Jurisdictional Statement — Horn v. Chicago

Supreme Court brief1950

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INDEX

Sussecr Inpex

Page

Statement as to jurisdiction A eS 1

Statutory provisions believed to sustain jurisdic-

AN eee Lia eae belie tiene ¢ os 1

a eS an wc os 3

The nature of the jcine 3

The leading facts ...... ie aes 3

Date of judgment sought to be rev iewed ....... 5

Law and argument on jurisdiction 5

Illinois Courts and Courts of all other states

universally hold that easements are prop-

erty and that their destruction constitutes

a taking of property 6

The same rule has been adhered to by this

Court 9

This Court has jurisdiction to take this case 13

The questions involved are substantial. . 15

The right to compensation for property

taken cannot be barred by a State... 19 }

This decision is but part of an erroneous

trend established at an early date which ’

has led to some unusual decisions and :

which become progressively more and ;

more difficult to correct by local courts 24 4

Stage of proceedings at which the federal :

questions were raised rreesy 32 ;

Conclusion ir = Fy 33

Appendix ‘‘A’’—Opinion of the Supreme Court of

Illinois Fee se ie 35 ;

Tasie or Cases Cirep

Aldis v. Union Elevated, 203 Ill. 507............... 8

Allen v. Chicago, 176 MN. 113.................. 36 i

Barker vy. St. Louis Co., 340 Mo. 986............ “ 17 4

Beachwood v. Farrell, 20 Pa. D. & C. 285. ...... 17

Begilors v. Ballerino, 111 Cal. 559..... 01... 9

Board vy. Dancy, 65 Miss. 335 17 '

Brand v. Union Elev. Co., 238 U. 8. 586, 59 L. Ed.

A eee en a Cee ines paces ike 21 ;

Breinig v. Allegheny County, 332 Pa. 474 9

—d784

ii INDEX

Brunotte v. DeWeitt, 360 Ill. 518.................. t7

Carter v. Ridge Turnpike, 208 Pa.565.............. 17

C. B. € Q. Ry. v. Chicago, 166 U. S. 226..... heer

Central Trust Co. v. Hennen, 90 Fed. 593...........

Chicago v. Taylor, 125 U.8.161........... 27

Cincinnati v. Vester, 281 U. 8. 439... 15

City of Belleville v. Turnpike, 234 Ill. 428 An Me 6

Connellsville v. B. & O., 216 Pa. 309 Neto re? 17

Creswill vy. Grand Lodge, ne sanoe 15

Dick Bros. v. City of Quincy, 335 111.368... «sists, 22

Faulk v. Mo. Ry., 288. D.1........... 4: 17

Ferguson Coal v. Thompson, 343 lll. 20... ...... 7

Field v. Barling, 149 11.556 ae ; 30

First Nat’l Bank v. Hartford, 273 U. S. 548 ; 15

Freis v. Wheeling, 56 Ohio St. 135 . 17

Gates v. Colfax, 177 Ia. 690 17

Greenlee vy. Boren, 379 Tll. 494 . 30

Gustafsen v. Hamm, 56 Minn. 334 Sag a ; 8

Hartley v. Keokuk Ry., 85 Ia. 455 a 17

Heinrich vy. St. Louis, 125 Mo, 424 i 9

Hooker v. Rooney, 293 Il. 370 23

I. B. d W. Ry. v. Hartley, 67 Ul. 439 30

I.C. R. R. Co. vy. Moore, 160 Ill. 9 18

Jones v. Clark, 355 Il. 527... 24

Kane v. City of Chicago, 384 Ill. 361 __. 30

Kane v. Chicago, 392 Tll.172............. 30

Kime vy. Cass County, 71 Neb. 577... 17

Kuecken v. Voltz,110 Til. 264... s«s«si«s 18

Land vy. Wilmington, 107 N.C.72....... 17

Lawrence vy. O’Hara, 48 Ohio St. 343....... Pate 17

Lehigh Valley v. McFarland, 43 N.J.L.605 18

Liverman v. Roanoke, 109 N.C. 52....... oaue 17

Lode ¥. Cbg, S66 Ti. BBD... eee. Tere 7

McCoy v. Union Elev., 247 U.S. 354... io, 21

Mitchell v.C. B. dQ. R. R. Co., 265 Til. 300 18

Mo. R. R. v. Chapman, 150 Ark. 334... five 17

Moore v. Gar Creek, 266 T11.399...... = 23

a SO 8 Se rrr 10

Nevins v. Peoria, 41 Til. 502.................. ag 25

Norfolk Ry. v. Conley, 236 U.S. 605. 15

Northern P. R.Co. v. No. Dakota, 236 U. 8. 585 15

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INDEX iii

Page

Northern Transportation Co, v. City of Chicago, 99

SERV ia deay St Eg ge BA get a a 24

Osgood v. Chicago, 154 Ill. 194.................... 28

Panhandle Pipe Line vy. State Highway Com., 294

ee ae a aR re, oS iN osiniee 86 ¢ vs 11

Parrish v. Miller, 336 Ill. 630............. haifa eye 24

Penn Mutual Life v. Heies, 141 Ill. 35........ 7

People v. Kelly, 361 Ill. 54.......... Spear

People v. Kingery, 369 Ill. 289 ..._.. ee 23

People v. Rosenfield, 383 Til. 468 .._.. .. . 16,22, 29

People v. Smith, 374 Tl. 286... .. ie) 5 amine ae.

Rigney v. Chicago, 102 Ill. 64...................... 26

Salt Lake v. Oregon, 46 Utah 2038.................. 17

Schilling v. Carl Twp.,60 N.D.480 ............... 17

Scott v. Toledo, 36 Ved. 366................... 20

Southern R. R. v. Jennings, 130 Tenn. 450... . eu 17

Springer v. Chicago, 135 Ill. 552............. oe 28

Stock v. Cox, 125 Conn. 405, 6 A. (2d) 346... 8

Swedish Church vy. Jackson, 229 Il. 506... . 7,18

T.W. dé W. Ry. v. Morrison,71 1.616... .... oe 26

Truax vy. Corrigan, 257 U.S. 312, 66 L. Ed. 259 a 14

United States v. General Motors, 323 U.S. 373 ._... 10

United States v. Lynah, 188 U.S. 445..... Pe 24

United States v. Welch, 217 U.S. 333.......... 11

| Wabash R. R.v. McDoughall,126T.111... . 28

Statutes CITep

Constitution of the United States:

I tg ce ee 15

14th Amendment __. . . 9,13, 14, 15, 18, 22, 31

Cooley on Constitutional Limitations, Se 33

Illinois Constitution, Article IT:

EE soins hy CM ys oer dt SAN X.5 Saree +

i ER a a eats a i ot ~~ he

Illinois Statute of Limitations (1947 Ill. Bar Stat-

utes, Chap. 83, Sec. 15, Par. 16).......... 2

Lewis on Eminent Domain:

Oe SRG big gk ites ot eye emer (ee 10

ee Sy ict cela oh te he he 17

United States Code, Title 28, Section 1257 ey 1

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SUPREME COURT OF THE UNITE STATES

OCTOBER TERM, 1949

No. 472

BETTY STODDARD HORN, BARBARA STODDARD

KIRKLAND, LOUIS E. STODDARD, JR.; ano ETHEL

S. GARRETT ayp THE UNION TRUST COMPANY

OF PITTSBURGH, as Co-Executors anp Co-Trustres

uNpER THE Last Witt & Testament or Harry Daruine-

Ton, Jr., DECEASED,

vs. Appellants,

THE CITY OF CHICAGO, a Munictrat Corporation,

Appellee

JURISDICTIONAL STATEMENT UNDER SUPREME

COURT RULE 12

Pursuant to Rule 12 of the rules of the Supreme Court of

the United States, appellants present the following state-

ment showing the basis upon which they contend that the

Supreme Court has jurisdiction to review on appeal the

judgment of the Supreme Court of Illinois, appealed from

herein, as follows:

Statutory Provisions Believed to Sustain Jurisdiction

The following provision of Section 1257 of the United

States Code (U. S. C. Title 28), is relied upon as giving

Semen!

jurisdiction to the United States Supreme Court to review

the decision of the Supreme Court of Illinois:

‘‘Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows: * * *

‘*(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of its

validity.’’

The highest court of the State of Illinois has, in affirming

the Cireuit Court of Cook County and thereby holding that

plaintiff’s claim was barred by Section 15 of the Illinois

Statute of Limitations, decided in favor of the validity of

said statute, as applied to the instant case, and of Sections

2 and 13 of Article II of the Illinois Constitution and has

thereby denied plaintiff’s contention that such provisions,

as construed by the Illinois courts, are repugnant to the

Fourteenth Amendment to the United States Constitution.

Section 15 of the said Statute of Limitations (1947 Ill. Bar

Statutes Chap. 83, Sec. 15, Par. 16) is as follows:

**15. Actions on unwritten contracts, expressed or

implied, or on awards of arbitration, or to recover dam-

ages for an injury done to property, real or personal,

or to recover the possession of personal property or

damages for the detention or conversion thereof, and

al! civil actions not otherwise provided for, shall be

commenced within five years next after the cause of

action accrued.’’

Sections 2 and 13 of Article IT of the Illinois Constitution

provide as follows:

‘*2. No person shall be deprived of life, liberty or

property, without due process of law.

‘*13. Private property shall not be taken or damaged

for public use without just compensation. Such com-

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pensation, when not made by the state, shall be ascer-

tained by a jury, as shall be prescribed bylaw. * * °’’

(1947 Ill. Bar Stats. p. 20.)

