Gregsten v. City of Chicago

Mr. Justice Shope delivered the opinion of the Court: By the amendment to the charter of the city of Chicago, passed in 1863, the board of public works was given the power “ ‘to regulate the placing or building of vaults under the streets, alleys and sidewalks, and require such compensation for the privilege as they shall deem reasonable and just, subject to the approval of the common council.” Under the authority thus conferred, as well as in execution of the power of exclusive control over the streets and alleys of the city by the city authorities, the board of public works executed a permit to appellant, Gregsten, to excavate for and construct a vault under the alley running north and south through block 142, school section addition to said city, in the rear of and adjoining lot 16 in said block, and to maintain and use such vault “in connection with the building erected, or to be erected, upon said lot,” etc. As will be seen from the foregoing statement, said permit is, by its terms, subject to all the restrictions, limitations and conditions of the bond of said Gregsten, of even date, executed to the city. The question sharply presented in this record is, whether the permit, construed in connection with the bond, so far as it relates to matters not affecting the public use of the alley, constitutes a contract, irrevocable by the city at will. “It is the general doctrine that municipalities, under the power of exclusive control of their streets, may allow any use of them consistent with the public objects for which they are held.” Nelson v. Godfrey, 12 Ill. 20; City of Quincy v. Bull, 106 id. 337; Gridley v. Bloomington, 68 id. 47; C. & N. W. Ry. Co. v. Elgin, 91 id. 251; Chicago Mun. Gas L. Co. v. Town of Lake, 130 id. 42; Dillon on Mun. Corp., 541-551. In this case, however, special power had been conferred, by the act amendatory of the charter, to make the grant, upon such consideration as the city authorities might deem reasonable and just. (Sec. 12, act 1863.) Upon looking into the bond, it is seen that appellant was required, as part consideration for the grant, to so construct his vault and cover the same that the alley should, at the grade established by the city, be at all times open, and in safe repair and condition for the passage over it of all persons, animals and vehicles. Beneath the surface, the city reserved the right of entry, at all times, for all purposes affecting the public interest. The water, gas and sewer pipes, etc., of the city, might be constructed, enlarged and repaired, at all times, through and under said vault and the walls thereof, in the discretion of the city authorities. The permit, it is apparent, relates solely to such use of the alley as was in no wise inconsistent with its full enjoyment for all public uses and purposes. Moreover, as will be seen, it is expressly stipulated, that whenever the public interests shall demand it, the rights under the permit shall cease. The city, through its constituted authorities, in granting the permit upon the covenants, conditions and limitations contained in the bond taken by the city from Gregsten, was, therefore, acting in its private corporate capacity, as distinguished from its public and political, or governmental capacity, and the doctrine applicable to the exercise of its public political powers does not apply. Bailey v. Mayor, etc., of N. Y., 3 Hill, 539; DeVoss v. City of Richmond, 18 Gratt. 338; Quincy v. Bull, supra. The public, except in so far as it might be benefited, had no interest in the subject matter of the grant. It is insisted, however, that the permit was void, because no approval thereof by the city council is shown. It is alleged and proved, that upon receiving the permit Gregsten excavated the vault, built and covered it, as required by the condition of his bond, at large expense to himself. That he entered into occupancy of it, placing therein boilers and apparatus, using it as appurtenant to his building located on said lot sixteen. That the building having been destroyed by the great fire of October, 1871, he rebuilt upon said lot, and again putting said alley-way in like condition as before, maintained the vault, as an appurtenance to his said building, to the filing of this bill, a period of practically twenty years. During all that time, with knowledge of the construction and use of the vault by the city authorities, as admitted in the answer, he kept the alley in repair; and, for this time, the city was saved all expense of the maintenance and repair of the surface of the alley, in the rear of and abutting said lot sixteen. In Gridley v. Bloomington, supra, we said: “Although no license from the city to make the vault is shown, on the other hand no objection by the city is shown either to the making of the vault, the mode of its construction, or the state of repair in which it has been kept; and situated as it is under the sidewalk, in a public street, and for so great a length of time, we can not presume that those having charge of the streets were ignorant of its existence, or of the respective rights and duties of the city, and the owners of the property in relation to it. We regard this acquiescence as a sufficient recognition by the city of authority to construct and maintain the vault in a prudent and careful manner.” So, in the previous case of Nelson v. Godfrey, supra, it is held that, as the privilege of excavating under sidewalks, etc., for vaults is of great convenience, and may with proper care be exercised with little or no inconvenience to the public, authority to make the same will be inferred in the absence of any action of the corporate authorities to the contrary, they having knowledge of the progress of the