APPEAL from the Circuit Court of Morgan County; the Hon. L.E.
WILHITE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1952.
Defendants appealed to the Appellate Court for the Third District from a declaratory judgment entered by the circuit court of Morgan County in favor of the plaintiff, city of Jacksonville, where the trial court held that a certain strip of ground approximately 21 1/2 feet wide was owned in fee simple by the city of Jacksonville and was not part of any street or alley of the city of Jacksonville; that the city of Jacksonville had power and authority to sell said strip of ground under sections 59-1 and 59-2 of the Revised Cities and Villages Act; (Ill. Rev. Stat. 1949, chap. 24, pars. 59-1 and 59-2;) that sections 69-11 and 69-12 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1949, chap. 24, pars. 69-11 and 69-12) did not govern the disposition of said real estate; and that the defendants were entitled to a refund of special assessments and interest thereon paid by them or their predecessors in title in connection with certain special assessment proceedings on an alley widening project. The cause was originally appealed to the Appellate Court on the theory that the question involved was whether the property in litigation was or was not a street and governed by sections 69-11 and 69-12 of the Revised Cities and Villages Act. On motion of the city of Jacksonville, the Appellate Court transferred the cause to this court on the theory that a freehold was involved in a final determination of the matter. The defendants appeal from the portion of the judgment holding the plaintiff entitled to sell the tract in question to the highest bidder, and the plaintiff filed a cross appeal from that part of the judgment holding the defendants entitled to a refund of special assessment moneys and interest.
The city of Jacksonville acquired by warranty deed from J.W. Walton and wife, the then record owners, said deed being dated February 17, 1930, and duly recorded July 31, 1930, certain real estate situated in the business district of the city of Jacksonville and described as "that part of Lot 1, Block 16, City Addition beginning at the Southeast corner thereof, thence West 71 1/2 feet, thence North 176 feet, thence East 71 1/2 feet and thence South to the place of beginning in the City of Jacksonville, County of Morgan and State of Illinois." The city paid $4,070 for said property by check drawn on the general corporate funds of said city.
The defendants or their predecessors in title owned in fee simple the tract of land immediately west of and adjacent to that purchased by the city. The south boundary line of the defendants' property and of the property purchased by the city fronted on West College Avenue in the city of Jacksonville and the east property line of the property purchased by the city fronted on a 20-foot alley known as alley A in the city of Jacksonville.
Thereafter, on June 14, 1930, the city of Jacksonville passed a local improvement ordinance for the widening and paving of said alley A, which ordinance provided for condemning, among other tracts, the 71 1/2-foot tract previously acquired by the city and described above. Thereafter on July 18, 1930, a petition was filed in the county court of Morgan County to condemn the real estate necessary for the widening of alley A, to ascertain the compensation to be paid therefor, and to levy a special assessment to pay the costs thereof and of the improvement of alley A. In the report of commissioners in said proceeding in the county court the real estate previously acquired by the city was listed as owned and occupied by the city of Jacksonville and no damages were assessed against said property, it being shown as already acquired by the city. The commissioners also reported that they had investigated the lots, tracts and parcels abutting and adjoining the proposed improvement which would be benefited thereby and assessed the sum of $1620 against the real estate owned by defendants' predecessors in title and lying immediately west of the 71 1/2 feet previously acquired by the city. Thereafter, on September 5, 1930, a judgment in condemnation was entered in said county court in said proceeding, no judgment being entered against the city-owned property, and the special assessment against defendants' property as reported by the commissioners was also approved.
The defendants and their predecessors in title paid the $1620 special assessment imposed against their property and also interest on the deferred installments of said assessment in the amount of $937.81.
From the plats, surveys, plans and testimony introduced in evidence, it appears that the 20-foot alley A was extended to the west and improved a distance of 50 feet. There was thus left a tract of land 21 1/2 feet deep, title to which was in the city of Jacksonville, lying between the east line of defendants' property and the west street line of alley A as improved, which property was never developed as part of the street, never laid out in the plans as part of the street, and never used for street purposes. Said tract has a 21 1/2 foot frontage on West College Avenue and 176 foot frontage on alley A as improved.
