Opposition Brief — Horn v. Chicago

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SUPREME COURT OF THE UNITED

OCTOBER TERM, 1949

No. 472

BETTY STODDARD HORN, BARBARA STODDARD

KIRKLAND, LOUIS E. STODDARD JR.; ann ETHEL

S. GARRETT ayy THE UNION TRUST COMPANY

OF PITTSBURGH, as Co-execvtors ann Co-Trustezs

unpDER THE Last Wii. anp Testament or Harry Dar.ino-

Ton, Jr., Deceasep, sade Appellants,

CITY OF CHICAGO, a MuwicipaL Corporation,

Appellee

APPEAL FROM THE SUPREME COURT OF ILLINoIs No. 30880

THERE HEARD ON APPEAL FROM THE CIRCUIT COURT OF COOK

COUNTY

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

Bensamin S. ApamMowsk1,

Corporation Counsel of the

City of Chicago,

511 City Hall,

Chicago 2, Illinois,

| Attorney for Appellee.

YL. Louis Karton,

Head of Appeals and Review Diwision;

Artuur Maem, -

| Assistant Corporation Counsel, 8

Of Counsel.

SF | eel Do- Ve

Pd

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INDEX

Svusrecr Inpex

: Page

Statement opposing jurisdiction ............... 1

Motion to dismiss or affirm __.. 23

Taste or Cases Crrep

Backus v. Fort Street Union Depot Co., 169 U. S.

I Cte ey ee ver 16

Ballard v. Hunter, 204 U. 8.241... hed cowl 5

Barnard vy. City of Chicago, 270 Il. 27............. 5, 6,13

Bay Bottoms Drainage Dist. v. Cache River Drain-

age Diat., 296 Til, 91............... 14

Brown v. City of Atlanta, 145 8. FE. 855, 167 Ga. 416. 6

Burrill v. Locomobile Co., 258 U.S. 34... 20

Chicago, Burlington & Quincy R. Rv. -" of | Chi-

cago, 166 U.S, 226 . 12

C. and EI, Ry. Co. v. McAuley, :n6 8 460......... 15, 16

Chicago Life Ins. Co. v. Cherry, 244 U.S. 25... 5

Chicago, North Shore St. Ry. Co. v. Payne, 192 Ill.

239 15

Childs, S. D., & Co. v. City of Chicago, 279 Ill. 623 14

County of Mercer v. Wolf, 237 Ill. 74....... * 14

Delphi, City of, v. Evans, 36 Ind. 90. . 6

De Lucea vy. City of North Little Rock, 142 Fed. 597 _ 6

Denver, ete, R. Co. v. Domke, 17 Pac. 777, 11 Colo.

BE, wia's cua ¥ Wd te bas Sabie au se 08 ved 6

Dixon, City of,v. , Sinow & Weinman, 350 Ill. 634. 14

Doane v. Lake St. Elev, R. R.Co., 165 1.510... 14

Dynes v. Town of Kilkenny, 189 N. W. 439, 153 Minn.

eek PRS Oe ang Bd comes Vv wg hd bw eo « 6

Ettor v. City of Tacoma, 298 U. 8. 148 19

Guaranty Savings & Loan Ass'n v. City of Spring-

field, 139 S. W. (2d) 955, 346 Mo. 79... 6

Hill-Behan Lumber Co. v. Skrainka Const. Co., 106

S.W. (2d) 483, 341 Mo. 156............... 6

Horner v. County of Winnebago, 332 Ill. App. 217. 15

Hurt vy. Citu of Atlanta, 28 8. E. 65, 100 Ga. 274 6

‘

—5526

ii INDEX

Page

Ill. Power & Light Corp. v. Peterson, 322 Ml. 342. _.. 15

Ill. Power & Light Corp. v. Talbott, 321 M1. 538... 15

In re Locust Street Subway, 179 Atl. 741, 319 Pa.

161 + 6

Kane v. City of Chicago, 384 Ill. 361, 392 Ill. 172 5, 13,14

King v. City of Rolla, 130 8. W. (24) 697, 234 Mo.

App. 16

McCammon & Lang Lumber Co. v. Trinity é BLY.

