APPEAL from the Appellate Court for the Second District;
heard in that court on appeal from the Circuit Court of Winnebago
County; the Hon. WILLIAM R. DUSHER, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 15, 1950.
This is an appeal from the Appellate Court, Second District, which reversed a judgment for the plaintiff in the circuit court of Winnebago County. The cause is presented here on a certificate of importance from the Appellate Court.
This suit was brought by the Illinois National Bank & Trust Company of Rockford, trustee for Joseph Olson, beneficiary, hereinafter referred to as plaintiff, against the city of Rockford, designated as defendant herein, to recover damages resulting from the loss of use of property abutting a public alley, which loss of use was caused by the failure of the defendant to keep the alley open for public vehicular travel.
In the main, the material facts are uncontroverted. It appears that on August 3, 1896, the defendant city adopted an ordinance opening and dedicating a public alley ten feet wide extending from Wyman Street eastward to the west bank of the Rock River. The ordinance recites that the alley shall be kept free and clear from encroachments and obstructions which will in any manner militate against its use as a public alley.
The complaint and proof herein indicate that the plaintiff owns a vacant lot on this public alley, extending southward 66 feet from the south border of the alley and being 43 1/2 feet in width. The west line of the lot is 98 feet east of the east side of Wyman Street and 135 feet west of the west bank of the Rock River. The east end of the alley terminates at the west bank of the Rock River. Trucks apparently use the river bank as a means of ingress or egress into the alley from the east. The only normal entrance and exit of the alley would be by way of an entrance through Wyman Street.
The plaintiff's lot is bounded on the south by a vacant lot owned by the defendant city, which extends to Elm Street, but this lot is leased as a parking lot and the lessees refuse access to the plaintiff from Elm Street. In 1930, the defendant city raised the grade of and paved Wyman Street, leaving the alley approximately five feet below the grade, rendering it useless and unavailable for public vehicular travel. Thus, the plaintiff's land is an island surrounded by other properties, which do not allow vehicles to reach or leave it. In 1946 plaintiff and others requested the city to open and improve the alley to provide access, which request was ignored.
It is also shown by the record that the plaintiff acquired his lot by deeds from various heirs of the original owner, all of which were recorded August 6, 1944. The alley was at grade with Wyman Street until 1930, but when Wyman Street was widened and paved, there was a drop of fifty-five inches from the street to the alley entrance and the alley could not thereafter be used for vehicular traffic, although there were stairs for pedestrian use. Mr. Olson, who was the beneficiary of the trust of which the plaintiff bank was trustee, testified that he was in the parking business and that there was no access to his property for vehicular traffic. He further testified he could have rented the property for ten individual car stalls, at six dollars per month, from August 16, 1944, until November 1, 1947, and thereafter at ten dollars per stall.
By this action the plaintiff sought damages because the city wrongfully permitted the alley to be and remain obstructed and inaccessible to the plaintiff, and plaintiff has been wholly prevented from using the lot for any purpose. The complaint also instituted a separate equity action seeking an injunction against the city to prevent it from permitting the alley to remain unusable for public travel. The count in equity was dismissed.
To the allegations of the complaint, the defendant filed a motion to strike and dismiss the suit on the grounds that the suit was not filed within five years and hence was barred by the five-year Statute of Limitations. This motion was denied. The defendant then filed an answer denying the basic allegations of the complaint, setting up that pedestrian travel to and in the alley has not been blocked since 1930, and also again pleading the Statute of Limitations.
The defendant offered in evidence special assessment proceedings involving the opening and widening of Wyman Street, but they were excluded by the trial court. The city also introduced tax and special assessment proceedings involving the property to show the sale price for the property. Testimony was taken as to the cost of the property when purchased by Olson. On the basis of the evidence received, the trial court found for the plaintiff in the sum of $3410 for the loss of parking space.
The Appellate Court reversed the judgment of the trial court on the grounds that the improvement to Wyman Street was a permanent improvement, the damage from which could have been ascertained on the date of the improvement of the street. Under those circumstances, the Appellate Court, under the law, held that the plaintiff's action was barred by the five-year Statute of Limitations. The Appellate Court distinguished the cases cited by the plaintiff, and held that when the plaintiff bought the property in question in 1944, it knew the condition of the alley and knew that the alley was closed to vehicular traffic.
The defendant city again urges upon this court the Statute of Limitations; (Ill. Rev. Stat. 1947, chap. 83, par. 16,) that the change of grade of Wyman Street is the gist of the action here; that the plaintiff did not own the property abutting the alley when improvement was made in 1930; the special assessment proceeding afforded an opportunity to determine the damage to the land acquired by the plaintiff-appellant; and the measure of damages used by the trial court was erroneous.
The plaintiff below, appellant here, argues that the gist of the action is not the damage caused by the widening and change of grade of Wyman Street, but is the refusal of the city of Rockford to keep the alley free from obstruction and open for public travel of every character. Plaintiff predicates his action upon the theory that the city of Rockford owes the duty to keep the alley in question in a reasonably safe, usable condition, free of obstruction; that the 55-inch declivity existing at the west end of the alley constitutes an obstruction rendering vehicular traffic to and from plaintiff's premises impossible, and that the continued failure of the defendant city to repair, open or maintain the alley for vehicular traffic wrongfully deprives the plaintiff of the use or enjoyment of his premises. It ...