City of Chicago v. Norton Milling Co.

Mr. Justice Carter delivered the opinion of the court: The admission of the contract in evidence is assigned as error. It is contended that the city officials who signed the contract had no authority to do so on behalf of the city; that it is void because no previous appropriation was made to pay the obligation of the city created by it, and because it arose out of the illegal act of the corporation counsel in dismissing the petition as to part of the land sought to be condemned; that it is not mutual; that the city had no right to acquire any interest in land except by condemnation; that there was no consideration to support the contract, and that the portion granting the use of the street to appellee is void for lack of power in the city to make such a grant. On behalf of appellee it is contended that the most that can be alleged against the validity of the contract is, that it was entered into in an unauthorized manner. It is contended, however, that it has been fully executed and that the city has received the benefit of it, and that the city, by its acts and by its acquiescence, ratified the act of its mayor and commissioner of public works and is estopped to deny its validity. The city had power to construct bridges; to deepen, widen, dock, alter or change the channels of water courses; to erect and keep in repair, regulate and control docks. (Rev. Stat. 1874, chap. 24, par. 62.) It also had the power to acquire, by purchase, lease or gift, not to exceed four acres of land for bridge purposes. (Laws of 1877, p. 61; Starr & Cur. Stat. chap. 24, par. 284.) The city, instead of acquiring all the land at first sought to be condemned, which would have brought its property to within two feet of the Norton mill, took a smaller portion. This necessitated acquiring the right to swing the end of the new Madison street bridge over a portion of appellee’s premises. Its officers then entered into a contract with appellee by which the city acquired this right, and in consideration therefor agreed to construct the vault under Madison street and give the use of it, rent free, to appellee for as long a time as it had power to do so. It is also recited in this part of the contract that the use and enjoyment of the easement of swinging its bridge over this part of appellee’s premises would necessitate certain changes in the engine room and the removal of the boilers from their then location at the south-east corner of the building, and thereby subject appellee to great. expense, and to great loss and inconvenience through the interruption of its business resulting therefrom, and' this expense and loss are made part of the consideration for the contract. Whether this arrangement,—that is, the taking of about half the land originally contemplated to be taken and the building of this vault for appellee for the privilege of swinging the bridge over its premises,—was more or less advantageous to the city than the condemnation of the whole strip would have been does not appear. The facts show that the whole strip was not needed for the purpose of widening the river sufficiently for the new bridge. That the city might make such an arrangement or compromise, when sanctioned by the city council, is undoubted. The city having power to do so, the act of its officers in making this contract was not ultra vires the corporation and illegal, but only beyond the authority delegated to the officers, and could be ratified by the city, and the city might be estopped to deny the validity of their acts. (Town of Bruce v. Dickey, 116 Ill. 527; Barnard & Co. v. County of Sangamon, 190 id. 116.) In so far as this part of the contract is concerned, it was mutual and founded on a legal consideration. The lease of the vault under Madison street was not illegal, such leases having been upheld in Gregsten v. City of Chicago, 145 Ill. 451, and under the contract the city was not entitled to recover any rent therefor. Nor does this conflict with what is said in Hibbard v. City of Chicago, 173 Ill. 91. In that case an awning had been erected, which the court held was an unlawful obstruction in the street. The vault spoken of was beneath the street and not an obstruction of any kind, and the city is not estopped by the contract from reclaiming this space whenever necessary for the uses of the public. We think the facts show that the city ratified the contract with full knowledge. The contract was executed in duplicate iu 1889, and a copy of it was presumably filed in the appropriate public office. The work that was done under it was done by a succeeding administration. The work of re-building the dock and constructing the vault under Madison street was done by and under the direction of the city and paid for by the city. The bridge was opened for traffic in 1891, and has been used and swung over the premises of appellee ever since. It is true, this suit was begun in 1892,—only six months after the opening of the bridge; but no plea attacking the contract was filed till 1898, nor was any act shown by the city disaffirming or ignoring the contract. It was fully executed. As was observed before, it does not appear whether the action of the corporation counsel in the premises was more beneficial to the city than the condemnation of the whole strip, as directed by the city council, would have been, but in the absence of any testimony to the contrary we must presume that the counsel, mayor and commissioner of public works acted for the best interests of the city in what they did. That the conduct of a suit is largely within the control of the attorneys needs no demonstration. But at all events, whether the city ratified the contract or not