Ry. Co., 133 8. W. 247, 104 Tex. 8

Monarch Refrig. Co. v. City of Chicago, 328 Ill. App.

540 15, 16

O'Neil v. North Colorado Irrigation Co., 242 U. S.

Osborne v. Missouri Pacific Ry. Co., 147 U. 8. 248 . 17

Otis Elevator Co. v. City of Chicago, 263 Ill. 419 6, 15

Overholser v. Okl. Interurban Traction Co., 119 Pace.

127, 29 Okl. 571... . 6

Parker v. Catholic Bishop, 146 IIL. 158 . 14

Penn Mutual Life Ins. Co. v. Heiss, 141 Il. 35 13, 14, 15

People ex rel. Pratt v. Rosenfield, 399 Il. 247. 5, 13, 14, 15

People ex rel. Tyson v. Kelly, 379 Il. 297 .. 13,14

Rigney v. City of Chicago, 102 Ill. 64 15

Sauer v. City of New York, 206 U. 8. 536 aa 8

Schlosser v. Sanitary District, 299 Ill. 77 ghoty 15

Schroeder v. City of Joliet, 189 Tl. 48 a

Shaw v. Sanitary District, 267 Il. 216 15

South Park Commrs. v. Montgomery Ward € Co., 248

Til. 299 14

State ex rel. Dawson v. Parsons St. Ry., 105 Pace.

704, 81 Kan. 430 6

Stetson v. Chicago € Evanston R. R. Co., 75 Il. 74 14

Willis v. Winona, 59 Minn. 27 10

Statutes Crrep

Section 15 of Illinois Limitations Act (Chapter 83,

par. 16, Ill. Rev. Stat. 1949, Vol. 2, p. 47) 3

Section 1257 of the Judicial Code (Title 28, United

States Code, Section 1257) 4

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 472

BETTY STODDARD HORN, BARBARA STODDARD

KIRKLAND, LOUIS E. STODDARD JR.; ayo ETHEL

S. GARRETT axp THE UNION TRUST COMPANY

OF PITTSBURGH, as Co-executrors anp Co-Trustees

unper THE Last Wi. anp Testament or Harry Darine-

Ton, Jn., Deckasen, Appellants,

vs.

CITY OF CHICAGO, a Muwictpat Corporation,

Appellee

APPEAL FROM THE SUPREME COURT OF ILLINOIs No. 30880

THERE HEARD ON APPEAL FROM THE CIRCUIT COURT OF COOK

COUNTY

STATEMENT BY APPELLEE OF MATTERS AND

GROUNDS MAKING AGAINST THE JURISDICTION

OF THE SUPREME COURT OF THE UNITED

STATES.

May IT PLEASE THE Court:

City of Chicago, a municipal corperation, the appellee

herein, respectfully presents the following matters and

grounds making against the jurisdiction of this court of

the appeal herein.

Statement of the Case

The pertinent facts, all of which are undisputed, show

the following: On April 4, 1938, the appetiants commenced

an action at law in the Cireuit Court of Cook County, Illi-

nois, to recover damages for claimed injury to their abutting

property by reason of the construction by appellee of a

viaduct along a public thoroughfare for the purpose of

facilitating the flow of traffic thereon. No part of appel-

lants’ property was physically invaded by the improve-

ment, the entire structure (including the caissons upon

which it rested) being confined within the limits of the

public street, and the only consequences claimed by ap-

pellants are that their easements of light, air, view, ac-

cessibility, ingress and egress have been seriously affected.

Appellee filed a motion to dismiss on the ground that the

action had been instituted more than five years after its

accrual, and was therefore barred by the five-year statute

of limitations applicable to actions to recover damages for

injuries to real property. In support of its motion to dis-

miss, appellee filed affidavits showing that the improve-

ment was completed on April 29, 1931, which, under settled

state law, was when the cause of action for damages had

accrued,

Appellants filed objections to appellee’s motion to dismiss,

in which they contended, in substance, that to deprive them

of their easements of light, air, view, accessibility, ingress

and egress was tantamount to a ‘‘taking’’ of their prop.

erty, and that to remit them to an action at law for dam-

ages, and to apply the five-year statute of limitations in

bar of such action, deprived appellants of their property

without due process of law in violation of the Fourteenth

Amendment of the United States Constitution.