Nature of Case

This is an action by plaintiffs (appellants) for damages

arising out of the construction of the Wabash Avenue via-

duct in Chicago. Plaintiffs contended that the construction

of said improvement constituted a taking and damaging

of their property without payment of just compensation,

and without due process of law, contrary to the provisions

of our Federal and State constitutions.

Tue NaTuRE OF THE PLEADINGS

Plaintiffs filed their complaint and an amendment thereto.

The defendant filed its motion to dismiss, interposing the

five year Statute of Limitations, supported by affidavits,

alleging that the work was completed in 1931 whereas the

suit was started in 1938, over five years after the cause of

action arose. The plaintiffs filed six objections to the motion

(Rec. 4; pp. 8-10) contending that the application of the

five year statute would violate plaintiffs’ constitutional

rights under the State and Federal constitutions.

: Tue Leapine Facts

All facts well pleaded in the complaint stand admitted by

the motion to dismiss, for the purposes of that motion. The

facts are substantially as follows: The plaintiffs were, in

the years 1930 and 1931, during the time of the construction

complained of, the owners of the premises at the North East

Corner of East Illinois Street and North Wabash Avenue,

Chicago (Rec. 4; p. 1), consisting of a tract of land with a

frontage of 100 feét on East Illinois Street, 100 feet on

North Wabash Avenue and 100 feet on the alley to the North

of the premises (Rec..4; p. 2). To the East, the premises

—

adjoined other privately owned property. Prior to the

Wabash Avenue viaduct construction, the streets and alleys

were all level and at grade (Ree. 4; p. 2). The premises in

question were improved with six 2-story and basement

stone front, brick residences, fronting on Wabash Avenue

and having a depth of about 50 feet, which buildings were

built and adapted to the then established grades of the

streets and alley (Ree. 4; p. 2), making ingress and egress

easy and convenient.

The plaintiffs owned the fee to the center of Illinois

Street, Wabash Avenue and the alley adjacent to their

premises (Rec. 4; p. 3). On July 29, 1930, the City enacted

an ordinance (Ree. 4; p. 3) which provided for depressing

Illinois Street which adjoined plaintiffs’ property on the

South about 814 feet to permit it to pass under the Wabash

Avenue viaduct and provided for a concrete retaining wall

at the curb line. Wabash Avenue was elevated at the North

line of Illinois Street approximately 7.85 feet, which neces-

sitated a concrete retaining wall along the west line of the

property in question about 8 feet high plus superstructures

at the Southerly end and 3 feet high at the Northerly end

(Ree. 4; pp. 4,5). The retaining walls separated the prop-

erty from its sub-sidewalk space and filled in the sub-side-

walk space (Rec. 4; p. 5). It also necessitated a change of

grade in the alley adjoining plaintiffs’ property on the

North, to meet the new grade of Wabash Avenue (Rec. 4;

p. 5). The property was substantially destroyed.

The trial court entered its order on April 27, 1948 (Ree. 4;

p. 11), finding: ‘‘That there has been no physical taking of

any of plaintiffs’ tangible property for a public use ;’’ and

‘‘That the cause of action herein is for the recovery of con-

sequential damages and is therefore barred under the pro-

visions of Section 15 of the Statute of Limitations of this

a * * ee

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‘*(3) That the application of said Section 15 of the Stat-

ute of Limitations to the action herein does not violate the

provisions of Section 13 of Article II of the Ilinois Consti-

tution, providing that private property shall not be taken

or damaged for public use without the payment of just com-

pensation and does not deprive plaintiffs herein of due

process of law, as guaranteed under Section 2, Article II

of the Illinois Constitution or the first section of the four-

teenth amendment to the United States Constitution.”’

(Italies ours.)

The cause was ordered dismissed at plaintiffs’ costs.

Date of Judgment Sought to Be Reviewed

The Supreme Court of Illinois issued its original opinion

and judgment affirming the trial court on the 19th day of

May, 1949. A Petition for Rehearing was duly filed in

accordance with Illinois Statutes and Rules, which peti-

tion was denied on the 20th day of September, 1949, making

the decision of the highest court of appeals in the State

of Tilinois final.

Law and Argument on Jurisdiction

Wherever there is a taking of private property, it is

universally held that the general Statute of Limitations

does not apply and that its application would be uncon-

stitutional. The Supreme Court of Llinois however, found

that there was no taking’, saying (Ree. 11, 12):

“The test applied by this court and also by the federal

court in determining whether real estate has been

taken for public use within the meaning of our con-

stitution is whether there has been an actual physical

invasion of the tangible property.’’

Thus it has (erroneously) construed the decisions of the

federal courts, as holding that there must be a physical

invasion of tangible property, to constitute a taking of

property under the Fourteenth Amendment to the United

States Constitution. This presents the question for this

court to determine as to whether there has been a taking

of appellants’ property within the meaning of the federal

constitution.

Appellants urge that the finding of the Illinois Supreme

Court is wholly without support or merit, and that upon

such erroneous premise, it was led into error in deciding

the case and in denying that the Fourteenth Amendment

to the United States Constitution was violated.

In appellants’ Petition for Rehearing, they stated as

follows (Ree. 20; p. 2):

‘“‘The court has misapprehended the law in stating

that the test as to a taking ‘is whether there has been

an actual physical invasion of tangible property,’ and

has misapprehended the Federal case and the Illinois

cases cited in its opinion in support of that statement.

Neither the Federal nor the Illinois cases justify that

premise,’’

Inuixors Courts axp Covrts or ALL Otrner States Unt

versaLLy Hoip Tuat Easements Are Prorerty anp Tuat

Truem Destruction Constitutes a Takine or Property

In the case of People v. Smith, 374 Ill. 286, the Illinois

Supreme Court, in discussing the constitutional right of a

land owner to damages in a change of grade case, says

(p. 288):

‘“‘This is a vested property right.’’

Private property is defined in City of Belleville v. Turn-

pike, 234 Ill. 428 (p. 434):

‘‘Whether the interest of appellant is denominated a

franchise or an easement, it is a valuable property

right, and its practical destruction would be the taking

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» <a

of property within the constitution. * * * Private

property forbidden by the constitution to be taken or

damaged for public use without just compensation is

not limited to the tangible subject matter or corpus of

the property, but includes the right of user and enjoy-

ment of it.”’ (Italics ours.)

In the case of Ferguson Coal v. Thompson, 343 Ill. 2v,

the court says (p. 28):

‘‘Owners of property bordering upon a street have,

as an incident of their ownership, the right of access

by way of the streets which cannot be taken away or

materially impaired without compensation.’’

Likewise, in the recent case of Lydy v. City, 356 Ill. 230,

the court says (p. 240):

‘The right of a property owner to access to the public

streets adjoining his property is a valuable property

right, which cannot be taken away without just com-

pensation.’’

In the case of Penn Mutuai Life v. Heiss, 141 Til. 35, the

court says (p. 61):

‘Tf a railroad company by building its road upon the

street fronting upon a lot, reduces the value thereof

from $5,000 to $3,000, it has as certainly taken from

the owner $2,000 of his property as if it had oeeupied

a strip of his land of that value,—and this seems to

be the current of later authority.’’

In the case of Swedish Church v. Jackson, 229 Til. 506,

the court says, with reference to an easement in connection

with streets and alleys (p. 511):

‘‘The easement which was appurtenant to each lot by

reason of the existence of the plat and the sales with

reference to it, was private property.’’

In the case of Aldis v. Union Elevated, 203 Ill. 567, the

court says, in its denial for petition for rehearing (p. 574);

**At the time said streets were dedicated or condemned,

appellants or their grantors did not part with, but

retained, as appurtenant to said property, the right of

access to said streets, the right to enjoy the air and

light which pass over said streets, the view and the

comfortable and safe enjoyment of their property;

(Field v. Barling, 149 Tl. 556; Doane v. Chicago City

Railway Co., 160 id. 22; Kotz v. Illinois Central Rail-

road Co., 188 id. 578)."’

In the case of Central Trust Co. v. Hennen, 90 Fed. 593,

the owner of property had access to a certain highway

which the publie authorities discontinued. . None of the

real estate was invaded. The court said (p. 597):

‘*Again, assuming that this right of way or easement

was vested in the petitioner as claimed, we coneur

with the learned circuit judge in the opinion that a

direct, permanent injury to, or the destruction of,

such right of ingress and egress, would, to the extent

of the damage actually sustained, be the taking of

private property, for public use."’

In the ease of Stock v. Cor, 125 Conn, 405, 6 A. 2d, 346,

the court says (p. 419):

‘This destruction of the plaintiff's right of aceess to

his south tract constitutes a taking of it in the econ-

stitutional sense.’’

In Gustafsen v. Hamm, 56 Minn. 334, the court says

(p. 339) :

‘Tt is the settled doctrine of this court that the owner

of a lot abutting on a public street, has, as appurtenant

to the lot, and independently of the ownership of the

fee in the street, an easement in the street, to its full

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i i |

omer ST

| 9

width, in front of his lot, for the purposes of access,

light and air, which constitutes property.”’

In Breinig v. Allegheny County, 332 Pa. 474, the court

said (p. 480) :

‘*Where land is taken or purchased for highways, the

abutting owner retains * * * the right of access.

* * * This right cannot be taken from him unless

compensation is made therefor under the law, It is a

property right, protected by the Constitution.

*** * * these propositions are clear: * * * a munici-

pality cannot, without condemnation, completely shut

off an abutting owner’s access to his land * * *,”’

(Italies ours.)