was a question finally settled in the Appellate Court. The objection that the contract is void because there was no previous appropriation to pay for the expense incurred under it is of no force. It does not appear from what appropriation the cost of the new dock or of the building of the vault was paid for, nor even what they cost. The whole work being necessitated by the building of the new bridge, it would have been proper to have paid for the same out of the appropriation which was made for the bridge. But by the contract the city also agreed to protect and indemnify the appellee from and against all damages to its building, or the contents thereof, which might result from the change of the dock line, or the operations of the city, its agents, contractors or employees, in the construction of the new dock. That the city would have been liable to appellee in an action on the case for doing this work in an unskillful manner, by which appellee would have been damaged, is settled. (City of Chicago v. Seben, 165 Ill. 371, and cases cited.) It was its duty, before entering upon the proposed work.of widening the river and constructing the bridge at this point, to take into consideration the situation of appellee’s mill and the danger to which it would be exposed by the making of these improvements. In so far as the city, by its contract, undertakes to indemnify the appellee for its tortious acts, we see no reason why such contract should not be binding upon it. No damages are sought to be recovered in this action for anything but the results of the unskillful manner in which it was claimed this work was done. It is strenuously insisted that evidence was admitted which was not competent under the averments of the declaration and the terms of the contract. The declaration counts on damages caused by the operation of the city, its agents, contractors and employees, in making a change of the dock line and in the construction of a new dock. Evidence was admitted as to the effect upon appellee’s mill of the work done at the center pier of the bridge and in dredging out the river, and in and about the taking out of the old abutment and of the dredging and piling done in respect to the same. All of the work done was made necessary by the building of the new bridge. The condemnation proceedings were instituted for the purpose of acquiring sufficient land for widening the river and for building the new bridge. The subsequent agreement with appellee was a part of the proceedings necessary for the work contemplated. The construction of the new dock and of the vault under Madison street thereby became part of the work necessary to the widening of the river and building of the new bridge. That the city contemplated doing this work is recited in one of the preambles of the contract. The change of the dock line and construction of a new dock were thus parts of the whole improvement undertaken by the city, and were so intimately connected and related that it behooved the city officials in charge of the work to take into consideration the inter-relation of the several parts of the work, and to be guided in their manner of doing each part by the effect it would have on the other parts of the entire work. Whether the pulling out of the piles under the old center pier of the bridge and the dredging of the river at that point would or did have any effect on the work on the new dock or on appellee’s mill was strongly contested at the trial, the witnesses testifying to diametrically opposite opinions. Likewise as to the effect of pulling out the piles under the old abutment, the dredging back of Madison street for about eighteen feet and the putting in of new piles. As all of this work was done practically at about the same time that the new dock was constructed, it was a proper subject of inquiry. There was no error in allowing evidence to be given of what was done by the city engineer to strengthen the building when his attention was called to the fact that its walls were beginning to crack. It only showed, at most, that in the opinion of the city engineer something ought to be done to prevent further damage to the mill. Objections are made to the hypothetical questions asked the various experts as to the cause of the settling" of appellee’s mill building, on the ground they did not state the facts fully. We think these questions stated the facts fairly, and the appellant, on cross-examination, drew from these experts the reasons on which they based their opinions, thus enabling the jury to judge how much weight to give to them. We have carefully examined the instructions given and refused by the court and find no error in the rulings of .the court thereon. Most of the refused instructions asked by appellant were based on its theory that the contract was illegal and invalid. They were properly refused. Appellant’s theory that the evidence showed that the damage to appellee’s building was due to internal causes was fully presented by the instructions given. Special objection is urged as to the court’s modification of the appellant’s nineteenth instruction. While this modification is perhaps open to the objection urged against it, it could have done appellant no harm, as the evidence showed that appellee did not rely on the fact that the engineer had had some rods put in to strengthen the mill, but continued to and did put in more rods itself to strengthen the building. There are other objections made to the evidence and to other points, which we have considered, but do not think it necessary to go over them in detail. They were properly disposed of by the Appellate Court. The judgment will be affirmed. Judgment affirmed. Mr. Justice Magruder does not concur.