The trial court sustained appellee’s motion to dismiss,

and entered final judgment dismissing the action at ap-

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3

pellants’ costs. The Supreme Court of Illinois affirmed

the judgment, holding (1) that, in the circumstances pre-

sented, there was no ‘‘taking’’ of appellants’ property but

merely a consequential ‘‘damaging’’ thereof; (2) that no

constitutional rights of appellants, either under the State

or Federal Constitutions, were infringed by remitting ap-

pellants to an action at law for damages for any injury

claimed to have been done to their property; and (3) that

the action here was properly dismissed because not insti-

tuted within the five-year period of limitations preseribed

by state statute for such actions.

I

The judgment of the Supreme Court of Illinois does not

constitute a decision in favor of the validity of the five-

year statute of limitations, nor was the validity of that stat-

ute drawn in question on any asserted ground of repugnancy

to the Federal Constitution.

The state statute, the validity of which appellants claim

was drawn in question in the case at bar and its validity

affirmed by the judgment here appealed from, is Section

15 of ‘‘An Act in regard to limitations’’, approved April

4, 1872, which reads, in pertinent part, as follows :

“Actions * * * to recover damages for an injury

done to property, real or personal, * * ° and all

civil actions not otherwise provided for, shall be com-

menced within five years next after the cause of action

acerued.’’ (Chap. 83, Par. 16, Ill. Rev. Stat. 1949, Vol.

2, p. 47).

Appellants contend that the application of the bar of

the five-year statute of limitations to the action here was

tantamount to a decision in favor of the validity of the

statute, and hence gives this court jurisdiction of the appeal

4

by virtue of the provisions of Section 1257 of the Judicial

Code which, in pertinent part, reads a follows:

‘‘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 valid-

ity 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 valid-

ity.’ (Title 28, United States Code, Section 1257.)

It is appellee’s position that the validity of the statute

was neither drawn in question nor decided, for it readily

appears that the judgment appealed from rests upon the

basic determination that there was no ‘‘taking’’ of appel-

lants’ property because no part thereof had been physically

invaded or actually appropriated by the public improve-

ment, and that appellants’ remedy was by way of an action

at law to recover consequential damages. As clearly ap-

pears from the record, the claim of appellants that the five-

year statute should not have been applied was predicated

entirely upon their contention that the effect of the street

improvement upon their easements of light, air, view, acces-

sibility, ingress and egress constituted a ‘‘taking’’ of their

property, notwithstanding that there was no physical inva-

sion of their property. The court's ruling that the five-

year statute was applicable flowed not from any decision

as to the validity of said statute but from the court’s conclu-

sion that appellants’ property had not been “‘taken’’ but

merely damaged as a consequence of the street improve-

ment. :

Thus the question presented on this appeal is not the

validity of the state statute but its applicability to a ‘‘non-

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5

taking’”’ case. This, we submit, is not a ground of appeal

within Section 1257 of the Judicial Code.

Il

Quite apart from the mode of review here sought, the ap-

peal should be dismissed or the judgment affirmed because

no substantial Federal question is presented.

As pointed out above, the basic issue decided by the Su-

preme Court of Illinois is that no taking of private prop-

erty for public use is involved where the public improve-

ment does not result in any physical invasion or actual

appropriation of any portion of an owner’s property, but

merely in a consequential damaging thereof by reason of

affecting easements of light, air, view, accessibility, ingress

and egress.

Appellants claim that the court erred in so holding. Such

a contention, of course, does not present any question

under the Federal Constitution. (Chicago Life Insurance

Co. v. Cherry, 244 U. S. 25, 30; Ballard v. Hunter, 204 U.S.

241, 258).

