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Salem Nat. Bank v. City of Salem

APRIL 11, 1964.

THE SALEM NATIONAL BANK, PLAINTIFF-APPELLANT,

v.

THE CITY OF SALEM, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Marion County; the Hon. DANIEL DAILEY, Judge, presiding. Judgment affirmed.

WRIGHT, JUSTICE.

This is an appeal from an order dismissing a declaratory judgment action whereby the plaintiff, The Salem National Bank, seeks a determination of its rights to install driveways for vehicular traffic to cross public sidewalks adjacent to its property and within the business district of the defendant, The City of Salem.

The Salem National Bank owns and occupies for banking business, a building located on the southwest corner of the intersection of Broadway and Main Streets in the City of Salem, Illinois. Broadway leads north and south and is Illinois State Route No. 37. Main Street leads east and west and is Illinois State Route No. 50. The intersection is one of the main intersections in the City of Salem and is one of the busiest.

The plaintiff has purchased two buildings adjacent to its bank building on the west and south and proposes to remove all or a part of said buildings for the purpose of providing drive-in banking facilities to its customers at its present bank building. It is planned to have vehicles enter the proposed driveway from West Main Street across the sidewalk on the south side of West Main, pass around the present bank building on the west and south and to exit onto South Broadway by passing across the sidewalk on the west side of South Broadway. The sidewalks over which the proposed entrance driveway and the exit driveway would pass are fourteen feet in width.

Prior to the controversy here involved, the City of Salem and the State of Illinois, entered into a joint resolution to resurface certain portions of Broadway and Main Streets in the area adjacent to plaintiff's building, and the city agreed not to allow the curbs to be cut or driveways or entrances made without the approval of the State of Illinois.

The plaintiff applied to the State of Illinois, Department of Public Works and Buildings, Division of Highways, for a permit to cut the curbs at the location of the proposed driveways and received a letter from the chief engineer of the Division of Highways advising that a permit would be issued upon the approval of the City of Salem. Plaintiff presented its application to the City Manager of defendant, for his approval, and upon instructions from the Mayor and the City Council, the City Manager refused to sign or approve the permit.

The plaintiff admits that at no time did it make application for a building permit provided for under City Ordinance No. 24.07 nor did it submit any detailed plans and specifications to the Inspector of Buildings for his approval as provided by this ordinance.

The defendant argues that the trial court properly exercised its discretionary power based upon the evidence in denying the relief prayed and dismissing the complaint for declaratory judgment.

Ordinance No. 7.18 of the defendant, City of Salem, provides:

"No person shall obstruct or endanger, or place, or permit anything to obstruct or endanger, the free passage or proper use of the public of any street, sidewalk, crosswalk, or entrance to any church, theater, hotel, school, or public building, except as may be permitted under this chapter."

The lower court, after hearing testimony of witnesses and examining documentary evidence, dismissed plaintiff's complaint for want of equity and found: (1) That it was the defendant City's duty to keep the sidewalks safe for the public and pedestrian traffic; (2) That plaintiff bank and the proposed driveways were located at an intersection of two main city streets which were also State highway No. 37 and U.S. highway No. 50 and that such intersection was as busy, if not the busiest intersection in town; (3) That it was the duty of the City Council to consider the health, welfare, comfort and safety of the general public; (4) That said Council did not act unreasonably, oppressively or arbitrarily in denying plaintiff's application; (5) That the plaintiff does not have a right per se to construct driveways across public sidewalks without the consent and approval of the Mayor and City Council; (6) That the Mayor and City Council had a right to refuse plaintiff's application under the authority of Ordinance 7.18; (7) That from the evidence in this cause the equities were with the City of Salem and against the plaintiff.

[1-3] There can be no question that under the provisions of the Illinois Municipal Code, the streets and sidewalks of a city are held in trust by the city for the use of the public for purposes of travel and as a means of access to and egress from property abutting thereon. City of Elmhurst v. Buettgen, 394 Ill. 248, 68 N.E.2d 278. The primary right to the use of the streets and sidewalks of a city for the purposes of travel belongs to the general public and not to the abutting property owners alone. The general public has the paramount right to the use of the streets and sidewalks but the abutting property owner has the right to make all proper and reasonable use of the sidewalks not inconsistent with the paramount right of the public. City of Elmhurst v. Buettgen, supra.

The right of access of a property owner to the public streets adjoining his property is a valuable property right which cannot be taken away without just compensation. R.G. Lydy, Inc. v. City of Chicago, 356 Ill. 230, 190 N.E. 273; Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 140 N.E.2d 289.

Cities created by authority of the legislature derive all of their rights and powers from the source of their creation. People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, 111 N.E.2d 626. However, cities also have such implied powers as are necessarily incident to ...


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