In Begilors vy. Ballerino, 111 Cal. 559, the court says

(p. 563) :

“The owner of property abutting on a public street,

has an easement in the street—which easement is his

property.”’

And in Heinrich vy. St. Louis, 125 Mo. 424, on page 428,

the court says:

“This right of access is appurtenant to his lot and is

private property.”’

Tue Same Reve Has Been Aruerep to sy THis Courr

This court has repeatedly held that the term ‘‘property’’,

as used in the Constitution, is used in its broad sense and

includes both tangibles and intangibles. There is no jus-

tification for reading into the 14th Amendment to the

United States Constitution, the modifying adjective

‘tangible’? before the word ‘‘property’’. In doing this,

the Supreme Court of Illinois has violated cardinal rules

of construction and long established principles of law and

has violated recognized standard definitions of ‘‘property’’

and ‘‘taking’’.

~—,

This court, in the case of Muhlker v. N. ¥. Ry., 197 U.S.

544, in referring to identical easements as here involved,

said (p. 568) :

‘That such easement was an interest in real estate

and constituted property within the meaning of the

constitution of the state and could not be taken for

public use without payment of compensation.’’

The court goes on and quotes with approval from Lewis

on Eminent Domain (p. 571):

‘*The true relation and subordination of these rights,

public and private, is expressed, not only in the

Elevated Railroad Cases, but by other cases. They are

collected in 1 Lewis, Eminent Domain, 91 e, and, it is

there said, ‘established beyond question the existence

of these rights, or easements, of light, air, and access

as appurtenant to abutting lots, and that they are as

much property as the lots themselves.’ *’

The meaning of ‘‘property’’ and ‘‘taken’’ has been

frequently discussed by this and other federal courts, in

connection with the provisions of the United States Con-

stitution. A recent case, which discusses at length the

meaning of the words ‘‘property’’ and ‘‘taken’’, is that of

U.S. v. General Motors, 323 U.S. 373. The General Motors

had a leasehold on a warehouse which the United States

sought to condemn for military purposes. The General

Motors sought to recover the cost of removal of the con-

tents of the seized property as part of its damages. The

lower court sustained an objection to such evidence on the

ground that there was no ‘‘taking’’ as far as the expense

of removal was concerned. This court held (pp. 377, 378):

‘*The critical terms are ‘property’, ‘taken’ and ‘just

compensation’. * * * The Constitutional provision

is addressed to every sort of interest the citizen may

possess,”’

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—

The court then discusses the meaning of the word

‘‘taken’’, saying (p. 378):

‘*In its primary meaning, the term ‘taken’ would seem

to signify something more than destruction, for it

might well be claimed that one does not take what he

destroys. But the construction of the phrase has not

been so narrow. The courts have held that the depriva-

tion of the former owner rather than the accretion of

a right or interest to the sovereign constitutes the

taking.”’

Other cases decided by this court likewise refute the

I}linois Supreme Court’s statement that the federal courts

have ruled that there must be a physical invasion of

tangible property to constitute a taking. In the case of

United States v. Welch, 27 U.S. 333, the United States

condemned land over which the property owner had a

private right of way, which was the only practical outlet

from his farm to the county road. There was no tangible

property physically invaded. This court, by Justice

Holmes, held (p. 339):

‘*A private right of way is an easement and is land.

We perceive no reason why it should not be held to

be acquired by the United States as incident to the

fee for which it admits that it must pay but if it were

only destroyed and ended a destruction for publie pur-

poses may as well be a taking as would be an appro-

, priation for the same end,’’

In the case of Panhandle Pipe Line v. State Hieh ay

Com., 294 U. S. 613, this court said (p. 618):

‘*A private right of way is an ease’ .ent and is land.’’

Appellants’ access or right of way to the streets in the

instant case was likewise such an easement and was ‘‘land”’.

In view of these cases, including the former decisions

of the Illinois Supreme Court, and of these universally ae-

cepted principles and definitions, it is difficult to under-

stand how the Supreme Court of Illinois could make such

a finding, namely, that to constitute a taking, there must

be a physical invasion of tangible property. That deei-

sion is not in conformity with the applicable law of Illinois

or the United States.

The Constitutions of Illinois and the United States ex-

pressly prohibit the taking of private property without

just compensation and without due process of law. This h

is a prohibition against the State and all of its agencies

(C. Bod Q. Ry. v. Chicago, 166 U. S. 226). It does not

require any action by the injured party but, on the con-

trary, prohibits the state (and its agencies) from doing

anything which would constitute the taking of private

property, without just compensation. Thus, it devolves

upon the condemning party to initiate proceedings where

the property is so taken and when it fails in this duty and

thereby compels the property owner to sue, then the sus-

taining of a short limitation period deprives such property

owner of due process of law under the state constitution

and the 14th Amendment to the federal constitution. There

was no point at which the limitation statute could start to

run against the appellants, because it was the City’s duty

to initiate proceedings under the state and federal con-

stitutions and appellants were deprived of the benefit of

judicial proceedings to establish compensation or, in other

words, were deprived of their property without due process

of law. All state courts have lield that only the well estab-

lished adverse possession, presumption of payment theory

would bar such a right. (Many cases to this effect are

cited under the caption ‘‘The Questions Involved are Sub-

stantial’’.)

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9 ae

Tuts Court Has Jurispiction tro Take Tus Case

Whether property has been taken without due process

of law under the 14th Amendment to the federal constitu-

tion depends upon the definition of the words ‘‘property’’

and ‘‘taken’’. This is a judicial question and a question

of law. This court has the power to construe the federal

constitution and to determine for itself the definition and

meaning of ‘‘property’’ and ‘‘taken’’ as used in the fed-

eral constitution. It certainly is not bound by a state

court decision construing the federal constitution. In the

instant case, no questions of fact are involved, therefore,

it is a judicial question whether the admitted destruction

of access to appellants’ property on the two streets and

the destruction of sub-sidewalk space belonging to the ap-

pellants (as they owned the fee to the middle of the street),

by the construction of concrete abutments, and the de-

struction of the easements of light, air and view, consti-

tutes a ‘‘taking’’ of their ‘‘property’’ without due process

under the federal constitution, and without just compensa-

tion.

This court has jurisdiction to take this case because:

(1) The question of law is involved as to what con-

stitutes a taking and what constitutes property and whether

it has been taken without due process of law under the

federal constitution.

(2) This court has jurisdiction to construe the federal

constitution and to determine the meaning of the terms and

provisions thereof. The Supreme Court of Illinois has

construed the 14th Amendment to the United States Con-

stitution to mean that there must be a physical taking or

invasion of tangible property to constitute a taking there-

under, when it held that the destruction of appellants’

cana

easements was not a taking of property within the mean-

ing of the due process clause.

(3) The facts being undisputed, the court may examine

the whole record in connection with appellants’ contention

that the 14th Amendment has been violated, to determine

whether, from the admitted facts, there is any evidence

to substantiate the finding of the Illinois Supreme Court,

that no property was taken, and to go to the substance of

the facts to determine whether the federal constitution has

been violated. }

(4) To determine whether the Illinois Supreme Court’s

finding constitutes such a mixed finding of law and facts,

so inseparable from the federal question, that this court

can review the whole record to determine if federal rights |

were violated. |

The Supreme Court of Illinois has determined the effect

of the admitted facts, under the statutes and constitution

of the State of Illinois, in a manner which deprived the

appellants of their legal rights under the 14th Amend-

ment to the United States Constitution and has wrong-

fully denied a federal right set up and claimed in a state

court, upon findings that have no basis in the record. In

an analogous situation in the case of Truax vy. Corrigan,

257 U.S. 312 (66 L. ed. 259), this court said (pp. 324, 325):

‘‘In cases brought to this court from state courts

for review, on the ground that a federal right set up

in the state court has been wrongly denied, and in

which the state court has put its decision on a finding

that the asserted Federal right has no basis in point

of fact, or has been waived or lost, this court as an

incident of its power to determine whether a Federal

right has been wrongly denied, may go behind the

finding to see whether it is without substantial sup-

port. If the rule were otherwise, it almost always would

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——

be within the power of a state court practically to

prevent a review here. * * * Another class of cases

in which this court will review the finding of the court

as to the facts is when the conclusion of law and find-

ings of fact are so intermingled as to make it necessary,

in order to pass upon the question, to analyze the facts.

Northern P. R. Co. v. North Dakota, 236 U.S. 585, 593.”’

These are thoroughly established principles of law. (North-

ern P. R. Co. v. No. Dakota, 236 U. S. 585, 593; Creswill

v. Grand Lodge, 225 U. S. 246, 261; Norfolk Ry. v. Conley,

i 236 U. S. 605, 609, 610; Cincinnati v. Vester, 281 U.S. 439,

446; First Nat’l Bank vy. Hartford, 273 U. 8. 548, 552.)

Tre Questions Invotven Are SuspstantTiaAL

Inasmuch as the question herein involved affects the

validity of the Statute of Limitations of the State of Illinois

and the 2nd and 13th Sections of Article II of the Illinois

Constitution and practically all states in the Union have

similar statutory and constitutional provisions, and the

construction and definition of the words ‘‘property’’ and

‘‘taking’’ are involved, which also oceurs in the 5th and

14th Amendments to the Federal constitution and in prac-

tically all of the constitutions of all of the states, and in-

asmuch as the opinion of the Illinois Supreme Court may

be used as a precedent or wedge by other states, to re-

strict or limit the constitutional rights of United States

citizens, the proper interpretation and application of these

statutory and constitutional provisions, and the determina-

tion of the meaning of ‘‘property”’’ and ‘‘taking’’ is of the

utmost importance, and is substantial.