work. See, also, Dillon on Mun. Corp., sec. 554. So, in this case, the approval of the city council may be inferred from its long acquiescence in the use of the alley, for the purpose for which the permit was granted. And especially will this be so, when it is shown, as it is here, that the occupancy under the permit inured to the benefit of the city, which it received with knowledge of the right claimed by complainant. As we have seen, the city authorities were authorized to regulate the placing of vaults under sidewalks, streets and alleys of the city, and require compensation for the same. A reference to the condition of the bond will show, that the consideration fixed and agreed upon between Gregsten and the city was, that he should bring the alley to the grade established by the city make approaches of easy slope thereto, covering the vault, so as to render it safe and secure as a way for public use and travel, and to forever keep and maintain said alley in such condition and repair. The said Gregsten was required to covenant for himself, his heirs, executors, administrators and assigns, to forever keep and maintain said alley in said condition, and to renew and repair the same whenever required so to do by the city authorities. By the express terms of the permit he is granted the right to build, maintain and use the vault in connection with his buildings erected, or to be erected, on said lot sixteen. It seems clear, that the parties had in contemplation, at the time of entering into the arrangement, that Gregsten, his heirs and assigns, should have the right to build and maintain a vault under said alley, as appurtenant to the building upon lot sixteen, and be bound to maintain the same in suitable repair and condition for the public use and convenience perpetually, unless the public convenience or necessity required the removal of the vault from the alley. He and his representatives are required to forever keep and maintain said alley in repair, and to save and keep harmless the city from all loss or damage by reason of its, at any time, being out of repair. It was also in contemplation of the parties that, in addition to the liability of the grantee in the permit, his heirs and assigns, to keep said alley in repair, and thereby save the city the cost and expense of paving, maintaining and repairing the same, and from all loss by reason of its being out of repair, he or they might be subject to a further tax as rent, as the city in the exercise of reasonable discretion might determine. It is expressly stipulated in the bond, “that said Samuel Gregsten shall not be subject to any tax upon the same” (the vault) “as rent, beyond what shall be charged for similar vaults.” The objection, therefore, that the contract was without consideration, is without merit. By the arrangement thus made the municipality in its private corporate capacity made the grant upon a sufficient consideration, securing rights mutually advantageous to the parties, and in no wise conflicting with or infringing upon any public interest. And the permit having been granted upon the express conditions and stipulations to be kept and performed by Gregsten, the two instruments constituted a contract mutually binding upon the parties. 15 Am. & Eng. Enc. of L. 1106, note 3. The city, when acting in its private capacity, as contra-distinguished from its governmental capacity, is bound by its contracts, and may be estopped by the conduct of its proper officers when acting within the scope of their lawful power. C., R. I. & P. R. R. Co. v. Joliet, 79 Ill. 39; Logan Co. v. Lincoln, 81 id. 156; Martel v. E. St. Louis, 94 id. 67; Chicago v. Sexton, 115 id. 230. We are of opinion that the permit and bond, forming parts of the same transaction, constituted a contract between the parties, not revocable by the city, unless the public interest or convenience demanded it, or for some other cause for which the contract, by its terms, might be revoked. By the terms of the bond the city reserved the right to revoke the permit and re-enter whenever the public interest should require it, and also, upon the failure of Gregsten, his heirs, executors or assigns, to keep and perform the covenants and conditions in the condition of his bond mentioned, and upon the termination of the permit, it was stipulated that Gregsten should remove and fill up the vault, thereby restoring the alley to its former condition. It is not pretended that the interests of the public demand, or its convenience requires, the removal by Gregsten from the vault, or its abandonment, and a resumption by the city of absolute control over the alley. We have already seen, that for all public purposes the municipal authorities had and retained under the contract absolute control of the same. In addition, by reference to the conditions of the bond, it will be seen that Gregsten, his representatives and assigns, were bound to renew and repair the surface of the alley whenever and in such manner as should be ordered by the city council or board of public works of the city. It is admitted in the answer, and if it were not it is abundantly shown, that the attempt to oust the present occupants of the vault is not demanded in the public interest, or to serve a public purpose, but is solely to enable the abutting owner, upon the east of the alley, to occupy one-half of the alley space in the rear of said lot sixteen for private uses. The answer admits that a permit had been given to one McVicker, to occupy and improve the east half of that part of said alley abutting on complainants’ lot, and that it is the intent and purpose to put said McVicker in possession of ouch right under said permit. No such right is reserved in and by the contract, and such purpose