However, since we are coupling our motion to dismiss

with a motion to affirm, we should like to point out that

the ruling of the Supreme Court of Illinois on this issue

is in accordance not only with the law of Illinois but of

many other state jurisdictions, as well as of this court. We

quote from the opinion of the Supreme Court of Illinois

as follows:

‘The test applied by this court and also by the Fed-

eral court, in determining whether real estate has been

taken for public use within the meaning of our consti-

tution, 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 Chi-

cago, 392 Il. 172; People ex rel. Tyson v. Kelly, 379

Til. 297; Cuneo v. City of Chicago, 379 TN. 488; Barnard

ee

6

v. City of Chicago, 270 Ill. 27; Otis Elevator Co. y.

City of Chicago, 263 ill. 419; Schroeder v. City of

Joliet, 189 Ill. 48; Northern Transportation Co. v. City

of Chicago, 99 U. 8. 635.).’’

The Illinois rule is not unique on this point, but has been

followed in many other jurisdictions where the courts have

held that where there is no physical invasion, there is no

‘*taking’’ of property in the constitutional sense, and the

appropriate remedy in such instance is an action at law for

consequential damages. (DeLucca v. City of North Little

Rock, (C. C. E. D. Ark. W. D.) 142 Fed. 597; Brown vy.

City of Atlanta, 145 8. E. 855, 167 Ga. 416; Hurt v. City of

Atlanta, 28 8S. E. 65, 100 Ga. 274; Hill-Behan Lumber Co.

v. Skrainka Const. Co., 106 S. W. (2d) 483, 341 Mo. 156;

Guaranty Savings & Loan Ass’n. v. City of Springfield,’

139 S. W. (2d) 955, 957, 346 Mo. 79; McCammon & Lang

Lumber Co., et al. vy. Trinity & B. V. Ry. Co., 133 8. W.

247, 104 Tex. 8; Dynes v. Town of Kilkenny, 189 N. W. 439,

440, 153 Minn. 11; City of Delphi v. Evans, 36 Ind. 90, 96;

State ex rel. Dawson v. Parsons St. Ry. & Elec. Co., et al.,

105 Pac. 704, 705; 81 Kan. 430; Overholser, et al. v. Inter-

urban Traction Co., 119 Pac. 127, 131-132; 29 Okl. 571;

Denver € S. F. R. Co. v. Domke, 17 Pac. 777, 781; 11 Colo.

247; In re Locust Street Subway, 179 Atl. 741, 319 Pa. 161;

King v. City of Rolla, 130 8. W. (2d) 697, 234 Mo. App. 16.)

Appellants make much of the fact that the erection of the

improvement necessitated the sinking of caissons in the

street to support the viaduct, and that this constituted a

permanent appropriation, and hence a ‘‘taking’’, of the

necessary sub-highway space for that purpose, to the exclu-

sion of appellants’ right to the use thereof as owners

of the fee to the center of the street. On this point, the

Supreme Court of Illinois held that the use of such sub-

highway space for the purpose of sinking caissons to sup-

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4

_

7

port the viaduct was wholly within the dominant public

easement of use of the street fot purposes of public travel,

hence imposing no/Jadditional servjtude upon appellants’

property, and did not constitute a *‘taking’’ of any part

thereof. The opinion of the Hlinois Supreme Court an-

swered appellants’ contention on this issue in the following

words:

‘‘ 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’ owner-

ship 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 easement effective, and for that pur-

pose 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 Ill. 634.)

* * * The appropriation of sidewalk space in the con-

struction 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 sub-

ject. Hence, such an appropriation of sidewalk space

does not come within the constitutional prohibition that

private property shall not be taken or damaged for

public use without just compensation.’’

Appellants take the position that the decision of the

Illinois Supreme Court that no ‘‘taking’’ of property was

involved under the facts of the instant case is contrary

to the decisions of the courts of other states. We have

already indicated that the courts of last resort of many

other state jurisdictions hold views in conformity with

those expressed by the Illinois Supreme Court in the opin-

ion at bar. However, even if there be contrariety of opin-

ion among the several states on this proposition, it does

not follow that the ruling of the Supreme Court of Illinois

in the case at bar presents any federal constitutional ques-

tion for decision by this court. Indeed, this court has defi-

nitely held that the question of whether the impairment

of an easement by a public improvement constitutes a

‘*taking’’ of property where there has been no physical

invasion or actual appropriation of any part of an owner’s

property, presents merely a question of local property law,

and that a determination upon such a question by the

highest court of a state will be accepted by this court as

conclusive upon it and, further, that it is not within the

province of this court to compel conformity between the

decisions of the several states upon that proposition.