The question of whether the construction and interpreta-

tion by the Supreme Court of Illinois, of the words ‘‘ prop-

erty’’ and ‘‘taking’’ has violated the Fourteenth Amend-

ment to the United States Constitution, which is one of the

most salient provisions of the Bill of Rights, is substantial.

Affecting this question are the following:

(1) Under universally recognized law (including that

of Illinois) easements are property.

(See cases cited under ‘Law and Argument on Juris-

diction’’.)

(2) The destruction of an easement constitutes taking

of property.

(See cases cited under ‘‘Law and Argument on Juris-

diction’’.)

(3) It is the universal law that where property is taken,

no regular statute of limitations is applicable, and only

the firmly established doctrine of prescription or presump-

tion of payment principle, bars the action.

This is clearly substantiated in Illinois by the case of

People v. Rosenfield, 383 Ill. 468, where the Supreme Court

of Illinois sustained a mandamus against the Director of

Public Works to compel him to condemn a strip of land

which had been used as a publie highway without the con-

sent of one of the owners. In that case, the court says

(p. 472):

‘*Section 13 of Article IL of the constitution of this

State provides that private property shall not be

taken or damaged for public use without just compen-

sation. This provision is self-executing and cannot

be annulled by non-action of a head of a department

of the State. * * * Unless the owner whose land

is wrongfully taken acquiesces in the trespass, taking

and use of the property for a public highway for the

statutory period of fifteen years, such owner cannot

be defeated of his right to compensation, .. 9 °* &

order that the Department acquire an easement by

adverse use, such adverse possession must continue

for a period of fifteen years, * * * Giving the

constitution and statute any different construction

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would annul them. People v. Kingery, 369 Ill. 289."’

(Italics ours.)

All other states where the question has been raised, hold

that only the prescriptive, presumption of payment princi-

ple bars an action for the taking of property.

Carter v. Ridge Turnpike, 208 Pa. 565, 566;

Faulk vy. Mo. Ry., 28 8. D. 1, 9;

Barker v. St. Louis Co., 340 Mo. 986, 999;

Kime vy. Cass County, 71 Neb. 677, 681;

Board v. Dancy, 65 Miss. 335, 341;

Salt Lake v. Oregon, 46 Utah 203, 208;

Lewis on Eminent Domain, 3rd Ed., See. 966;

Beachwood vy. Farrell, 20 Pa. D. & C. 285;

Connellsville v. B. & O., 216 Pa. 309;

Gates v. Colfax, 177 Ta. 690;

Land vy. Wilmington, 107 N, C. 72;

Liverman vy. Roanoke, 109 N. C. 52;

Southern R. Rv. Jennings, 130 Tenn. 450;

Schilling v. Carl Twp., 60 N. D, 480;

Lawrence v. O'llara, 48 Ohio St. 343;

Freis v. Wheeling, 56 Ohio St. 135;

Mo. R. R. vy. Chapman, 150 Ark, 334;

Hartley v. Keokuk Ry., 85 Ta. 455.

All of these cases, where the question was presented,

hold that the interposition of a shorter period of limita-

tions would be unconstitutional.

(4) It is well established law in all states, including Illi-

nois, that easements cannot be acquired or extinguished

except under the prescriptive, presumption of payment

theory. In Brunotte vy. DeWitt, 360 Til. 518, the court says

(as to an easement of passage, light and air) (p. 532):

‘Tt can only be extinguished by hostile, adver:e,

possession for the full statutory period.’’

In Swedish Church v. Jackson, 229 Ill. 506, the court says

(p. 511):

‘“e * ~* ~=6But a complete non-user of an easement

for twenty years, with possession in another that is

inconsistent with or adverse to the right of such ease-

ment, will bar the easement.’’

Also supporting that rule are the following cases:

1.C. R. R. Co. v. Moore, 160 Il. 9, 15;

Kuecken v. Voltz, 110 Il. 264, 271;

Mitchell v. C. B. & Q., 265 Il. 300, 306;

Lehigh Valley v. McFarland, 43 N. J. 1. 605, 617, 618,

619.

If an easement cannot be extinguished exeept by 20

years’ adverse possession, then the right to waive the

trespass and sue for damage must exist during all of that

time.

(5) The decision of the Supreme Court of Illinois in the

instant case is inconsistent with established legal principles

of all states and is not in conformity with the applicable

law of Illinois.

(6) Inasmuch as no 5-year Statute of Limitations is ap-

plicable to such ‘‘taking"’, the Illinois Supreme Court

adopted the only method available of defeating appel-

lants’ action, which was to find that there was no ‘‘taking’’,

By so doing, it misinterpreted the Illinois and federal cases,

violated established law and principles, and violated the

14th Amendment to the United States Constitution, whieh

prevents the ‘‘taking’’ of any property without due process

of law.

(7) The 14th Amendment to the United States Constitu-

tion, as well as the Illinois Constitution, cast upon the

municipality seeking to ‘‘take’’ property, the affirmative

BLEED THROUGH POOR COPY

duty to institute condemnation proceedings. This is es-

tablished law.

Tue Rieut ro Compensation ror Property Taken Cannor

Be Barrep By a State

This Court has clearly indicated on many occasions that

: no state can legislate a citizen out of his property and

cannot take his property, regardless of how it is sought

to be done, without violating the 14th Amendment. This

prohibition applies to the state and all of its agencies,

including the state supreme court. If a state, by its courts

or legislature, can disregard the mandatory provisions

of the federal constitution, which expressly prohibits the

taking of property without due process, and if it violates

its duty to initiate proceedings when it takes property and

then is permitted to apply a short statute of limitations to

a suit by the property owner for the taking of his property,

it thereby cireumvents the provisions of the federal con-

stitution, wrongfully casts the initiative upon the property

owner and it thereby nullifies the provisions of the 14th

Amendment to the United States Constitution,

In the case of Chicago, B. and Q. Ry. v. City of Chicago,

166 U.S, 226, the plaintiff in error, the railroad company,

also appealed to this court from the Supreme Court of

IIlinois in a somewhat similar situation and this court said

(pp. 235, 236) :

‘In determining what is due process of law regard

must be had to substance, not to form. * * * But if,

as this court has adjudged, a legislative enactment,

assuming arbitrarily to take the property of one indi-

vidual and give it to another individual, would not be

due process of law as enjoined by the 14th Amendment,

it must be that the requirement of due process of law

in that Amendment is applicable to the direct ap-

propriation by the state to public use and without

compensation of the private property of the citizen,

* * * Due process of law as applied to judicial

proceedings instituted for the taking of private prop-

erty for public use means, therefore, such process as

recognizes the right of the owner to be compensated

if his property be wrested from him and transferred

to the public. The mere form of the proceeding insti-

tuted against the owner, even if he be admitted to

defend, can not convert the process used into due

process of law, if the necessary result be to deprive

him of his property without compensation.’’

The court further quotes with approval from Scott vy.

Toledo, 36 Fed. 385, 395, as follows (p. 239):

‘*The conclusion of the court on this question is, that

since the adoption of the 14th Amendment compensa-

tion for private property taken for public uses consti-

tutes an essential element in ‘due process of law’, and

that without such compensation the appropriation of

private property to public uses, no matter under what

form of procedure it is taken would violate the provi-

sions of the Federal Constitution.’’

The court further cites with approval Cooley on Con-

stitutional Limitations, which says, among other things

(p. 240) :

“‘The restraints are, that when specific property is

taken, a pecuniary compensation, agreed upon or deter-

mined by judicial inquiry, must be paid.’’

and concluding, says (p. 241):

‘In our opinion, a judgment of a state court, even

if it be authorized by statute, whereby private prop-

erty is taken for the state or under its direction for

public use, without compensation made or secured to

the owner, is, upon principle and authority, wanting

in the due process of law required by the 14th Amend-

ment of the Constitution of the United States, and the

affirmance of such judgment by the highest court of the

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—

state is a denial by that state of a right secured to the

owner by that instrument.”’

To the same effect is McCoy v. Union Elev., 247 U. 8. 354,

where the court says (pp. 363, 365) :

‘*We may examine proceedings in state courts for

appropriation of private property to public purposes as

far as to inquire whether a rule of law was adopted in

absolute disregard of the owner’s right to just compen-

sation. If the necessary result. was to deprive him of

property without just compensation, then due process

of law was denied him, contrary to the 14th Amend-

ment. * * * The fundamental right guaranteed by

the 14th Amendment is that the owner shall not be de-

prived of the market value of his property under a rule

of law which makes it impossible for him to obtain just

compensation.”’

In the case of Brand vy. Union Elev. Co., 238 U. S. 586

(59 L. ed. 1471), a suit was filed for damages on account

of obstruction to ingress and egress and light, air and view,

due to the construction of an elevated railway. The precise

question involved was whether permitting the offsetting of

general benefits against damages violated the federal due

process clause. The majority opinion held, under plaintiff's

theory and his evidence, that the court was precluded from

going into that question. A dissenting opinion, joined in

by four justices, however held (p. 596):

that their property right of ingress and

| egress was peculiarly and particularly injured by the

railroad structure. Such damage was equivalent to a

taking of property for a public use, and required just

compensation to be made for the injury sustained.

* * * This court has more than once held that to

take private property for public use without adequate

compensation is a deprivation of due process of law

within the meaning of the 14th Amendment to the Fed-

eral Constitution.’’ (Citing numerous cases.)

