Espert v. City of Chicago

Mr. Justice Ricks delivered the opinion of the court: The only question presented in this case is whether appellant was entitled to have the fact taken into consideration that his mediate grantor, while the owner of the lands of appellant that were assessed for the expense of the condemnation proceeding for widening Forty-ninth street, when he platted and laid out the tract in question, dedicated or donated the half of the street lying adjacent to appellant’s property,—that is, whether, under the facts, he was entitled to the benefit of the provision of the second clause of section 17 of the Local Improvement act of June 14, 1897. (Hurd’s Stat. 1899, chap. 24, par, 523.) That section reads as follows: “In the assessment of damages and benefits for the opening of any street or alley it shall be lawful for such commissioners, in making such assessment, where part of the land to be laid out into such street or alley has been theretofore donated by any person or persons for such street or alley, to appraise the value of the land so donated, and to apply the value thereof, so far as the amount so appraised shall go, as an offset to the benefits assessed against the person or persons making such donation, or parties claiming under them, but nothing herein contained shall authorize any person or persons by whom such donation is made to claim from the city, village or town, the amount of such appraisement, except as an offset, as herein provided; and where the assessment is only for the widening of any street which may have been theretofore donated, either in whole or in part, to the public by the proprietors of the adjoining land, it shall also be lawful for said commissioners, in their discretion, to make such allowance therefor in their assessment of benefits as shall seem to them equitable and just; but in either such case they shall state in their report the amount of such allowance, and the same shall be subject to review, as the court shall direct.” Appellee contends that appellant is not so entitled, and says: “In order for the property owner to receive credit for lands theretofore dedicated for street purposes, it must be shown that such dedication was made in contemplation of the proposed improvement, and it must be part of the land laid out into such street or alley. The provision of the statute in this regard is not mandatory,”— citing Shurtleff v. City of Chicago, 190 Ill. 473. It will be observed by a reading of the section of the statute above, that the last provision of the act is, “but in either such case they shall state in their report the amount of such allowance, and the.same shall be subject to review, as the court shall direct.” We think this clause in the statute requires that the commission making the assessment shall, where the conditions exist pointed out by the statute,-—that is, the dedication or donation by the proprietor of a part of the street,—take that fact into consideration, and by the report of the assessment show what was done with reference to making any allowance therefor, otherwise the provision that it should be subject to review would be meaningless. In the case at bar the report of the assessment is silent upon the question, and from it it cannot be ascertained whether or not the commissioners making the assessment had any knowledge of the dedication of a part of the street by the former proprietor, and if they did, whether they exercised any discretion in the matter. • Such being the state of the assessment roll, appellant moved the court who appointed commissioners to make the assessment, to re-refer the.matter to the commission and to require it to take some action touching it. This motion was denied, and appellant then proceeded with the trial and offered to prove the dedication by the proprietor, his grantor, by the plat and other competent evidence. The court refused to allow this evidence to be heard. We do not think the Shurtleff case, above cited, does or was intended to cover the principle arising in this case. The case at bar was for widening the street at the very point where the dedication had been made. The Shurtleff case was under the first clause of the section for opening the street, and the portion of the street that was opened was some four or five blocks away from the portion of the street that was dedicated, and, as we read the opinion, we think it was applicable only to that case and the cases of that class. In the Shurtleff case the commissioners did exercise their discretion and refused to make any allowance, and on their report coming in the hearing was had before the court, at which the property owner was allowed to prove the dedication and the facts material to the maintenance of his rights, -and the court approved the report of the commission, and the case was brought to this court,—which was an entirely reverse state of the case to the one at bar.- Prior to 1897 no such provision as section 17, supra, existed in our statute, and therefore no dedication of a part of the street could have been made, in contemplation of the widening of the street, by adding- to the part dedicated, and with the expectation that the allowance would be made when such widening took place, in fixing" the amount of the assessment of the dedicating proprietor or his grantees, and to hold that such must be the construction of this statute would be to deprive all persons of the benefit of it who had made dedications or donations of parts of streets prior to the enactment of the law. Nor is the statute restrictive in its terms, but from its language seems to be of general application, and to be for the benefit alike of those who dedicated or donated either before or after its passage. Particular stress is laid by the appellee upon a single expression used in the opinion in the Shurtleff case, supra, id. est: “The facts do not bring appellant’s claim within the terms of the statute, which is intended to allow what a party gives towards a contemplated improvement in the way of land to be taken and used in opening a street as against benefits to his remaining property. ” And the argument is, that the donor must have had in mind the improvement that was to follow, and that he expected to have the benefit of a credit upon his assessment. As we have said, to so hold would deprive all persons who had, prior to 1897, dedicated their lands for such streets or parts of streets, of the benefit of the act. The immediate language following- the above quotation shows that such was not the holding of the court, for we further-said: “The statute only embraces land to be laid out into the street for the opening of which benefits are assessed, and it is not contended that any part of appellant’s property was to be laid out into the proposed street. His dedication was made in 1891 for reasons or upon considerations which were satisfactory to him at the time and for another part of the street several blocks away, and such dedication of property lying elsewhere is not covered by the statute.” And what was meant to be said there, and what the opinion does.hold, as we read it, is, that in that case the property claimed for was too remote from the proposed improvement. In the case at bar appellant’s grantor owned a certain five-acre tract, which he laid out in a block and a half, divided into lots, and designated certain streets. Appellant became the owner of lots 1, 2, 3, 19 and 29 in that plot. Lot 1 .lies parallel with and longitudinally to that part of Forty-ninth street which was dedicated and which is improved by widening by the proceeding at bar. Lots 2 and 3 lie, in their order, abutting lot 1. Lot 19 also lies along Forty-ninth street, but across Calumet avenue, from the point where the dedication had been made, and lot 29 lies in the same block but several lots away from Forty-ninth street. They were all assessed for benefits,—lot 1 at §750. Under this state of facts we hold that appellant was entitled to have the question of this dedication taken into consideration in fixing the amount that he was to be assessed for the improvement. While the statute says that the commissioners may, in their discretion, make such allowance, it also says that that discretion shall be subject to review by the courts, and therefore cannot mean that this exercise shall be an unreasoning or unreasonable one, or a total failure to even consider the matter. We think the superior court should have sent the commission back, upon appellant’s motion, to have considered the matter of his right to allowance, and amended its report in that regard, and if the report was adverse to appellant, should upon the final hearing have allowed testimony to have been heard in the court upon the question of the review of the action of the commission upon such allowance. We also take the view that this property was sufficiently adjacent to the proposed improvement, as it was a part of the tract from which the original dedication was made and was so proximate to it, as to have been taken into consideration upon the question of allowance. For the errors indicated the judgment is reversed and the cause remanded for such other and further proceeding as to law and justice shall appertain. Reversed and remanded.