Barrows v. City of Sycamore

Appellate Court of Illinois

Barrows v. City of Sycamore

49 Ill. App. 590, 1893 Ill. App. LEXIS 100

DecidedDecember 12, 1893

StatusPublished

This text of 49 Ill. App. 590 (Barrows v. City of Sycamore) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barrows v. City of Sycamore, 49 Ill. App. 590, 1893 Ill. App. LEXIS 100 (Ill. Ct. App. 1893).

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Opinion

Opinion of the Court,

Lacet, J.

This was an action on the case brought by the appellant • against appellee, to recover damages to her residence and hotel buildings on a lot owned by her for some time before the building of the structure complained of, by reason of the wrongful erection of a stand pipe and water tower within fifty-six and one-half feet from the hotel building and near her dwelling.

The declaration consists of four counts, to each of which the appellee demurred, and the court sustained the demurrer, and the appellant abiding her declaration, the court gave judgment against the appellant for costs.

From this judgment, this appeal is taken.

This brings up the question of the sufficiency of the declation. It consists of four counts, and in substance makes the following charges, to wit: The first count charges and avers that the stand pipe or water tower was wrongfully constructed in the public streets of appellee, and was one hundred and thirty-five feet high, and situated fifty-six and one-half feet from the hotel; that it is of five feet in height, steel and iron plates riveted together, the first' course of plates being nine-sixteenths of an inch in thickness, diminishing toward the top of the stand pipe to three-sixteenths of an inch, and capable of holding about 179,000 gallons of water; that by reason of the fact that the water tower causes constant apprehension that it may fall over on the hotel building and by its great weight destroy it, or that it might blow over on the property or burst and flood the same, greatly depreciates its value for hotel and residence purposes, and especially its market value, and claims damages to the amount of $3,000. The second and third counts are essentially the same as the first, and the fourth count charges that on account of the gfeat height of the tower, it obstructs the light of the hotel building, and especially the parlor and sitting-room, in the southwest corner thereof, and obstructs the view of the hotel building, casts a shadow upon it and makes its appearance unsightly, and otherwise injuriously affects the premises, and makes the premises less convenient and comfortable for residence and hotel purposes.

"We are of the opinion that the court below decided the questions raised by the demurrer correctly. "While the counts, or some of them, charge that the tower was dangerous and liable to fall, none of them show, by averments, any negligence or improper construction of it, by appellee, or even a weakness of it, or that there was any defect in the material out of which it was constructed, or why it was likely to fall. The averments are mere conclusions, unwarranted by anything contained in the declaration, except that the tower was high. This is not sufficient. As to fourth count, neither unsightliness nor casting a shadow thereby, causing damages, is ground for recovery. The mere fact that the property was depreciated in value, is not ground for action. The damages arising from the causes alleged are what in law are called damnum absque iwjuria.

The Supreme Court says that “ under our statute cities are given exclusive control of all streets and alleys within the corporate limits. The fee of the streets is in the corporation and the dominion over them is as absolute as that of the owner of other lands.” C. & V. R. R. Co. v. People, 92 Ill. 170; City of Quincy v. Bull, 106 Ill. 337; 2 Dillon on Municipal Corporations, 2d Ed., 551. Sustaining our position on the question of damages, see Rigney v. City of Chicago, 102 Ill. 64; Shawneetown v. Mason, 82 Ill. 337; Lewis on Eminent Domain, 236. There is no averment in the declaration that the water tower is not such a structure that might be put in the streets. In some States it has been held that such structures may be placed in the streets. West v. Bancroft, 32 Vt. 367.

We think the declaration fails to show a cause of action. The judgment of the court below is affirmed.

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Opinion of the Court,

Lacet, J.

This was an action on the case brought by the appellant • against appellee, to recover damages to her residence and hotel buildings on a lot owned by her for some time before the building of the structure complained of, by reason of the wrongful erection of a stand pipe and water tower within fifty-six and one-half feet from the hotel building and near her dwelling.

The declaration consists of four counts, to each of which the appellee demurred, and the court sustained the demurrer, and the appellant abiding her declaration, the court gave judgment against the appellant for costs.

From this judgment, this appeal is taken.

This brings up the question of the sufficiency of the declation. It consists of four counts, and in substance makes the following charges, to wit: The first count charges and avers that the stand pipe or water tower was wrongfully constructed in the public streets of appellee, and was one hundred and thirty-five feet high, and situated fifty-six and one-half feet from the hotel; that it is of five feet in height, steel and iron plates riveted together, the first' course of plates being nine-sixteenths of an inch in thickness, diminishing toward the top of the stand pipe to three-sixteenths of an inch, and capable of holding about 179,000 gallons of water; that by reason of the fact that the water tower causes constant apprehension that it may fall over on the hotel building and by its great weight destroy it, or that it might blow over on the property or burst and flood the same, greatly depreciates its value for hotel and residence purposes, and especially its market value, and claims damages to the amount of $3,000. The second and third counts are essentially the same as the first, and the fourth count charges that on account of the gfeat height of the tower, it obstructs the light of the hotel building, and especially the parlor and sitting-room, in the southwest corner thereof, and obstructs the view of the hotel building, casts a shadow upon it and makes its appearance unsightly, and otherwise injuriously affects the premises, and makes the premises less convenient and comfortable for residence and hotel purposes.

"We are of the opinion that the court below decided the questions raised by the demurrer correctly. "While the counts, or some of them, charge that the tower was dangerous and liable to fall, none of them show, by averments, any negligence or improper construction of it, by appellee, or even a weakness of it, or that there was any defect in the material out of which it was constructed, or why it was likely to fall. The averments are mere conclusions, unwarranted by anything contained in the declaration, except that the tower was high. This is not sufficient. As to fourth count, neither unsightliness nor casting a shadow thereby, causing damages, is ground for recovery. The mere fact that the property was depreciated in value, is not ground for action. The damages arising from the causes alleged are what in law are called damnum absque iwjuria.

The Supreme Court says that “ under our statute cities are given exclusive control of all streets and alleys within the corporate limits. The fee of the streets is in the corporation and the dominion over them is as absolute as that of the owner of other lands.” C. & V. R. R. Co. v. People, 92 Ill. 170; City of Quincy v. Bull, 106 Ill. 337; 2 Dillon on Municipal Corporations, 2d Ed., 551. Sustaining our position on the question of damages, see Rigney v. City of Chicago, 102 Ill. 64; Shawneetown v. Mason, 82 Ill. 337; Lewis on Eminent Domain, 236. There is no averment in the declaration that the water tower is not such a structure that might be put in the streets. In some States it has been held that such structures may be placed in the streets. West v. Bancroft, 32 Vt. 367.

We think the declaration fails to show a cause of action. The judgment of the court below is affirmed.

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