In Sauer v. City of New York, 206 U. S. 536, the City

of New York, pursuant to lawful authority, constructed an

elevated iron viaduct for public travel along a public street,

as a result of which plaintiff’s access to his abutting prop-

erty and the free and uninterrupted use of light and air

were impaired. Plaintiff brought an action to enjoin the city

from maintaining the viaduct, or, in the alternative, for the

recovery of damages caused thereby. There was judgment

for the city, which was affirmed on appeal, and plaintiff

sued out a writ of error to this court on the ground that

he had been deprived of his property without due process

of law, in that his property had been taken without com-

pensation, in violation of Section 1 of the Fourteenth

Amendment of the Constitution of the United States, a con-

tention similar to the one made by the appellants here.

This court recognized that such easements constituted

property rights, but were so far subservient to the dominant

right of the public to all legitimate uses of the street for

public travel that plaintiff did not sustain any ‘‘damage”’

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in the legal or constitutional sense for which any recovery

could be had. At pages 543-544, this court said:

9

‘«The plaintiff now contends that the judgment after-

wards rendered by the Supreme Court of New York, in

conformity with the opinion of the Court of Appeals,

denied rights secured to him by the Federal Consti-

tution. This contention presents the only question

for our determination, and the correctness of the

principles of local land law applied by the state courts

is not open to inquiry here, unless it has some bearing

upon that question. But it may not be inappropriate

to say that the decision of the Court of Appeals seems

to be in full accord with the decisions of all other

courts in which the same question has arisen. The

state courts have uniformly held that the erection

over a street of an elevated viaduct, intended for gen-

eral public travel and not devoted to the exclusive use

of a private transportation corporation, is a legitimate

street improvement equivalent to a change of grade;

and that, as in the case of a change of grade, an owner

of land abutting on the street is not entitled to dam-

ages for the impairment of access to his land and the

lessening of the circulation of light and air over it.

Selden v. Jacksonville, 28 Florida, 558; Willis v. Wi-

nona, 59 Minnesota, 27; Colclough v. Milwaukee, 92

Wisconsin, 182; Walish v. Milwaukee, 95 Wisconsin,

16; Home Building Company v. Roanoke, 91 Virginia,

' 52 (cited with apparent approval by this court in

Meyer v. Richmond, 172 U. 8S. 82, 95); Willetts Man-

ufacturing Co. v. Mercer County, 62 N. J. Law, 95;

Brand v. Multnomah County, 38 Oregon, 79; Mead v.

Portland, 45 Oregon, affirmed by this court in 200 U. 8S.

148; Sears v. Crocker, 184 Massachusetts, 586;

(Semble) DeLucca v. North Little Rock, 142 Fed. Rep.

597.”’

10

This court then quoted from the case of Willis v. Winona,

59 Minn. 27, as follows: .

‘**The doctrine of the courts everywhere, both in

England and in this country (unless Ohio and Ken-

tucky are excepted), is that so long as there is no ap-

plication of the street to purposes other than those of

a highway, any establishment or change of grade made

lawfully, and not negligently performed, does not

impose an additional servitude upon the street, and

hence is not within the constitutional inhibition against

taking private property without compensation, and is

not the basis of an action for damages, unless there be

an express stati ‘e to that effect. That this is the rule,

and that the facts of this case will fall within it, is too

well established by the decisions of this court to re-

quire the citation of authorities of other jurisdic.

tions. . . .’’’ (206 U. S. 536, at p. 545.)

This court then pointed out that the question of the cor-

rectness of the rule adopted by the state-court did not pre-

sent any question under the Federal Constitution, and that

it would accept the state court determination as conclusive

upon it. At pages 545-546, this court said:

‘*But, as has been said, we are not concerned pri-

marily with the correctness of the rule adopted by the

Court of Appeals of New York and its conformity with

authority. This court does not hold the relation to the

controversy between these parties which the Court of

Appeals of New York had. It was the duty of that

court to ascertain, declare and apply the law of New

York, and its determination of that law is conclusive

upon this court.’’