Under this rule, the destruction of appellants’ accessi-

bility and light, air and view, constituted a taking, and

there was no way in which the municipality could avoid

paying therefor without violating the 14th Amendment. |

Illinois law also requires a condemning body to initiate |

proceedings where property is taken. In the case of People

v. Smith, 374 Ill. 286, the court says (p. 288):

‘**Section 12 of Article 2 of the Illinois Constitution

makes absolute the right of a land owner to damages

whenever his property is taken or damaged for public

use. It makes no difference whether the damages are

ascertained before or after the injury is inflicted. (Pco-

ple v. Kingery, supra, at page 293) This is a vested

property right. Ettor v. Tacoma, 228 U. S. 148, 157

L. ed. 773, 779.’’ (Italies ours.)

In People ex rel. v. Rosenfield, 383 Ill. 468, the court says

(p. 472):

‘The right of the owner to damages because his

property is taken or damaged for public use is abso-

lute, and it makes no difference whether the amount of

damages is ascertained before the injury is inflicted or

afterwards. Giving the constitution and statute any

different construction would annul them. People v.

Kingery, 369 Ill. 289.’’ (Italies ours.)

In People v. Kelly, 361 Ill. 54, the court says (p. 58):

‘*‘The appellant might have prevented the changing

of the grade of Monroe Street until such time as the

damages were actually paid to it had it so elected.’’

In Dick Bros. v. City of Quincy, 335 Ill. 368, the court says,

(p. 371):

**Under Section 13 it was the duty of the defendant

in error, if private property was to be damaged to have

the damages assessed as provided by statute.”’

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——7—"

The court further says (p. 372):

“This constitutional provision is the Supreme law

and plaintiff in error had the right to its protection.

If defendant in error damaged the property of plaintiff

in error it was the duty of the defendant in error to

have the damages ascertained. If it failed to do so it

can not set up such failure as an estoppel against

plaintiff in error.’’ (Italies ours.)

In Moore vy. Gar Creck, 266 Ill. 399, the court held (p.

403) :

‘It is not necessary for the property owner to take

the initiative or make any affirmative move.”’

In People v. Kingery, 369 111. 289, the court allowed a man-

damus to compel the Director of Publie Works to initiate

condemnation proceeding and overruled the contention of

the State that it was not required so to do.

The Illinois Supreme Court predicated its ruling that

there was no taking in the instant case, upon former cases

in which it affirmed lower courts in their denial of Petitions

for Writs of Mandamus to compel the filing of Eminent

Domain proceedings, which it says were similar instances,

This, it implies, constituted a holding in those cases, that

there was no ‘‘taking’’, but only a ‘‘damaging’’ of the prop-

erty involved,

It erred in this assumption however, as the denial of a

Petition for a Writ of Mandamus is not a decision upon

the merits. In each of those cases the writ was denied be-

cause there was an adequate remedy at law, and to prevent

a multiplicity of suits, when damages should be ascertained

ina suit at law. The very nature of the remedy permits

discretion to deny the writ if there is an adequate remedy

at law. (Hooker v. Rooney, 293 Ill. 370). Courts may re-

fuse the writ if the consequences create confusion or dis-

order, or will not promote substantial justice, or where it

is unavailing or fruitless and where no beneficial result will

follow. (Jones v. Clark, 355 Ill. 527; Parrish v. Miller,

336 Ill. 630.)

Turis Dectsion Is But Part or an Erroneous Trenp Estrap-

LIsHED AT AN Farty Dare Waicu Has Lep tro Some Ux-

usvuaL Decisions anp Wuicu Become ProcresstveLy More

anp More Dirricutt to Correct By LocaL Covrts

The decision of the Illinois Supreme Court in the instant

case, to the effect that under both Federal and State law

there must be an actual and physical invasion of tangible

property, to constitute a ‘‘taking’’ and a deprivation of

property within the provisions of the due process clause

of the federal constitution, is contrary to all rules and

principles of substantive law relating to real property.

There is no support for it in any of the decisions of this

court or in the pronouncements of the courts of other states,

The only United States Supreme Court case cited by the

Illinois Supreme Court in support of this holding is North-

ern Transportation Co, v. City of Chicago, 99 U.S. 635.

That case involved only a temporary interference with

accessibility, and the court on three separate occasions

(pp. 639, 642 & 643) emphasized that the decision was predi-

cated upon the temporary nature of the interference. This

was clearly pointed out in the ease of United States v. Ly-

nah, 188 U.S. 445, wherein it was held (p. 472) that the only

basis for the ruling that there was no ‘‘taking’’ in the

Northern Transportation Co. case, was that the interference

with access there complained of was merely temporary.

Illinois cases cited by the Illinois Supreme Court in sup-

port of its ruling are part of the erroneous trend herein

complained of. Many were cases where mandamus had been

denied, to compel the filing of eminent domain proceedings,

which the Illinois Supreme Court in this case interpreted

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—

as tantamount to a finding that there was no ‘‘taking’’.

Plaintiffs have already shown this was error, because the

denial of mandamus is not a decision upon the merits but

merely a rule of convenience, where there is an adequate

remedy at law.

Under the Illinois Constitution of 1848, the Bill of Rights

prohibited only the ‘‘taking’’ of private property without

due process of law and without just compensation. In 1870,

the present constitution was adopted, which provided (Sec.

13, Art. 11) that private property ‘‘shall not be taken or

damaged for public use without just compensation’’. Thus

the present constitution sought to further protect its citi-

zens by adding the words ‘‘or damaged’’, Under the 1848

constitution, the Supreme Court of Ilinois had defined what

coustituted the ‘‘taking’’ of property, in accordance with

recognized standards,

| In the case of Nevins vy. Peoria, 41 Ill. 592, decided under

the 1848 constitution, a city changed the drainage of its

streets so that additional water was imposed on the land

of the plaintiff and a stagnant pond was formed on adjoin-

| ing premises not belonging to him. In discussing what con-

stitutes a taking, the court says (p. 511):

‘*Why does not the constitutional provision apply as

well to secure the payment for property partially taken

for the use or convenience of a street, as when wholly

taken and converted into a street? * * * To the

extent to which the owner is deprived of its legitimate

use and as its value is impaired, to that extent he

should be paid.”’

The court recognized that the damage caused by the stag-

nant pond, adjoining plaintiff’s property but not touching it,

was compensible, and therefore was included within the

definition of taking, when it says (p. 515):

‘“*We know our Constitution was designed to pre-

vent these wrongs. We are of opinion, that, for injuries

may

done to the property of the appellant in the case before

us * * * by ereating in the immediate neighbor-

hood of his dwelling an offensive and unwholesome

pond, if the jury find these things to have been done,

the city of Peoria must respond in damages.’’

In the case of 7. W. d& W. Ry. v. Morrison, 71 Ill. 616,

surface waters were diverted by the railway company into

ditches, which resulted in a heavier than natural flow upon

plaintiff’s land. This case cites with approval the Nevins

case as follows: (p. 619)

‘*The constitutional guaranty, that private property

shall not be taken or applied to public use without just

compensation being made, was held to apply; and that

the owner, to the extent to which he was deprived of the

legitimate use of his property should be paid.’’ (Italies

ours.)

Thus, the case holds that under the old constitution, the

owner should be paid to the extent that he was deprived of |

the use of his property. This constituted a holding that

such deprivation is a taking, otherwise payment would not

have been required, inasmuch as Section 13 of Article II

did not then include the words ‘‘or damaged’’,

The leading case in Illinois, which discusses the effect of

the inclusion of the word ‘‘damage’’ in the constitution of

,1870, is Rigney v. Chicago, 102 Ill. 64. The court reviews

“the distinction between taking and damaging and says

(p. 74):

‘‘Whatever, therefore, may be the rule in other

States, it clearly appears from this review of the cases

that previous to, and at the time of the adoption of,

the present constitution, it was the settled doctrine of

this court that any actual physical injury to private

property, by reason of the erection, construction or

operation of a public improvement in or along a public

street or highway, whereby its appropriate use or enjoy-

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—

ment was materially interrupted, or its value sub-

stantially impaired, was regarded as a taking of private

property, within the meaning of the constitution, to the

extent of the damages thereby oceasioned, and actions

for such injuries were uniformly sustained,’’ (Italics

ours.)

The court further says (p. 77):

‘*Property, in its appropriate sense, means that

dominion or indefinite right of user and disposition

which one may lawfully exercise over particular things

or subjects, and generally to the exclusion of all others,

and doubtless this is substantially the sense in which it

is used in the constitution, * * *”’

The Rigney case is commented on and construed by the

United States Supreme Court in Chicago v. Taylor, 125

U.S. 161, wherein the above quotation, from page 74, is cited

| with approval.

Under those cases and under the old constitution, which

is similar to that of the United States (Sth Amendment), the

| injury to appellants’ property in the instant case clearly

would have been deemed a taking and would have fallen

within the prohibition of the 1848 constitution. But in spite

of the liberalization of the constitutional safeguard, by

inclusion of the words ‘‘or damaged’’ in the present con-

stitution, the Illinois Supreme Court has held in the instant

case that there was no taking and therefore that the five

year Statute of Limitations applied.

After this construction of the term ‘‘taking’’, by Illi-

nois courts under the 1848 constitution, which construction

was consistent with the rules laid down by this Court and

the laws of all other states, Illinois courts deviated or were

led astray from this well established principle.