is, therefore, unlawful. The city is without power to deprive the complainants of their rights, under its contract with Gregsten, for the benefit of private individuals, or to subserve private purposes and ends. The bill alleges, and the proof sustains the allegation, as we think, that the grantee in the permit put the surface of the alley in the condition required by the contract, and kept and maintained the same in safe repair and condition for the passage and travel over and across the same of all persons, animals and vehicles, as required in and by his bond. It is true, -the answer sets up that the surface of said alley over said vault had been permitted to become out of repair, and was in a dangerous condition, etc., and that there was, therefore, a right of revocation of the permit under the terms of the contract. There is some evidence tending to show that the surface was depressed in the middle of the alley, and that some boards were broken. That the alley over the vault was in a dangerous condition, or unsafe or insecure for the passage of all persons or vehicles, is clearly rebutted. The beams holding the covering were of oak and sound, on which there was first laid three-inch plank and on top of these a layer of two-inch plank, which had been renewed practically within two years. Up to the filing of this bill it would seem that no complaint had been made, knowledge of which was carried home to complainants at least, that the surface of the alley was in any wise out of repair. Mr. Hirsch, of the engineering department of the city, upon his examination of it shortly before the service of notice upon complainants to remove from the vault, is shown to have pronounced it safe, etc. We are not unmindful that the commissioner of public works says, in effect, that he gave the notice, and was proceeding against complainants because the surface of the alley was in a dangerous condition. Without criticism of this statement, it maybe said that it is abundantly shown that such was not its condition, and that as early as December, 1889, without any complaint that the alley was out of repair, and without any notice to complainants, a permit to occupy the east half of the alley, then in possession of the complainants, was given to Mc-Vicker. There is not a scintilla of evidence tending to show that the alley was then in any way out of repair; and the avowed purpose of the city and commissioner of public works in their answers is, as we have seen, to permit McVicker to occupy under the permit to her. Moreover, it appears, and is not controverted, that immediately upon receiving notice that it was claimed that the alley was out of repair, etc., and being the first notice complainants had of any intention on the part of the city, or its officers, to require them to give up the alley, or any part of it, complainants went to the commissioner of public works and demanded of him, that if he claimed said alley was not properly planked or paved, that he give them specifications, showing in what manner and in what material it was required they should plank or pave the same; and then offered, if the commissioner required it, “to put iron beams across said alley space, and to place over the same concrete, stone blocks,'wood blocks, or any other kind of pavement said commissioner might require; ’ ’ and practically the same offer is made in and by complainants’ bill. By an ordinance of the city, passed April 17, 1885, in reference to the improvement of alleys in the district of the the city in which this alley is located, it is (sec. 3) provided that: “The commissioner of public works shall furnish the proper grades for all work done under this ordinance, and all improvements so made shall be done under the direction of said officer and as he shall direct, and in no other manner.” It is shown that the commissioner, although repeatedly requested so to do, declined to give complainants any direction whatever in respect of the manner in which the alley should be repaired or improved, or to direct them in respect thereof. If the alley was out of repair, and the public interest alone was to be considered, every duty to the public would have been subserved by the performance of the duty required by said ordinance of said commissioner! It is clear, from this record, that the complainants were not only ready, able and willing, but offered to put the surface of said alley'in such condition and repair, and use such material, as said commissioner might require. It is impossible to consider this record, as it seems to us, and not find that the decided preponderance of the evidence is against the contention, not only that the surface of the alley was out of repair, but also that the proceedings against the complainants were instituted for that reason. It is true that there is, and must necessarily be, vested in city authorities a large discretion to determine when the public streets and alleys of the city are in suitable repair to insure safety to the public. If the commissioner of public works had condemned the covering to the vault and required, its renewal, or had deemed it necessary for the public convenience or safety that the vault should be more securely covered, or differently paved, and complainants had neglected or refused to keep their covenant, and repair or renew, a different question would have been presented by the record, which it is unnecessary for us here to discuss or determine. We are of opinion that the court erred in sustaining the motion to dissolve the injunction and in dismissing the bill. The decree, and the judgment of the Appellate Court affirming the same, is reversed and the cause remanded to the Circuit Court for further proceeding not inconsistent with this opinion. Judgment reversed.