APPEAL from the Circuit Court of Du Page County; the Hon. BERT
E. RATHJE, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiff-petitioner, after passing an ordinance for the construction of sidewalks along various streets, petitioned the court for an order levying a special assessment for the costs involved. Defendant-objectors filed objections which the court overruled. There being no stay order entered pending this appeal, the sidewalks were installed.
Defendants urge that the court erred: (1) when it failed to consider evidence on whether the sidewalks were necessary and, (2) when it found the sidewalks bestowed a private benefit to their property.
That portion of the sidewalk project here pertinent extends for an approximate three blocks east of Main Street along the north side of Elm Street and there dead-ends at the wall of a subdivision; defendants' properties are in the easternmost section thereof. At the time of hearing, sidewalks were already installed on the properties adjoining defendants to the west and a walk was proposed for the south side of the street. At trial, it was defendants' position that there was no general public need for a sidewalk in front of their properties due to the fact that its use would stop (or start) at the subdivision wall and because a sidewalk was already proposed for the south side of the street. It was their further position that no private benefit would inure to their properties and that, for these reasons, the total cost should be borne by the plaintiff.
An initial hearing, in the nature of a pretrial conference, was had between the attorneys for the litigants and the judge. The apparent purpose was to advise the court of the objections raised by the pleadings. When informed that the first objection created an issue of necessity, the judge expressed a view that the question of necessity was a legislative determination not subject to review by the court. There followed this dialogue:
"Attorney [for defendants]: Now they [plaintiffs] have limited us to one issue, and I think this is improper.
Court: If you have any others, I certainly didn't mean to shut you off.
Attorney: I certainly do.
Court: I beg your pardon. I thought you were through. I didn't mean to jump the gun.
Attorney: One of my other objections has been to the public benefit.
Court: That I didn't know.
Attorney: My other objection has been to the cost of the improvements exceeding the value of them.
Court: That's fair enough. We will set that down for hearing."
Ten days later the case was tried. The plaintiff called no witnesses. Defendants introduced the testimony of just one witness, a real estate broker and appraiser who qualified as an expert. It was his opinion that the defendants' properties would not derive any benefit from the installation of the sidewalk. His opinion was based upon general character of the properties, "the fact they have existed for many years without sidewalks, the need for people to use those sidewalks, and the appearance or the change in esthetics that might occur as a result of the improvement." The witness than stated that the sidewalk in question would either begin or end at the easterly end of one of the defendants properties, that there were sidewalks ...