The origin of this erroneous trend appears in some early

cases decided under the Illinois Constitution of 1870. These

eases established the erroneous doctrine that the only test

of whether there was any recoverable damage under the

constitution, was if the value of the premises after the im-

provement was less than before. This holding is tantamount

to permitting benefits of every character to be set off against

any or all damage. This entirely ignores the possibility of

there being damage due to a ‘‘taking’’, which would be

recoverable under the constitution and could not be offset by

benefits. The possible result of these holdings was then

apparently not evident and not considered important.

It is impossible in this statement to point out and trace

the decisions which led to this error,

Some of these early cases so holding, without any con-

sideration of the result or effect, are Springer v. Chicago,

135 LL 552; Wabash R. R. vy. MceDoughall, 126 Ill. 111;

Osquod v. Chicago, 154 Il. 194.

It is obvious that if the property owner suffers damage

as a result of the taking of property, then paying such

damages only by benefits is not ‘‘ just compensation’’, and

would result in property being taken without due process

in violation of the 14th Amendment to the United States |

Constitution.

In seeking to adhere to principles established by these

erroneous early decisions, the Illinois Supreme Court has

been led to render opinions which clearly violate a citizen’s

federal constitutional safeguards and are entirely incon-

sistent with firmly established doctrines. This has resulted

in some strained and unusual rulings, which have been

highly favorable to municipalities and condemnors, but

very injurious to and discriminatory against its citizens.

In the case of People y. Kelly, 379 Ill. 297, the plaintiff

filed a mandamus suit to compel the City of Chicago to

institute condemnation proceedings in connection with its

proposed building of a subway. It was conceded that it

was necessary for the plaintiff to protect and shore its

BLEED THROUGH POOR COPY

foundation against sub-soil movements at the cost of

$225,000.00, otherwise, there would have been serious

structural damage and possible collapse of the structure.

The Supreme Court of Illinois however, held that there

was no taking and denied the plaintiff relief by mandamus,

leaving the property owner to his suit at law after the dam-

ages occurred and the expenses were paid.

In the case of People v. Rosenfield, 399 Il. 247, which was

also a petition for mandamus against the Director of Public

Works of the State of Illinois, in connection with the .con-

struction of a viaduct on a state highway, the change of

grade caused surface waters to run into buildings of an

abutting property owner. Presumably this was recurrent

at every rain, but the court denied that there was a taking

of property and refused the mandamus, saying (p. 251):

‘*As to whether the alleged damages are such as to

amount to a physical taking of property, we note the

allegations that surface waters run into the buildings

and make them unfit for the uses to which they are

now devoted and will damage or destroy valuable

| equipment, machinery and supplies therein; that it

will be necessary to change the floor levels and that

because of the materials of which the buildings are

constructed the change of floor levels will require large

expenditures of money. It is not alleged that these

waters accumulate and remain on the premises and

thereby prevent the use thereof, but it is claimed that

by reason of their running into the buildings the dam-

ages are occasioned. Running surface waters are not

constantly present but are temporary and come as a

result of rain or snow.”’

The court held that there was no taking of property and

mandamus to compel the filing of Eminent Domain proceed-

ings was denied. Under these decisions, the duty of insti-

tuting condemnation proceedings was avoided by a finding

that there was no taking.

man

Similarly, in the case of Kane v. City of Chicago, 384

Il). 361, which involved the same improvement as the instant

case, the plaintiff owned the fee to the center of the street,

Illinois eases had theretofore uniformly held that in ae-

quiring an easement to a street for street purposes, the

city merely acquired the right to use the street for ordi-

nary street purposes and that the property owner retained

right of access and easements of light, air and view. (Field

v. Barling, 149 Ill. 556; Allen v. Chicago, 176 Ill. 113; Green-

lee v. Boren, 379 Ill. 494.) In the case of J. B. d W. Ry,

v. Hartley, 67 Ill. 439, it was held (p. 444):

‘*Where the fee remains in the original proprietor,

it is immaterial how the publie acquired an easement

over the lands, whether by condemnation or by dedi-

cation; it is only for the use of ordinary travel, such

as we are accustomed to see on streets or highways,

In case the proprietor dedicated the land, it was for

no other purpose, and if it was condemned, his dam-

ages were assessed with no other view.”’

Nevertheless, in the Kane case, where the city dug cais-

sons in front of plaintiff’s property down to bed rock and

destroyed plaintiffs’ sub-sidewalk usable space, double-

decked the street, depressing the lower level and elevat-

ing the upper level, placing large supporting columns in

the street which seriously affected accessibility, as did the

change of grade, the Illinois Supreme Court held that there

was no taking.

Again, in the case of Kane v. Chicago, 392 Ill. 172, when

the same case went up to the Supreme Court for a second

time, on the question of setting off benefits against the

structural damages to the plaintiffs’ building and the loss

of their easements of access, light and air, the court held

(p. 177):

‘Clearly, under the well-established rule that the

damage to property not taken is the difference in the

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_——

fair market value of the property as a whole, before

and after the improvement, benefits may always be

set off against damages, no matter what may be the

amount of those damages. (Osgood v. City of Chicago,

154 Ill. 194.) And as pointed out in the Osgood case,

even though the buildings be wholly destroyed, if the

value of the lot is increased to an amount exceeding

the value of the buildings it cannot be said that the

property has been damaged,’’ (ltalies ours.)

Thus, a municipality might ‘‘improve’’ one out of his

property, by seriously damaging or collapsing his building

by building a public improvement in the street, and by

changing an income producing asset to a tax-paying lia-

bility or by compelling the damaged person to advance and

expend possibly hundreds of thousands of dollars, which

he may not have and may have no means of raising, espe-

cially if the property were already mortgaged. The alterna-

tive may be the loss of his property or a sacrifice sale and

still, under present Illinois cases, this would be held not

to be a taking.

| In rone of these cases was a federal constitutional ques-

| tion raised and this court was not called upon to pass upon

whether there was a violation of the Fourteenth Amend-

ment.

| The final illustration of the trend is the instant case

where, in spite of the fact that there is a solid concrete

wall in front of the six residences owned by the appellants,

who had received no notice of the improvement or sum-

mons, and another solid conerete retaining wall on the side

thereof, with the street depressed and an overhead viaduct,

thereby practically destroying accessibility and the ease-

ments of light, air and view, and perpetually darkening the

premises and making them uninhabitable, the court held

there was no taking and that the 5-year period of limita-

tions applied,

Plaintiffs under this caption merely desire to illustrate

how an original erroneous decision or a misconstruction

seemingly unimportant may lead, step by step, to the estab-

lishment of erroneous principles of law which become more

firmly rooted in the state’s jurisprudence and become more

and more difficult to control or correct, until finally, resort

must be had to the Supreme Court of the United States

to aid the state court and guide it back to constitutional

channels. This accentuates the importance of the instant

case and is designed to illustrate that the questions in-

volved are substantial.

Srace 1x Proceepines ar Waicn tue Fepernat Qvestioxs

Were Ratsep

The federal question was initially raised in the trial

court when the defendant filed its motion to dismiss the

suit (Rec. 4; p. 7) on the theory that the action was barred

by the five-year limitation period and the plaintiffs im-

mediately filed their objections in writing thereto setting

up amongst other things as follows (Rec. 4; pp. 9, 10):

‘“‘That depriving plaintiffs of their easements in

their property of light, air, view, accessibility, ete.,

constituted the taking of property or the taking of a

vested property right. * * * Article 2, Section 2 and

Article 2, Section 13 of the Illinois Constitution and

the said Eminent Domain Act and the Statute of Limi-

tations of the State of Illinois, which permitted or

permit the taking of said property of plaintiffs without

just compensation and without due process and without

any legal action, violate Section 1 of the Fourteenth

Amendment to the United States Constitution in de-

priving plaintiffs of property without due process of law

and each of said sections and said Statutes are uncon-

stitutional and void.’’

The question was also raised in Paragraph 17 of appel-

lants’ complaint which alleged (Rec. 4; p. 11) that said

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‘taking’? was ‘‘in violation of * * * the first section

of the 14th Amendment to the United States Constitution.”

The final judgment of the lower court was entered

April 27, 1948, which found that there was no physical

taking of any of plaintiffs’ tangible property and expressly

found as follows (Ree. 4; p. 11):

**(3) That the application of said Section 15 of the

Statute of Limitations to the action herein * *

does not deprive plaintiffs herein of due process of

law, as guaranteed under Section 2, Article IL of the

Illinois Constitution or the first section of the Four-

teenth Amendment to the United State Constitution.”’

In the appeal to the Supreme Court of the State of Tlli-

nois, the plaintiffs in their assignment of errors (Rec. 6;

p. 8) claimed as follows:

se 6) * that the trial court erred in failing to

find that there was a taking of plaintiffs’ property,

under the Illinois statutes and Constitution, and the

United States Constitution; in finding that * * *

the application of Section 15 did not violate any state

or federal constitutional provisions.’’

Plaintiffs likewise set this up in detail (and argued it)

under their Point II of their original brief (R. 6; p. 11).

The opinion of the Supreme Court of Illinois (R. 17) also

expressly found that plaintiffs’ property had not been

taken and that there was no violation of any State or Fed-

eral constitutional provisions (R. 17).

Plaintiffs again fully raised the Federal constitutional

question in their Petition for Rehearing (R. 20; p. 18)

which was denied,

Conclusion

Thus plaintiffs asserted and insisted upon their rights

and upon the protection of the Fourteenth Amendment to

the Federal Constitution at every step. Plaintiffs have

insisted and argued that under the decisions of the United

States Supreme Court, and under all standards of law and

all definitions, that easements of light, air and access are

property and that their destruction constitutes the taking

of property. Cases of all other states so hold. It is a

standard and uniform definition and principle of common

and statutory law. The Supreme Court of Illinois cannot

be permitted to say that such easements are not property

and that they were not taken.