This court then proceeded to consider the question whether

plaintiff had been denied the due process of law secured

to him by the Fourteenth Amendment, in that the law of

New York denied him any compensation whatever for the

damage to his easements of light, air, and access, and that

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il

no remedy was provided by state law therefor. In this

respect the Sauer case presented an even stronger situa-

tion for intervention by this court than the case at bar

where a remedy is provided in such a case by way of an

action at law for damages.

This court held that no denial of due process of law was

involved, saying at pages 547-548:

ll

‘‘Has the plaintiff been deprived of his property

without due process of law? The viaduct did not in-

vade the plaintiff’s land. It was entirely outside that

land. But it is said that appurtenant to the land there

were easements of access, light and air, and that the

construction and operation of the viaduct impaired

these easements to such an extent as to constitute

a taking of them. The only question which need here

be decided is whether the plaintiff had, as appurtenant

to his land, easements of the kind described; in other

words, whether the property which the plaintiff al-

leged was taken existed at all. The court below has

decided that the plaintiff had no such easements; in

other words, that there was no property taken. It is

clear that under the law of New York an owner of land

abutting on the street has easements of access, light

and air as against the erection of an elevated roadway

by or for a private corporation for its own exclusive

purposes, but that he has no such easements as against

the public use of the streets or any structures which

may be erected upon the street to subserve and pro-

mote that public use. The same law which declares

the easements defines, qualifies and limits them. Surely

such questions must be for the final determination of

the state court. It has authority to declare that the

abutting land owner has no easement of any kind over

the abutting street; it may determine that he has a

limited easement; or it may determine that he has an

absolute and unqualified easement. The right of an

owner of land abutting on public highways has been

a fruitful source of litigation in the courts of all the

States, and the decisions have been conflicting, and

12

often in the same State irreconcilable in principle,

The courts have modified or overruled their own deci-

sions, and each State has in the end fixed and limited,

by legislation or judicial decision, the rights of abutting

owners in accordance with its own view of the law and

public policy. As has already been pointed out, this

court has neither the right nor the duty to reconcile

these conflicting decisions nor to reduce the law of the

various States to a uniform rule which it shall an-

nounce and impose. Upon the ground, then, that under

the law of New York, as determined by its highest

court, the plaintiff never owned the easements which

he claimed, and that therefore there was no property

taken, we hold that no violation of the Fourteenth

Amendment is shown.’’

It is submitted that this court, in the Sauer case, has

disposed of all the contentions of appellant against them

from the standpoint of any issues sought to be raised un-

der the Federal Constitution. Appellants cite numerous

cases to the effect that easements of light, view, air, access,

ingress and egress are property rights, and that depriva-

tion or impairment of such easements requires the payment

of compensation therefor. This is true where a state law

so provides, and the law of Illinois is not to the contrary.

These cases have no application here, however, because

appellants have been accorded an adequate remedy for the

recovery of such compensation in an action at law, and

it is only because of their delay in bringing such action

that recovery has been denied.

Cases like Chicago, Burlington & Quincy R. R. Co. v. City

of Chicago, 166 U. 8. 226, urged upon this court by appel-

lants, are likewise sharply distinguishable from the case

at bar. There the city condemned a right of way over the

railroad’s property, thus involving an actual physical

invasion, notwithstanding that what the city took was not

a fee title bunt merely an easement to cross. This Court con-

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ie

sidered that this constituted an actual appropriation of the

railroad’s property for public use, and that it would under-

take to inquire whether the state court judgment complain

of was ‘‘in absolute disregard’’ of the ‘‘owner’s right! to

just compefisation.’’ In the case at bar, however, there

was no physical invasion of appellants’ property, not even

to the extent of an easement through, over and upon appel-

lants’ property, nor-was there any denial of appellants’

right to recover just compensation. On the eontrary, the

right of-an owner to recover just compensation for prop-

erty damaged for publie use is clearly recognized by the

decision of the Supreme Court of Illinois here appealed

from.

