
It is contended that the court erred in instructing the jury to sign verdict numbered 1 if they found, from a preponderance of the evidence, that the property of the objector had not been assessed more than it would be benefited or more than its proportionate share of the cost of the improvement. The instruction is in accordance with the last part of section 49 of the Local Improvement act. (Cahill's Stat. 1927, p. 334.) It was not necessary to incorporate the word "specially" before the word "benefited" in the instruction. (McLennan v. City ofChicago,
It is also contended that the next instruction was erroneous in that it directed the jury to consider the esthetic effect of the proposed improvement. The jury were instructed that in determining the amount of special benefits to be assessed against the property objected for, "you may consider the effect of the proposed improvement upon the fair cash market value of such property in connection with its present use, if any, and in connection with the highest and best use to which it can be devoted or applied, as shown by the evidence in the case, if any." The instruction itself was not improper and if applied to the proper evidence in the case would not be misleading. In view of the fact that a witness was permitted to testify that appellant's property was improved in appearance to the full extent of the assessment, the instruction might justify the jury in concluding that the element of appearance was sufficient to warrant the assessment. The instruction, while stating a correct rule of law when applied to competent evidence, may have been misleading because of the incompetent evidence.
It is contended by appellant that the following instruction does not differentiate between special benefits and benefits enjoyed generally by all property in the neighborhood:
"The court instructs the jury that there are only two issues to be tried in this case, namely: whether the property or any of the property objected for has been assessed more than it will be benefited by the said improvement, and whether the said property has been assessed more than its proportionate share of the cost of the said improvement. All other questions have been decided by the court as legal *277 objections and are not to be considered by the jury in this case."
This instruction was proper. (Kelly v. City of Chicago,
Another instruction that the jury might take into consideration all the natural and probable results which might follow from the improvement is said to be erroneous. It did not limit the jury's right to draw its conclusions from the evidence in the record. The instruction should have contained that limitation. Muren Coal and Ice Co. v. Howell,
Counsel for appellee assert that because the instructions are taken as a series and the first instruction used words showing that the jury's conclusions must be based upon the evidence, the jury would understand that no conclusions could be drawn except from the evidence. The jury might have that understanding, but common observation of the result of jury trials shows the jurors are not conversant with distinctions of that character. Like observation leads to the conclusion that they are often unwilling to be governed by them. The first instruction was merely an instruction as to the form of verdict to be signed if the jury found from the evidence that the property of the objector had not been assessed more than it would be benefited nor more than its proportionate share of the assessment. It was an independent statement even though it was to be taken as one instruction in a series. It is not similar to an instruction containing several clauses, in which it is unnecessary *278 to repeat in each clause a preface contained in the first, to which all the clauses relate.
An instruction which attempted to define preponderance of the evidence contained this language: "and if you believe, from the evidence and from all the facts and circumstances appearing from the evidence in the case, that the evidence of a smaller number of witnesses on one side is more credible and trustworthy than the evidence of a greater number of witnesses on the other side, then and in that event you are instructed that the preponderance of the evidence is on the side of the smaller number of witnesses." It is admitted the instruction is poorly worded. While it is doubtful whether it was prejudicial, it could not be helpful to the jury and should not have been given. It contained an abstract statement of the law and left the jury to conjecture as to its meaning and application in arriving at a verdict.
It is contended the following instruction should have been given on behalf of the objector:
"The court instructs the jury as a matter of law that if you believe from the evidence in this case that the proposed sidewalk, if constructed, would not be used to any substantial extent by persons for the purpose of ingress and egress from the property assessed, you should find the issues for the objector."
The means of access to the property is important in determining the value of the property, but the question of benefits must finally rest upon increased value by reason of the improvement, which is the only basis for the assessment. (Jones v. City of Chicago,
Objections are made to other instructions, but they are not deemed of sufficient importance to be noticed. *279
It is contended by counsel for appellant that the ordinance for the proposed sidewalk is unreasonable and void; that it is unnecessary. One of the errors assigned is that the judgment of confirmation is contrary to the evidence. The evidence offered by the objectors upon the question of benefits was equivalent to an indication that the necessity for the improvement was being questioned, though for such purpose, alone, the evidence would not be proper. It was shown, on the one hand, that the improvement would furnish sidewalk facilities on both sides of Henderson street between Kimball and North Central Park avenues, which are open or through streets, without the necessity of those living north of Henderson street crossing over to the south side of the street if they wished to go either east or west and turn back to the north after reaching either Kimball or North Central Park avenue, as the case might be, and, on the other hand, it was testified that the improvement was not needed for the use of appellant's employees or customers. It is not constructed for that purpose, only. It could not be definitely shown how much the improvement would be used if the sidewalk was there. Pedestrians would not ordinarily walk on a path though a part of it was of cinders. Evidence to that effect was largely speculation. While the knowledge of the places of residence of employees of appellant might permit the positive testimony to be given that they would not use the sidewalk when constructed and that customers of the plant would not use it, those persons do not constitute an appreciable part of the population entitled to use it.
The judgment of the county court is reversed and the cause is remanded.
Addendum
The foregoing opinion reported by Mr. Commissioner Crow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded. *280