Plaintiffs urge that it is inequitable and unfair and in

violation of established principles to bar their cause of

action by the short period of limitations. This is espe-

cially true where property owners are non-residents and

may have no actual notice of the construction. It is also true

because in most instances, the property owners who are

not served with any notice or process, are not conscious of

or familiar with, their possible rights of action and five

years may readily expire during construction and during

the details of final completion before their rights are called

to their attention.

Plaintiffs pray that this court take jurisdiction and

examine the judgment of the Supreme Court of Illinois,

to determine whether the sacred provisions of the Four-

teenth Amendment have been violated.

Presented this 2nd day of November, 1949.

Respectfully submitted,

Jerome J. Siapkey,

Fioyp Layuam,

Grorar P. Novak,

Counsel for Appellants.

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APPENDIX “A”

Docket No. 30880—Agenda 13—March, 1949.

Berry Sropparp Horn er at., Appellants,

Tue Crry or Cuicaco, Appellee.

Mr. Justice Thompson delivered the opinion of the court:

This suit was filed by plaintiffs, appellants here, in the

cireuit court of Cook County to recover damages arising

out of the construction of the Wabash Avenue viaduct in

the city of Chicago. The complaint, as amended, charged

injury to plaintiffs’ abutting property and it was contended

that the construction of said improvement constituted the

taking and damaging of their property without payment of

just compensation, and without due process of law, con-

trary to the provisions of both Federal and State consti-

tutions. Defendant filed a motion to dismiss and urged

in bar of the action that it did not accrue to plaintiffs within

the time limited by law to institute the proceedings, and

the motion was supported by affidavit to that effect. The

motion was allowed and the cause dismissed from which

an appeal was taken to this court.

Appellants’ property is located at the northeast corner

of East Illinois Street and North Wabash Avenue, in

Chicago, and has a frontage of 100 feet on Illinois Street

on the south, 100 feet on Wabash Avenue on the west and

100 feet on an alley on the north. Illinois Street is the

third street north of the bridge and the first street south

of Grand Avenue, where the approach to the bridge begins.

The damage to appellants’ real estate, as claimed, was

brought about by the construction of the north viaduct on

approach to the bridge over the Chicago river at Wabash

Avenue in the city of Chicago.

The amended complaint alleged, in substance, that ap-

pellants’ property was improved with six two-story brick

residences, fronting on Wabash Avenue and abutting on

private property in the rear; that said buildings were

built and adapted to the then established grades of the

said streets and alleys; that prior to the construction of

the Wabash Avenue bridge and viaduct there was con-

venient and easy access to appellants’ property and that

the same was indispensible to the use and occupancy

thereof. The amended complaint also alleged that appel-

lants owned the title, in fee, to the streets and alley adjoin-

ing their property to the center of the highway, subject

only to an easement in the city of Chicago for surface

highway purposes; that in building the Wabash Avenue

bridge and the north approach thereto, the city changed

the grade of the streets, sidewalks and alley adjacent to

appellants” property and constructed a retaining wall along

Illinois Street and Wabash Avenue, separating appellants’

property from the sidewalk space adjoining their property;

that such construction interfered with and destroyed ap-

pellants’ easements of light and air, and of ingress and

egress to and from the premises in question; and that

appellants were thereby deprived of their property without

just compensation.

The city filed a motion to dismiss on the ground that

the action was barred by the Statute of Limitations. Afii-

davits in support of the motion were filed, stating that the

construction of the bridge and viaduct was completed and

the streets were opened to public traffic more than five

years prior to the commencement of the present action.

Appellants, in their objection filed to the motion to dismiss

contended (1) that no Statute of Limitations can run against

the cause of action here sued on, since the same arises under

the constitutional provision that private property shall

not be taken or damaged for publie use without just com-

pensation, and any statute restricting the time to file suit

under this constitutional provision would be invalid; (2)

that section 2 of the Eminent Domain Act, providing that

no private property shall be taken or damaged for public

use until an attempt has been made by the body author-

ized to condemn, to agree upon damages, places the bur-

den of ascertaining damages upon the condemner and no

Statute of Limitations could run until this was done; (3)

that depriving appellants of their easements of light, air,

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view, accessibility, ete., constituted the taking of property

or the taking of a vested property right, and any Statute

of Limitations taking away this property or property

rights deprives appellants of their property without due

process of law and just compensation, and violates section

2 of article II and section 13 of article II of the Illinois

constitution, and section I of the fourteenth amendment to

the Federal constitution; (4) that the city, not having

complied with the constitutional and statutory provisions

requiring it to initiate proceedings, is estopped to invoke

any Statute of Limitations claimed to be applicable; (5)

that if there is any limitation upon appellants in bring-

ing their action, it would be only after the expiration of

twenty years from the completion of the improvement

under the principle and theory of adverse possession and

by prescription; (6) that if any statute of limitations is

applicable, then it is the ten-year statute provided for in

section 17 of the Limitations Act, as the constitution is

a writing which would bring the cause of action under

that section.

The court’s order in dismissing plaintiffs’ suit on the

city’s motion is based upon findings that there had been

no physical taking of any of appellants’ tangible property

for any public use, that the action was barred by the pro-

visions of section 15 of the Limitations Act because not

brought within five years after the completion of the im-

provement in question, and that the application of sec-

tion 15 of the Limitations Act (Ill. Rev. Stat. 1947, chap.

83, par. 16,) does not violate the provisions of section 13

of article II of the State constitution, providing that private

property shall not be taken or damaged for public use

without the payment of just compensation, and does not

deprive appellants of due process of law, as guaranteed

by section 2 of article II of the State constitution and the

first section of the fourteenth amendment to the Federal

constitution.

The contentions which appellants make in this court

are the same as those made in their objections to the mo-

tion to dismiss, and present the question whether appel-

lants’ asserted right to compensation for damages to their

property is barred by the five-year Statute of Limita-

tions.

It is established by the pleadings that appellants, as

abutting owners, are seized of title and fee to the center

of the street, that the city had legal authority to make the

improvement in the street, that it was properly made in

pursuance of such authority, and that it is a permanent

structure, the existence of which is necessarily injurious to

appellants’ property. Appellants do not allege that there

has been any negligence or unlawful acts on the part of the

city in the construction of the improvement, or that as a

result of its construction there has been any physical in-

vasion of their tangible property adjacent to the street,

but they allege an injury to such property from the destrue-

tion of its appurtenant easements of light and air, and of

ingress and egress. They also allege an injury occasioned

by the filling in of sub-sidewalk space, which injuries, they

claim, constitute a taking of their property for public use.

The test applied by this court and also by the Federal

court, in determining whether real estate has been taken

for public use within the meaning of our constitution, is

whether there has been an actual physical invasion of the

tangible property. (People ex rel. Pratt v. Rosenfield, 399

Ill. 247; Kane v. City of Chicago, 392 Ill. 172; People

ex rel. Tyson v. Kelly, 379 Ill. 297; Cuneo v. City of Chi-

eago, 379 Ill. 488; Barnard v. City of Chicago, 270 Il.

27; Otis Elevator Co. v. City of Chicago, 263 Ill 419;

Schroeder v. City of Joliet, 189 IIL 48; Northern Trans- |

portation Co, v. City of Chicago, 99 U. 8. 635.) As pointed

out in these cases, even though there has been no attempt

by the sovereign authority to appropriate and use the real

estate for public purposes, nevertheless, if as a necessary

result of the construction, maintenance or operation of a

public improvement, the real estate is physically invaded by

superinduced additions of water, earth, sand or other ma-

terials, so as to effectually destroy or impair its usefulness,

it is a taking within the meaning of the constitution.

Before the adoption of our present constitution a land-

owner could have no relief for damages occasioned by the

construction or maintenance of a public improvement in a

proper manner under lawful authority, although his prop-

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.. <a

erty was thereby rendered practically valueless, unless there

had been an actual physical invasion of the land itself.

Thus, a property owner was guaranteed compensation for

any deprivation of res, but not of jus. This situation con-

tinued until 1870, when the framers of our present consti-

tution added the provision that private property should not

be damaged for public use without just compensation. It

is under this last constitutional provision, and none other,

that a landowner may claim compensation for the destrue-

tion or disturbance of easements of light and air, and of

accessibility, or of such other intangible rights as he enjoys

in connection with, and as incidental to, the ownership of

the land itself.

Appellants contend that inasmuch as they own the fee

to the center of the street, consequently the filling in of

the sidewalk space in the streets adjacent to their property

amounted to a taking of their private property for public

use. It is admitted that appellants’ ownership of the fee

is subject to an easement in favor of the public for street

purposes. The easement for a street includes such use of

the land at or beneath the surface as will make the ease-

ment effective, and for that purpose the public authorities

may change the grade of the street and the owner of the fee

has no right to interfere. (City of Dixon v. Sinow &

Weinman, 350 IIL. 634.) Where the owners of abutting

lots own the fee in the street the city may use such streets,

including the sidewalk space, for all purposes to which a

street may be put without the consent of the abutting

owners. (Tacoma Safety Deposit Co. v. City of Chicago,

247 Il. 192.) The title of the abutting owner to the center

of the street is a present subsisting ownership of the fee

which he may subject to any private use he sees fit so long

as it does not interfere with public travel. (Davis v. City

of Chicago, 333 Ill. 422.) The owner of the fee, whether

it be the city or the abutting owner, may use the sidewalk

space for any private purpose and in any manner such

owner may desire, provided such space is not required to

advance the effectiveness of the public easement. (Tacoma

Safety Deposit Co. v. City of Chicago, 247 Ill. 192.) The

appropriation of sidewalk space in the construction of a

street improvement does not impose additional servitude on

the fee and does not amount to a taking of the fee owner’s

property. It is not a subjection of the fee to a new and

additional burden or easement, but is merely the exercise or

continuation of the burden or easement to which it was

already subject. Hence, such an appropriation of sidewalk

space does not come within the constitutional prohibition

that private property shall not be taken or damaged for

publie use without just compensation.