In view of the claim by appellants that the decision in the

case at bar constitutes a departure from established IIli-

nois law on the issues involved, we should like to enumerate

at this point the propositions of law decided by the Supreme

Court of Illinois in the case at bar, together with the prior

decisions of that court in support thereof.

13

(1) Where there is no physical invasion of the owner’s

property, the destruction or impairment of easements of

accessibility, light, air and view, due to the construction of a

public improvement in a proper and lawful manner, is not

a ‘‘taking’’ of property within the meaning of Article II,

Section 12, of the Illinois Constitution. (People ex rel.

Pratt v. Rosenfield, 399 Ill. 247, 251-252; Kane v. City of

Chicago, 384 I. 361, 367-368, 392 Il. 172, 179; People eax rel.

Tyson v. Kelly, 379 Ul. 297, 306-308; Barnard v. City of Chi-

cago, 270 Ill. 27, 31; Schroeder v. City of Joliet, 189 Ill. 48,

53; Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, 43.)

(2) The use of sub-sidewalk space for the purpose of

sinking caissons to support the viaduct was within the

dominant public easement of use of the street for public

travel. Hence it did not impose an additional servitude

——

14

upon plaintiffs’ fee title to the center of the street, and did

not constitute a ‘baking’ of any part of their property.

(Kane v. City of Chicago, 384 Ill. 361, 364, 368; S. D. Childs

€ Co. v. City of Chicago, 279 Il. 623, 626; City of Dixon v. /

Sinow & Weimman, 350 Il. 634, 636-637.)

(3) Where there is no ‘‘taking’’ of property, and the.

case is one of consequential damages only, the Illinois con-

stitution imposes no requirement to bring condemnation

proceedings in advance of making the improvement, and

the abutting property owner cannot compel the public

authority to institute proceedings to ascertain damages,

nor enjoin the improvement for failure to do so, but is

remitted to his action at law for damages. (People ez rel.

Pratt v. Rosenfield, 399 Ill. 247, 250-251; People ex rel.

Tyson v. Kelly, 379 Ill. 297, 300-303; Bay Bottoms Drain-

age District v. Cashe River Drainage District, 295 Ill. 301,

308; S. D. Childs € Co. v. City of Chicago, 279 Ill. 623, 627;

South Park Commissioners v, Montgomery Ward € Co.,

248 Ill. 299, 310; County of Mercer v. Wolff, 237 Ill. 74, 76;

Doane v. Lake Street Elevated R. R. Co., 165 Tl. 510; Parker

v. Catholic Bishop, et al., 146 Ill. 158, 165-166; Penn Mutual

Life Ins. Co. v. Heiss, 141 Ill. 35, 55; Stetson v. Chicago &

Evanston R. R. Co., 75 Ul. 74, 76-77.)

(4) The right to bring an action at law for consequential

damages, where there is no actual ‘‘taking’’ of any por-

tion of a complaining owner’s property, satisfies the tate

constitutional guaranty of just compensation and the re-

quirements of due process of law. (People ex rei. Pratt

v. Rosenfield, 399 Ill. 247, 251; County of Mercer v. Wolff,

237 Ill. 74, 76; Parker v. Catholic Bishop, et al., 146 Il.

158, 165-166.) y

(5) Prior to the appearance of the word ‘‘damaged”’

in the just compensation clause of the Constitution of

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_ nem

15

1870, no compensation at all was r2coverable for conse-

quential damages to property resulting from a public ‘m-

provement, where no property was actually taken. (Illinois

Power & Light Corporation v. Talbott, 321 Ill. 538, 545-547 ;

Otis Elevator Co. v. City of Chicago, 263 Ill. 419, 423-424;

,_ Rigney v. City of Chicago, 102 Ill. 64, 81; Penn Mutual Life

Ins. Co. v. Heiss, 141 Ill. 35, at pp. 56-57.)

