| Ill. | Apr 17, 1900
It is first contended that the court erred in holding that the property of appellants should be assessed for the paving of the approaches to the Polk street and Harrison street viaducts. The evidence shows that within the limits of the improvement provided by the ordinance there are three approaches leading to the viaducts on Canal street, which extend east and west on streets intersecting Canal street. One of the approaches is at the north end of the improvement on Canal street and leads up to the viaduct on Harrison street; the other two approaches lead up to the viaduct on Polk street. These approaches are each about three hundred feet long. They are the full width of the pavement, and are supported by retaining walls of stone masonry, making about nine hundred lineal feet of pavement upon the approaches for which appellants insist they should not be assessed.
Section 1 of the foregoing ordinance of the city of Chicago, passed December 20, 1880, granted permission to the Chicago, Burlington and Quincy Railroad Company' to construct tracks between West Harrison street and West Twelfth street. By section 3 of this ordinance the privileges granted by section 1 were “upon the express conditions that the said railroad company shall pay, or cause to be paid, to the city of Chicago the cost and expense of constructing and erecting a new viaduct on Polk street over the railroad tracks crossing said street, between Canal street and the Polk street bridge, together with all proper lateral and other approaches necessary thereto, the money necessary therefor to be paid by said company, as aforesaid, as fast as required by the city in paying for the construction of said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repair to be done pursuant to the direction of the city council.” It was further provided in this section that “the permission and authority hereby granted are upon the further express condition that the said railroad company shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its tracks on any street or streets crossed by its tracks,- except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require.” There was also a further proviso that when any such viaducts could not be constructed across the tracks of said railroad company without crossing the track or tracks of some other railroad company, the Chicago, Burlington and Quincy Railroad Company should only be obliged to join such other railroad company in paying the expense of erecting, constructing, maintaining and keeping in repair such viaducts and its approaches, which were to be constructed according to the plans and specifications of the department of public works. In other words, in consideration that the railroad company should construct, maintain and keep in repair these viaducts and approaches the city council granted to the Chicago, Burlington and Quincy Railroad Company the right to lay its tracks in certain places named in the ordinance. The object of the city was to protect itself from erecting or maintaining these viaducts and approaches by reason of the concessions granted to the railroad. The evidence tends to show the viaducts and approaches were constructed in 1881, and paved with cedar blocks by the railroad company at that time. The word “approaches” must be held to include the retaining walls, the filling with dirt, and the paving and roadway, suitable for the use for which it was intended. This construction of the ordinance is further sustained by the fact that when the approaches were first constructed the pavement was not made by the property owners, but by the railroad company. The ordinance says the railroad company shall maintain and Iceep in repair the approaches,—not some particular portion thereof, but the whole structure, and without expense or cost to the city of Chicago. As counsel for appellants suggest, just as the word “bridge” would include the floor or roadway, so “approach” must include the pavement and roadway thereof.
The case of Hayes v. New York Central and Hudson River Railway Co. 9 Hun, (16 N. Y. Sup.) 63, seems to be in point. There an action was brought by Thomas Hayes against the New York Central and Hudson River Railway Company for injuries received by him by being thrown from his wagon on the north approach of the bridge crossing the defendant’s tracks at West Albany. Upon condition that the railroad company would maintain the bridge, permission had been given to construct this bridge over the crossing at West Albany, and the bridge was constructed and maintained by the defendant. There were approaches to the ends of the bridge, which sloped up to them, and the surface of one of these approaches was out of repair, because of which plaintiff was injured. It was contended by the railroad company that the obligation to construct and maintain the bridge did not include the maintenance of the approaches, but the court held that the approaches were a necessary part of the bridge; that the railroad company could hardly bé permitted to erect a bridge and not construct the means of reaching it, and that in undertaking to build the bridge they undertook to make it accessible, and that what they undertook to construct they should maintain in repair. It was further contended by the railroad company, that even though they might be obliged to maintain the approaches, the maintenance did not apply to the surface of the roadway, aud that this should be kept in order by the commissioner of highways; but the court, following the case of North Staffordshire Railway Co. v. Dale, 8 E. & B. 836, held that maintaining the bridge included no.t only the substructure and the support of the approaches, but the roadway as well.
In the case of North Staffordshire Railway Co. v. Dale, 8 E. & B. (92 Eng. C. L.) 836, above referred to, the same question arose. In that case a railroad company had carried a road over the railway by a bridge and had constructed approaches of earth, with embankments to support the same. The depth of the earthwork and embankment, measuring from the surface of the former road, was about fifteen feet on one side of the bridg'e and about twenty-one feet on the other. The bridge and the approaches were constructed pursuant to a special statute, and pursuant to this statute notice was given to the railway company to put the bridge and approaches in good condition and repair. The order was not complied with, and the question arose as to whether or not the railway company, under this particular act, was obligated by law to maintain in repair the whole of said road, or what part thereof. The phrase of the statute which imposed the duty upon the railway company is, that “such bridge, with the immediate approaches, and all other necessary work connected therewith, shall be constructed and at all times thereafter maintained at the expense of the company.” Lord Campbell, C. J., says that it is clear that this section creates the obligation for which the respondent contends: “I cannot imagine language more conclusively creating an obligation. What is to be done in the first instance? It is said that the act distinguishes between a structure and a superstructure, but, clearly, the obligation which it imposes is not discharged by merely putting in arches. The work must be completed so as to be fit for the passage of carriages. Till then the act is not complied with. * * * But when constructed it is to be maintained, and the road as well as the superstructure -was to be made. There is no inconvenience. On the contrary, the inconvenience would be the other way if different bodies had to maintain the bridge and the road.”