Thereafter, on March 21, 1932, the city of Jacksonville adopted an ordinance providing for the sale of the tract in controversy to the highest and best bidder, which recited that title to the property purchased by the city on February 17, 1930, was duly acquired for use in connection with the widening and paving of alley A and that the city was making no use of the 21 1/2 feet thereof previously described, and that the council was of the opinion that said 21 1/2 feet was no longer necessary, appropriate or required for the use of the city. On several occasions thereafter, advertisement of such sale was made and bids therefor received, including bids from the defendant Lillian Padgett, but, for sundry reasons, the bids were never accepted or sale thereof consummated. On various occasions Lillian Padgett leased the strip of land from the city of Jacksonville.
On March 13, 1950, the city council of the city of Jacksonville duly adopted an ordinance directing the sale of the real estate here in question to the highest bidder pursuant to sections 59-1 and 59-2 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1949, chap. 24, pars. 59-1 and 59-2.) Thereafter, the provisions of said statute as to notice and publication were followed and bids were received and opened on April 3, 1950. The high bid for said property was $4250. The defendant Lillian Padgett submitted a bid of $1677.50 cash plus $2155.39 previously paid as a street assessment for the widening of alley A.
The defendants then claimed that the tract of land here in question, by virtue of the special assessment proceedings, became a part of the street and that therefore, the city was without power to sell said tract of real estate but could only dispose of same by vacating it to the defendant Lillian Padgett, as the adjoining property owner, under the provisions of sections 69-11 and 69-12 of the Revised Cities and Villages Act. (Ill. Rev. Stat. 1949, chap. 24, pars. 69-11 and 69-12.) The defendants employed attorneys to contest the right of the city to sell said real estate to the highest bidder and threatened suit against the city if it accepted the high bid for said real estate. Such contention of the defendants is based on the theory that the tract of real estate here in question was a part of the street and that, therefore, the city must either retain the same or vacate and abandon, fixing necessary compensation, if any, and permit the title to vest in the adjoining owner under sections 69-11 and 69-12 of the Revised Cities and Villages Act.
The defendants also asserted in the alternative that they were entitled to a refund of the full amount of the special assessment and interest paid by them and their predecessors in title in the event the city did sell the tract to the highest bidder. Under such circumstances, the city filed its complaint for declaratory judgment, and judgment was later entered as hereinbefore indicated.
Section 59-1 of the Revised Cities and Villages Act provides in substance that any city or village incorporated under any general or special law, which acquires or holds any real estate for any purpose whatsoever, excepting certain real estate not pertinent to the issues in the present case, has the power to convey the real estate when, in the opinion of the corporate authorities, the real estate is no longer necessary or appropriate, required for the use of, profitable to, or for the best interest of the city or village, such power to be exercised by an ordinance passed by three fourths of the aldermen or trustees of the municipality at any regular meeting or at any special meeting called for that purpose. Section 59-2 of the same statute contains provisions as to the contents of the ordinance for sale, to be adopted by the city, requirements for notice and publication, and directions as to the opening and acceptance of bids.
Section 69-11 of the Revised Cities and Villages Act in substance provides that whenever the corporate authorities of any municipality, whether incorporated by special act or under any general law, determine that the public interests will be subserved by vacating any street or alley or part thereof within their jurisdiction, they may vacate that street or alley or part thereof by an ordinance. The section then proceeds to specify the nature of and method of passing such an ordinance, authorizes such ordinance to provide for compensation to the city from abutting owners for the benefits accruing from such vacation, provides that the determination by the corporate authorities in such an ordinance of the nature of the public interest served is conclusive, and authorizes damages to be ascertained and paid if any result from such vacation. Section 69-12 of the same statute provides in substance that, except in cases where the deed or other instrument dedicating a street or alley or part thereof has expressly provided for a specific devolution of the title thereto upon abandonment or vacation thereof, whenever any street or alley or part thereof is vacated the title to the land within the ...