146 Ill. 158 | Ill. | 1893
delivered the opinion of the Court:
It is urged as ground of reversal, that the facts alleged in the bill show that the city council was without power to vacate that portion of the alley, lying between lot 5- and lots 10, 11, 12, 13 and 14, as shown in the plat of Starr’s subdivision, and that, as a condition precedent to the vacation of the same, it was necessary that the damages to complainant’s lots be ascertained and paid. The municipality holds the streets and alleys of the city in trust for the general public, and by the statute is given power to vacate the same whenever the public interest or convenience, in the exercise of a reasonable discretion, shall seem to such authority to require it. Rev. Stat. par. 7, see. 1, art. 5, chap. 24.
The argument sought to be based upon the reversion of the fee of the street or alley to the dedicator or abutting lot owner is without force. It can make no difference, as to the power of the municipality, whether the fee remains in the city, reverts to the original dedicator, or passes by operation of law to the adjoining owners j nor will the fact that the use of the alley or street passes to a private individual or corporation necessarily render it an exercise of power for a private and not for a public purpose.
A question of more difficulty arises upon the second contention made. It is insisted and alleged in the bill, that the vacation of the alley deprived the complainant of a valuable property right, which she would otherwise enjoy as appurtenant to her lots, and that if said alley was vacated for a public use or purpose it damaged her property, and she was therefore entitled to compensation. While private property can not be taken by public authority for private use, it may be taken or damaged for a public use upon payment of just compensation to be ascertained by a jury in the mode prescribed by law. (Const. sec. 13, art. 2.) It seems to be well settled in this State, that where no part of the land or property of the complaining owner is physically taken for or in making the proposed public improvement, and the damages claimed to result are therefore consequential, only, this provision of the eonstition does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power. Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 76; Patterson v. Chicago, Danville and Vincennes Railroad Co. id. 588; Schertz v. Peoria and Rock Island Railroad Co. 84 id. 135; Pennsylvania Mutual Life Ins.. Co. et al. v. Heiss et al. 141 id. 35.
It seems to be sufficient to answer the constitutional requirement, that a remedy is provided for the recovery of such damages. And the same construction was given in the Stetson case, supra, to the word “damaged,” as employed in the act to provide for the exercise of eminent domain. It was there held, and which has been repeatedly since followed, that the damages there referred to were direct and physical, resulting from a taking of a portion of the land, and that where no portion of the land is taken the damages suffered are consequential, and that condemnation proceedings were not required to be instituted to ascertain the same.
It is, however, insisted, that although no portion of complainant’s property was physically taken, by section 1 of chapter 145 of the Revised Statutes the city council was required to ascertain and pay to complainant the damages to her property resulting from the vacation of the alley, and not having done so, the ordinance is void. That section is as follows: “That no city council of any city, * * whether incorporated by special act or under any general law, shall have power to vacate or close any street or alley, or any portion of the same, except upon a three-fourths majority of all the aldermen of the city * * * authorized by law to be elected, such vote to be taken by ayes and noes, and entered on the records of the council. * * * And when property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.”
It is urged that the latter clause requires, as a condition to the vacation or closing of a street or alley, that damages be ascertained and paid. It can not be, however, that the legislature intended that in all cases there should be a judicial determination as to whether all the property lying adjacent to, or that might in a remote degree be affected by the closing of, the street or alley, was damaged or not. It is only “when property is damaged by the vacation or closing of any street or alley,” that the same is to be ascertained as provided by law. It is apparent, we think, that discretion is vested in the municipal authorities to determine, in the first instance, whether property will or will not be damaged by the proposed vacation or closing of the street or alley. If they, in the exercise of a reasonable discretion, find that property will be specially damaged by the proposed vacation or closing, they should proceed to ascertain and pay the same, as was done in Meyer v. Teutopolis, 131 Ill. 552. If, on the other hand, they determine that no injury will inure to the property by their proposed action, they may, by ordinance passed in conformity with the statute, vacate or close such street or alley. Any other construction of the statute would require the municipality to summon into court every person whose property, however remotely, might be injured by the proposed vacation, and would render the ordinance void, if the contention of appellant be correct, if it should afterward turn out that a single owner whose property had been damaged had been omitted. The presumption is, that the city council, being clothed with governmental functions, will discharge its duty as required by law, and that where property is damaged by the proposed vacation or closing of any of the streets or alleys of the city, they will ascertain and pay the damages as required,—and this presumption will obtain until the property owner has, in an appropriate action, established his right to damages, and the property owner will, where no proceedings have been instituted by the municipality to ascertain his damages, be remitted to his remedy at law for recovery of the same. The determination of the city authorities can not, however, be conclusive upon the property owner. He will be entitled to his day in court, to recover, in an appropriate action at law, all such special damages to his property, as contradistinguished from damages he suffers in
common with the public, as will be occasioned by the proposed vacation. Chicago v. Union Building Ass. 102 Ill. 379; East St. Louis v. O'Flynn, 119 id. 200, and eases supra; Rigney v. Chicago, 102 id. 64; McDonald v. English, 85 id. 236.
Moreover, while the bill alleges that the complainant had an easement in the alley vacated, there are no allegations showing special damages or injury peculiar to her lots, or that are, in kind, different from those sustained by the general public. Such special injury, or damages differing in kind from those affecting the general public are the gist of the right of private action, and, to give the complainant any standing, either in equity or at law, must be alleged and,shown. It is apparent, we think, taking the allegations of the bill as true, as must be done, the damages resulting to complainant are of the same kind as those sustained by the general public, and differ only in degree, as the convenience afforded by use of the alley would be greater or less to her than to others of the general public. (McDonald v. English, supra; East St. Louis. v. O'Flynn, supra; Chicago v. Union Building Ass. supra, and cases cited on page 393.) Complainant is not deprived of access to the rear of her lots, but is inconvenienced, doubtless, by having to go a few feet further to gain access thereto from the adjacent street. But, as said in the O’Flynn case, supra, that “is the ‘same kind’ of damage that will be sustained by all other persons in the city that might have occasion to go that way, and although the inconvenience he may suffer may be greater in degree than to any other person, that fact would not give him a right of action.” It may be that special damages have been sustained, not alleged. If so, the complainant may recover in the appropriate form of action.
It is also insisted that the demurrer was improperly sustained, because, it is alleged in the bill, the ordinance vacating said alley was passed in a batch of ten or more, and without consideration by the council. It is not pretended that any such facts are shown by the record of the city council, or that the vacating ordinance did not receive a “three-fourths majority of all the aldermen of the city” authorized by law to be elected, or that said vote was not taken by ayes and noes, and duly entered upon the records of the city council, as required by the section of the statute before quoted. It is not necessary to determine whether the record might be attacked for fraud, and it be shown that- the ordinance was not, in fact, legally passed. It is not alleged or pretended that the record of the city council does not show the facts requisite to a valid passage of the ordinance, or that the same was corruptly or fraudulently made.
We are of opinion that the decree dismissing the bill was properly entered, and the judgment of the Appellate Court
should be affirmed.
Judgment affirmed.