Under the ordinance granting permission to the Chicago, Burlington and Quincy Railroad Company to construct tracks between West Harrison and West Twelfth streets on the express conditions that the railroad company should pay the expense of constructing and erecting the viaduct on Polk street, with all proper laterals and approaches necessary thereto, and all viaducts over its tracks, and of maintaining and keeping in repair such viaducts and approaches, it was the duty of that railway company, or other railroads, as provided in the ordinance, to pave the approaches on Canal street to the Polk street and Harrison street viaducts, and it was error to assess the appellants’ property for the paving of these approaches, as held by this court in Cummings v. City of Chicago, 144 Ill. 563" date_filed="1893-03-31" court="Ill." case_name="Cummings v. City of Chicago">144 Ill. 563.
It is also urged that the ordinance for the improvement is unreasonable, oppressive and void, for the reason that it provides for re-paving with brick that portion of South Canal street between the south-easterly line of Lumber street and the south branch of the Chicago river, now well and sufficiently paved. It appears from the record that that portion of South Canal street between the south-easterly line of Lumber street and a point one hundred and eighty feet south-easterly of that line is that portion of South Canal street lying between the southeasterly line of Lumber street and the river, and embraces the whole Canal street frontage of appellant Tegtmeyer’s property. It also appears that portion of South Canal street is now paved with a cedar-block pavement, and is in very g'ood condition, being put down about four years ago; that Teg'tmeyer’s property is not accessible from South Canal street on account of the approach to the bridge; that access to his property is wholly from Lumber street.. It further appears that another portion of South Canal street—a viaduct—within the limits of this improvement, and extending about a block and a half, paved with wooden-block pavement, is omitted from the proposed improvement by the ordinance in question. Why it is excepted does not appear. The one hundred and eighty feet from Lumber street to the river, to which appellant Tegtmeyer objects, is the south end of the proposed pavement. It is not denied but that this cedar-block pavement along the frontage of Tegtmeyer’s property was in good condition when the ordinance was passed and at the time of the trial. Is it not unreasonable to compel him to pay for a brick pavement when there is a good pavement along the frontage of his property, which has been in use only about four years, and when it appears another piece of block pavement within the limits of the improvement is omitted? There is nothing in the evidence showing that a brick pavement is required in this particular locality, or that it is a better pavement than block pavement, or that the block pavement is in bad condition.
It appears to us that the ordinance in this case imposes an unreasonable burden on appellant Tegtmeyer, by compelling' him to pay for a brick pavement' when there is a good cedar-block pavement, which has only been laid about four years and is in good condition. In the case of Hawes v. City of Chicago, 158 Ill. 653" date_filed="1895-11-01" court="Ill." case_name="Hawes v.City of Chicago">158 Ill. 653, this court reversed a judgment of the county court of Cook county confirming a special assessment which provided for the laying of a cement sidewalk, because the owner of the property, about six months before, had put down a plank sidewalk in accordance with an order of the common council of the city of Chicago, and which was shown to be in good condition at the time of the passage of the ordinance for the cement sidewalk. We there said (p. 657): “An ordinance must be reasonable, and if it is unreasonable, unjust and oppressive the courts will hold it invalid and void. (City of Chicago v. Rumpff, 45 Ill. 90" date_filed="1867-09-15" court="Ill." case_name="City of Chicago v. Rumpff">45 Ill. 90; Tugman v. City of Chicago, 78 id. 405.) The question of the reasonableness or unreasonableness of a municipal ordinance is one for the decision of the court, and in determining that question the court will have regard to all the existing circumstances or contemporaneous conditions, the objects sought to be obtained, and the necessity or want of necessity for its adoption.—Toledo, Wabash and Western Railway Co.v. City of Jacksonville, 67 Ill. 37" date_filed="1873-01-15" court="Ill." case_name="Toledo, Wabash & Western Railway Co. v. City of Jacksonville">67 Ill. 37; City of Lake View v. Tate, 130 id. 247; 1 Dillon on Mun. Corp. sec. 327.” So far as the ordinance affects the property of Tegtmeyer it is unreasonable and oppressive, and consequently void.
The judgment of confirmation as to the property of appellants, Hugh McFarlane and William O. Tegtmeyer, will be reversed and the cause will be remanded.
Reversed and remanded.