APPEAL from the Circuit Court of Franklin County; the Hon.
DAVID L. UNDERWOOD, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, L.E. Davis, d/b/a Holiday Inn of Benton, appeals from the judgment of the Circuit Court of Franklin County awarding the plaintiff, Central Illinois Public Service Company (C.I.P.S.), $999.99 damages for expenses incurred in the relocation of its gas line from the defendant's construction site to a public street. Prior to its relocation, the gas line lay beneath an alley that had been vacated by the village of West City in 1965.
The parties have briefed and argued the issue of whether the defendant's construction of a building over the gas main impermissibly interfered with C.I.P.S.' access to and maintenance of the pipeline, thereby entitling C.I.P.S. to recover relocation expenses. However, we must initially resolve the question of whether the ordinance vacating the alley effectively reserved to the village the use of the vacated alley for maintenance of a public utility.
The alley was included in property dedicated to public use in a real estate development in West City. In 1948, the village passed an ordinance granting to the Illinois Electric & Gas Company and its assigns the right to sell gas and lay, maintain, and operate a system of gas mains, service pipes, and facilities for the distribution of gas "* * * in, under, across, upon and along all streets, avenues, alleys and public places" within West City for a period of 30 years.
In 1962, Illinois Electric & Gas Company assigned to C.I.P.S. all rights under the above ordinance. In 1964, C.I.P.S. installed 163 feet of two-inch gas main in the alley in question.
In 1965, the village passed an ordinance that declared the alley vacated, "* * * provided, however, that the Village reserve unto itself the right to use said alleyway, insofar as it is necessary to continue and maintain any public utility * * *."
A 1970 ordinance granted C.I.P.S. the authority to construct, operate, and maintain gas and electric utilities in the streets, public ways, and public property of the village for 55 years.
In 1977, the defendant had begun construction of an addition to his motel when the gas line was discovered. Defendant notified C.I.P.S. by telephone. In a letter to defendant, Ron Edmonds, district superintendent of C.I.P.S., stated that C.I.P.S. had an easement for the gas line, that construction of the addition over the line would create an unsafe condition, that the line would have to be relocated at the defendant's expense, and that electric service would not be connected until the gas line was moved. Defendant wrote that he would pay for the relocation if C.I.P.S. could demonstrate an easement interest, noting that his attorney had found none in the title abstracts to the property. Edmonds responded that the easement was provided by virtue of the "franchise" granted by the village to C.I.P.S. for the use of public streets and alleys to maintain the gas distribution system. Edmonds stated that the gas line was in a dedicated alley. C.I.P.S. subsequently removed the line to a public street and billed the defendant for the expenses involved.
At trial, Edmonds testified that 60 feet of gas line would have been covered by the building. He stated that the line was part of the main distribution system and that C.I.P.S. allowed no construction over mains. Both Edmonds and Darrel Smits, an engineer employed as district gas operation supervisor for C.I.P.S., testified that there would be no practical way to safely maintain and repair the line under the building.
Defendant testified that he acquired the Holiday Inn of Benton in 1971. When the gas line was discovered during the construction in 1977, he had been unaware of any vacated alleys or streets in the vicinity. He had been able to obtain a building permit from the village. After corresponding with Edmonds, he apparently inspected the ordinances described above. However, he saw nothing actually stating that C.I.P.S. had an easement, and he refused to pay for the relocation. He had agreed in his letter to pay for the relocation if C.I.P.S. would send him a copy of the easement because he had been told that electric service would be denied if he did not pay.
1 In general, a municipality is granted many powers over streets and public ways. (Ill. Rev. Stat. 1977, ch. 24, par. 11-80-2 et seq.) Among these are the power to regulate the openings in streets and other municipal property for the laying, building, repairing, and removing of gas mains and pipes. Ill. Rev. Stat. 1977, ch. 24, par. 11-80-7.
A municipality is also granted the authority to vacate a street or alley, or part thereof, by ordinance where the public interest is served. (Ill. Rev. Stat. 1977, ch. 24, par. 11-91-1.) In the instant case, the village of West City enacted an ordinance vacating a part of an alley and reserving to itself the right to use the alley to continue to maintain a public utility. The question is presented, therefore, whether the village could validly create this reservation.
In People ex rel. Greer v. City of Chicago (1910), 154 Ill. App. 578, a city's attempt to reserve the right to maintain sewer and water pipes in vacating a street and two alleys was held to be unauthorized by law and invalid. In St. Clair Housing Authority v. Southwestern Bell Telephone Co. (1944), 387 Ill. 180, 56 N.E.2d 357, the court left undecided a similar issue, and remanded to allow the city to be made a party to the suit.
However, in 1945 the legislature amended the vacation statute to allow reservation of certain rights concerning public service facilities. (Ill. Ann. Stat., ch. 24, par. 11-91-1, Historical Note, at 495 (Smith-Hurd 1962).) The current version ...