English v. City of Danville

Mr. Justice Carter delivered the opinion of the court: A municipal corporation has full power to lay out, establish, open, alter, widen, extend, grade and pave, or otherwise improve, streets and sidewalks therein, and its discretion in so doing will not be controlled by the courts, unless it manifestly abuses such discretion. It is clear that the declaration in this case does not set forth sufficient facts to give rise to the conclusion that the city of Danville abused the discretion vested in it, in the improvement of Gilbert street. While the roadway of the street was located nearer to the lot lines on the side on which the plaintiff’s property was situated than on the other side, still, sufficient space, so far as the declaration shows, was left for a sidewalk, and the mere fact that an additional space of seven and one-half feet was left next adjoining a similar space on the other side of the street, for sward, the planting of trees and other ornamentation, would not, under the mere allegation that it was done wrongfully, unnecessarily and through favoritism, sufficiently show that the city had abused its discretion in improving the street. It is apparent that had no space been left on the west side of the street for the ornamentation before mentioned, and only five and three-fourths feet left for a sidewalk, as on the east side, the plaintiff would not have had, upon the terms of his own declaration, any ground of complaint, although it would have left the space for sidewalks on each side of the street less than that provided by the ordinances, which space, as alleged, was required by the ordinances to be nine feet, for, so long as a sufficient space was left for a sidewalk, the abutting property owner would have no right of action simply because such space was not as wide as the ordinances provided it should be. The case as made by the declaration is a very different one from Carter v. City of Chicago, 57 Ill. 283. In that case the city was enjoined from so changing its roadway as to leave no space whatever for a sidewalk on the west side of the street, while a space of fourteen feet was left on the other side, where it appeared that the purpose of the city and its officers was to compel the property owners upon the west side of the street to relinquish for the purposes of a sidewalk a certain space twelve feet in width in front of their lots, which had been dedicated or reserved for the express purpose of court-yards in front of their property. The bill showed a gross abuse of power on the part of the city, and a purpose, by the exercise of such power, to ojapress the owners of property having the benefit of such court-yards. In the case at bar the city has not attempted to deprive the abutting property owners of a sidewalk, nor of a sufficient space in front of their property upon which to construct a sidewalk, and much less does it appear that the discretion of the city was exercised for any such oppressive and unlawful purpose as was disclosed by the bill in the case mentioned. As the allegations of the declaration must be construed most strongly against the pleader, it may well be that the property owners owning property abutting on the west side of said Gilbert street had, in advance of the improvement of the street by the city, and at their' own expense, built sidewalks and improved the said space adjoining it as a sward, and ornamented and otherwise improved it by the planting of trees, and that the roadway of the street was located as it was by the city to avoid the destruction of such improvements. Such a state of thing's is entirely consistent with the allegations of the declaration. Or the city, so far as anything appears to the contrary, may have had other sufficient grounds for its action which would make it apparent that no oppressive, unlawful or malicious use was made of the discretion vested in it by law. It devolved on the plaintiff in error to allege such facts and circumstances as would show an abuse of discretion on the part of the defendant, and that his property was damaged thereby. In that he failed, and the demurrer was properly sustained. The judgment of the Appellate Court is affirmed. Judgment affirmed. Mr. Justice Boggs, having passed upon this case in the Appellate Court in and for the Third District, took no part in this decision.