APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
DOUGHERTY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The village of Riverdale, as defendant-appellant, appeals directly to this court from an order of the circuit court of Cook County directing a writ of mandamus to issue compelling the village to issue certain building permits to plaintiffs and to permit plaintiffs to install certain combination storm and sanitary sewers.
The trial judge has certified that the validity of a village ordinance is involved and that the importance of the question requires an appeal directly to this court.
There is no dispute as to any material factual issue. Plaintiffs are the owners of a large subdivision consisting of ten square blocks with 238 homesites in the village of Riverdale. The village is situated immediately adjacent to the city of Chicago. Blue Island-Riverdale Road, or 136th Street, forms the north boundary of the subdivison, and 138th Street forms the south boundary, with six north-south streets and 137th Street laid out, but there are no improvements of any kind on the streets and no houses presently in the subdivision.
In 1926, while the subject land was farm land, the village of Riverdale instituted and carried through a special assessment proceeding for the installation of a combination storm-water and sanitary sewer on 138th Street and sewers in other portions of the village connecting therewith. Such proceeding was completed in compliance with the law and a final order of confirmation entered after the certificate of cost and completion had been filed. The special assessment ordinance created a drainage district and the land here involved was included therein. Such land, which was then farm land but within the village limits, had a special assessment of $18,286.13 levied against it, of which amount $3,610.93 applied to that portion of the land now involved. The full amount of the assessment has heretofore been paid.
Section 2 of the 1926 special assessment ordinance contained a clause reading as follows: "The owners and occupants of the land, pieces and parcels of land lying within such drainage district hereinbefore described shall at all times hereafter be entitled to the use of and the benefits of the sewers provided by this ordinance. Right, permission, privilege and authority are hereby given and granted to the present and future owners and occupants of the land within such drainage district to open and connect all ditches and sewers which now exist or may hereafter be constructed within said district into and with the sewers described in this ordinance." The sewer built pursuant to such ordinance is a combination drain-water or storm sewer and sanitary sewer, situated on 138th Street adjoining plaintiffs' property.
In 1929, after installation of the sewer and completion of the special assessment proceeding, a plat of the subdivision covering the property in question was duly filed and recorded. However, the property was then used for farming purposes only and has continued to be used for such purposes or to stand idle to the present time.
In 1952 the village of Riverdale duly enacted an ordinance pursuant to power granted by the Illinois legislature in 1949 (Ill. Rev. Stat. 1949, chap. 24, par. 23-70.1) whereby the construction of a residence building was prohibited except on a street improved with water, sewer and pavement.
Plaintiffs seek to compel the issuance of 42 permits to construct residence buildings in the subdivision. The plans and specifications for these buildings comply with the building ordinances of the village and the plaintiffs have paid or offered to pay the necessary fees in connection therewith. All of the sites on which plaintiffs seek to build these 42 residence buildings are located on streets which at present have no pavement, no water, no sidewalks, and no sewers of any kind. All are on streets lying north of 138th Street, which street has a pavement and a sewer and which street is the southerly boundary of plaintiffs' subdivision.
Plaintiffs have also requested the right, and seek to compel the granting of permission to connect to the existing combination storm and sanitary sewer certain lateral combination storm and sanitary sewers to be constructed in the subdivision at plaintiffs' cost, which laterals are to service the newly constructed residences.
In 1956 plaintiffs applied to the village for permission to install a separate sanitary sewer system in the subdivision to connect with the 138th Street sewer. At the same time they applied for permission to install a separate storm-water sewer with a different outlet. Such plans were approved by the village except for the proposed storm sewer outlet. These were the only plans or specifications for a sewer system to serve the subdivision before the court at the trial. No plans or specifications for a combined storm and sanitary sewer system were before the court.
The sewer on 138th Street and other sewers in the village now flood occasionally, particularly in time of heavy rains, and are carrying about their full load. In recent years, and since the inception of this litigation up to the time of trial, permits have been issued by the village to persons other than plaintiffs for the construction of residences to be serviced by the combination sewer on 138th Street, all on lines installed as part of the sewage system in 1926.
The village refused to issue the building permits in question because of the prohibition contained in the 1952 village ordinance. It refuses permission to construct a combination storm and sanitary sewer flowing into the 138th Street combination sewer but will permit a sanitary sewer to be so constructed if other provision is made for storm-water drainage.
Plaintiffs' position is that the 1926 special assessment ordinance and proceedings thereunder granted an absolute right to the owners and occupants of the land assessed, to the use of the improvement under the circumstances here in evidence, that the 1952 village ...