Lefkovitz v. City of Chicago

Mr. Justice Hand delivered the opinion of the court: It is not alleged in the declaration that the obstructions complained of were permanent in their character or that they were negligently constructed. Neither is the purpose for which they were constructed shown, except it is averred in one count that they were not constructed for the purpose of grading or improving said street or for any purpose connected with the construction or improvement of said street. The law is well settled in this State that a city, or a person acting for a city, may temporarily obstruct a public street so far as it may be necessary to enable the city or its agent to construct a public improvement, such as a tunnel, a sewer, a water supply-pipe, etc., without becoming liable for damages to an abutting owner upon the street. (City of Chicago v. Rumsey, 87 Ill. 348; Barrows v. City of Sycamore, 150 id. 588; Osgood v. City of Chicago, 154 id. 194; Northern Transportation Co. v. City of Chicago, 99 U. S 635.) In Osgood v. City of Chicago, supra, which was an action on the case brought by an abutting owner to recover damages in consequence of the construction of the Jackson street bridge and viaduct, and the approaches thereto, upon Canal street, in the city of Chicago, on page 198, it was said: “The claim set up for loss of rent by reason of obstructions to access to and egress from the building during the progress of the work cannot be sustained. That is not damage to property not taken, within the meaning of the constitution, but merely a burthen incidentally imposed upon private property adjacent to a public work and without which such improvements can seldom be made.” The main contention of the appellant, however, seems to be that the obstructions were allowed to remain an unreasonable length of time in the street in front of her property and that the defendants should be held liable on that ground. The defect in her declaration in that regard is this: that it does not appear therefrom why said obstructions were placed in the street by the city or its agent, and the court is unable to determine from the declaration that said obstructions have been maintained in the street for an unreasonable time. The construction of a tunnel under the Chicago river in a public street in the city of Chicago, or the construction in a public street of a tunnel through which to obtain a water supply for the city of Chicago, might require an obstruction of a street for more than three years, while another public improvement in a street, like the repair of a water main, might readily be completed within one day. “Temporary,” as used in this connection, is the opposite of “permanent,” and means a period of time commensurate with the reasonable prosecution of the work which is being carried on. Every intendment is against the pleader, and in the absence of an averment in the declaration as to the character of the work in which the city or its agent is engaged, this court is bound to presume that the defendants were engaged in a lawful undertaking and that they were acting with reasonable dispatch in putting in the improvement, and that the obstruction in the street would not be maintained therein an unreasonable length of time by the city or by its permission. The constitution, as we have seen, provides no remedy in the way of damages to an abutting owner for the temporary obstruction of a public street while a public improvement is being constructed in the street. Had the declaration averred the undertaking in which the city was engaged,—that is, the character of public improvement which it was putting in,—and shown that the improvement had been completed or abandoned, or averred other facts from which the conclusion of law could legitimately have been drawn that the obstruction complained of had been maintained in the street an unreasonable length of time, it might legally have followed that the plaintiff had a legal claim for damages against the city and its agents for maintaining in the street, in front of her premises, the said obstructions. The averment that said obstructions were wrongfully placed in the street by the defendants and that they had maintained them therein for an unreasonable length of time was not the averment of a fact or facts but the averment of the mere conclusion of the pleader. Neither the declaration, nor any count thereof, averred a state of facts which showed the defendants were liable in damages to the plaintiff for obstructing the street or for maintaining in the street the obstructions complained of for an unreasonable length of time. The demurrer to the declaration was therefore properly sustained. The judgment of the Appellate Court will be affirmed. Judgment affirmed.