Appellants cite the case of Davis v. City of Chicago,

333 Ill, 422, and Pennsylvania Coal Co. v. Mahon, 260

U.S. 393, 43 8. Ct. 158, in support of the theory that the

destruction of their sidewalk space constituted a taking of

their property. The Davis case was an injunction suit by

a property owner, who owned the fee in the adjacent street,

to restrain the city from ejecting him from his oceupaney

and use of the sidewalk space and appropriate such space

for the construction of a local improvement under the au-

thority of special assessment proceedings which the city

had instituted in the county court. This court held that

the property owner was entitled to an injunction during

the pendency of the appeal which he had taken from the

judgment of the county court in the special assessment |

proceedings. The holding was based upon the fact that the

same questions were involved in the pending appeal as in

the injunction suit. It is apparent that this case can have

no application to the question at issue here. The Penn-

sylvania case held that a statute forbidding the mining of

coal in such a way as to cause subsidence of any structure

used for human habitation could not be enforced where to

do so would destroy previously existing rights of property

and contract. This decision, also, could have no applica-

tion to the case at bar.

We have repeatedly held that an abutting property

owner is not entitled to have condemnation proceedings

instituted to determine damages to his property occasioned

by a public improvement where no part of his property is

physically taken and that the city or other authorized sov-

ereign constructing such improvement is not required, under

the constitution or the Eminent Domain Act or any other

law or Statute, to institute condemnation or other proceed-

ings to ascertain such damages. (People ex rel. Pratt v.

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Rosenfield, 399 Ill. 247; People ex rel. Tyson v. Kelly, 379

lll. 297; County of Mercer v. Wolff, 237 Ll. 74.) Cases

relied on by appellants do not support their contention that

it was the duty of the city to initiate proceedings to deter-

mine their damage, City of Elgin v. Eaton, 83 Ill. 535,

was a case arising before the passage of our present Emi-

nent Domain Act and at a time when the Eminent Domain

statute then in effect made it the duty of the city to have

damages ascertained,

Appellant cites the case of Bradbury v. Vandalia Levee

and Drainage Dist. 236 Ill. 36, and quotes from this case

at page 44, ‘If a drainage district actually takes land, com-

pensation must be made before the land is appropriated,

and if the district concedes that damage will result to lands

such damages may be assessed under the law of eminent

domain; but if the district does not concede, in the first

instance, that damage will result, an action on the case is

an appropriate remedy to determine the question whether

lands will be damaged and to recover the damages.’’ We

are not of the opinion that this court intended, by the use

of the above-quoted language, to hold that a district was

obligated or required to ascertain consequential damages.

This would appear from the use of the word ‘‘must’’ in

regard to compensation for land actually taken and the

use of the word ‘‘may”’ in reference to damages. This con-

clusion is also strengthened by the fact that in the later case

of Bay Bottoms Drainage Dist. v. Cache River Drainage

Dist. 295 Il. 301, after quoting with approval the above

language in the Bradbury case, immediately followed the

same with the statement, ‘‘Where no part of the premises

of complainant is sought to be taken and no direct physical

damage to his property is contemplated and the damages

to be sustained, if any, are entirely consequential, the com-

plainant is not entitled to have the damages ascertained

under the Eminent Domain Act but he is remitted to his

action at law.’’

The ease of Moore v. Gar Creek Drainage Dist., 266 II.

399, cited by appellants, held only that a grant obtained

from the highway commissioner for a right of way to lay

the title in a public highway for the benefit of a drainage

district was ineffective in view of the fact that the com-

cna

missioners had no authority to grant such right of way or

permit the use of the street for other than highway purposes,

The case of Dick & Bros. Quincy Brewing Co. v. City

of Quincy, 335 Ill. 368, held that as section 13 of the Local

Improvement Act expressly provided that when private

property was to be taken or damaged, the city should desig-

nate some officer to file a petition in some court of record

in the county in the name of the municipality praying that

steps be taken to determine the amount of such compensa-

tion. Therefore, an owner of the property which had been

assessed for benefits in a proceeding under the Local Im-

provement Act was not estopped from subsequently suing

for damages to his property by his failure to file objections

to his assessment, or a cross petition claiming damages in

the special assessment proceeding. Section 13 of the Local

Improvement Act then applied, as it does now, (Ill. Rev.

Stat. 1947, chap. 24, par. 84-13,) only to local improvements

to be paid for wholly or in part by special assessment or by

special taxation. It does not appear from the pleading or

the record in the instant case that the public improvement

here in question was constructed under the provisions of

the Local Improvement Act, or that it was to be or was paid

for, wholly or in part, by special assessment or by special

taxation. This decision is, therefore, insufficient to warrant

this court in holding that it was the duty of the city in con-

nection with its construction of the Wabash Avenue bridge

and approaches thereto to ascertain damages to the property

of appellants. Three cases cited by appellants, People ex

rel. Markgraff v. Rosenfield, 383 Ill. 468, People ex rel. First

Nat. Bank v. Kingery, 369 Ill. 289, and People ex rel.

O’Meara vy. Smith, 374 Ill. 286, were cases where a manda-

mus was awarded in favor of a property owner to compel

the institution of eminent domain proceedings. The relator

in the first of these cases was the owner of land over which

a State highway had been constructed and for that reason

was entitled to the writ. In the other two cases the writ

was allowed because a suit for damages could not be main-

tained against the director of the Department of Public

Works and Buildings and there was no other party against

whom damages could be recovered. These cases are not

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—

authority for the rule contended for and are without appli-

cation to the instant case.

This court has held in a number of cases that eminent

domain proceedings are not required to ascertain conse-

quential damages. (People ex rel. Pratt v. Rosenfield,

399 Ill. 247; County of Mercer v. Wolff, 237 Ill. 74.) We

have also settled the proposition that a property owner

suffering such damages is deprived of no constitutional

right in being remitted to an action at law for the recovery

of his damage. People ex rel. Pratt v. Rosenfield, 399 Ill.

247; Illinois Power and Light Corp. v. Peterson, 322 Ill.

342.

It is contended by appellants that, as the right of action

arises unde7z the constitutional provision that private prop-

erty shall not be damaged for public use without just com-

pensation, no statute of limitation can run against it. They

insist this constitutional guarantee would be rendered nuga-

tory by legislative enactment and the property rights

secured thereby would be dependent upon the mere will

of the General Assembly. We do not find any support in

this respect from the many cases which diligent counsel have

cited in support thereof, either expressly or by inference

or implication. We hardly think it reasonable that the

framers of our constitution intended that one given a right

of action for damages under the constitutional provision

might delay his suit for many years when evidence, formerly

within his power to produce, concerning the existence, cause

and extent of the alleged damage, may have become lost,

destroyed or otherwise beyond the defendant’s power or

control. The purpose of a statute of limitation is to require

any necessary litigation to be brought within such time as

the particular facts and circumstances may be proved with

the utmost certainty and before adequate proof has become

stale or entirely lost. (Leitch v. New York Central Rail-

road Co. 388 Tll. 236.) The legislature may, without violat-

ing constitutional guaranties, enact statutes which limit

the time within which actions may be brought to enforce

demands where there was previously no period of limita-

tion, or which limit, change, and vary existing rules as to

limitation of actions, either by shortening or extending the

A |

time within which the cause of action may be asserted, (34

Am. Jur. 27, Par. 18.) Even a substantive right created by

a State constitution is governed and controlled in its enforce-

ment and administration by regulatory and procedural §

legislation enacted by the General Assembly, which legis-

lative enactments may include a limitation as to the period

within which action may be taken to enforce the substantive

right. (State ex rel. Hammon v. Industrial Com. 144 Ohio

State 477, 59 N. E. 2d 745; Burrill v. Locomobile Co., 258

U.S. 34, 42 S. Ct. 256.) We think it clear that the framers

of the constitution did not intend that the rights given to

damaged property owners under section 13 of article II

should have unlimited time for their enforcement. B

We do not think it necessary to burden this opinion fur-

ther with an analysis of the alternative contention that,

by analogy to the statute permitting actions for the recovery

of real estpte to be brought at any time before there had

been twenty years’ adverse possession, the cause of action

here may be brought at any time within twenty years from

the date it acerued, since, as hereinabove pointed out, appel-

lants’ property has not been taken by the city. Neither are

we of the opinion that appellants’ case is aided by section

16 of the Limitations Act, which pertains to ‘written

contracts.’’

We are of the opinion, from an analysis of the many cases,

that a cause of action such as appellants have sued on here,

must be commenced under section 15 of the Limitations Act,

(Ill. Rev. Stat. 1947, chap. 83, par. 16,) providing that RE

actions to recover damages for any injury done to real prop-

erty shall be commenced within five years next after the

cause of action accrues, and that this violates no constitu-

tional right and harmonizes with recognized principles of

law.

In accordance with the views herein expressed, the judg-

ment of the circuit court of Cook County is affirmed.

Juvoment ArrinMep.

- - ene

(5784)

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