(6) It was for the very purpose of satisfying and imple-

menting this new constitutional guaranty of just compensa-

tion in non-taking cases added by the 1870 Constitution

that the common-law action for consequential damages was

made available. (People ex rel. Pratt v. Rosenfield, 399

Ill. 247, 251; Illinois Power & Light Corp. v. Peterson,

322 Ill. 342, 346-347; Illinois Power & Light Corp. v. Tal-

bott, 321 Ill. 538, 545; Penn Mutual Life Ins. Co. v. Heiss,

141 Ill. 35, 56-57).

(7) The five-year statute of limitations has been con-

sistently applied in Illinois to bar actions for consequential

damages to property resulting from a public use. (Schlos-

ser v. Sanitary District of Chicago, 299 Ill. 77, 83; Shaw v.

Sanitary District of Chicago, 267 lll. 216; C. € E.1. Ry. Co.

v. McAuley, 121 Ill. 160, 163-164; Monarch Refrigerating Co.

v. City of Chicago, 328 Ill. App. 540 (Lv. to app. den. ; 331

Ill. App. xiv) ; Horner v. County of Winnebago, 332 Ill. App.

217 (lv. to app. den., 334 Ill. App. Adv. Shts. No. 4, p. ii)).

(8) There is no dispute in point of fact, and it is also well

settled as a legal proposition, that plaintiffs’ cause of ac-

tion accrued on April 29, 1931, when the viaduct was com-

pleted and opened to public travel. From this it follows in-

escapably that plaintiffs’ action was barred because not

instituted within five years from that date. (Schlosser v.

Sanitary District of Chicago, 299 Ill. 77, 83; Chicago, North

Shore St. Ry. Co. v. Payne, 192 Ill. 239, 247; C. d E.1. R. R.

a

16

Co. v. McAuley, 121 Ill. 160, 163-164; Monarch Refrigerat-

ing Co. v. City of Chicago, 328 Ill. App. 540 (lv. to app. den.;

331 Ill. App. xiv)).

In the light of the foregoing well-settled State rules of

decision, the claim of appellants that the decision at bar

constitutes a departure from prior Illinois law is revealed

to be without merit.

Ill

Remitting a property owner, in a non-taking case, to an

action at law for his consequential damages, does not in-

fringe upon any of his rights under the due process clause

of the Fourteenth Amendment of the Federal Constitution.

As already pointed out above, the claim of appellants

that the five-year statute of limitations should not have

been applied does not present the question of the validity

of the five-year statute, but rather the issue whether a

‘*taking’’ of property was involved on the facts here pre-

sented. We shall now proceed to show that making avail-

able an action at law for damages, in a non-taking case,

satisfies the requirements of due process of law under the

Federal Constitution. This court has had numerous oc-

casions to pass on this precise issue and has repeatedly de-

clared that the grant of such a remedy in such an instance

does not involve any denial of due process.

In Backus vy. Fort Street Union Depot Co., 169 U.S. 557,

which involved a proceeding to determine just compensa-

tion, the Supreme Court stated that all that was essential

to satisfy the requirements of due process of law was that

in some appropriate way, before some properly constituted

tribunal, inquiry shall be made as to the amount of compen-

sation, and when this has been provided for, there is that

due process of law which is required by the Federal Con-

stitution.

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17

After adverting to the rule that, in this class of cases, it

would accept the construction placed by the highest court

of the State upon its own constitution and statutes as cor-

rect (p. 566), this court further stated that a property owner

has no federal constitutional right to have the amount of

his just compensation finally determined and paid before

yielding possession, even in a ‘‘taking’’ case (pp. 567-568).

This court then set forth the essential requirements of due

process of law under the Federal Constitution, saying

(p. 569) :

‘* All that is essential is that in some appropriate way,

before some properly constituted tribunal, inquiry shall

be made as to the amount of compensation, and when

this has been provided there is that due process of law

which is required by the Federal Constitution. Bauman

v. ltoss, 167 U.S. 548, 593.’’

Finally, with particular reference to the case before it,

this court said (p. 575) :

‘*But a more complete and satisfactory answer is

that whatever error there may have been affords no

ground for the interference of this court. The respond-

ents were not thereby deprived of any rights secured

by the Federal Constitution. They werg not denied

‘due process of law.’ The proceedings wefe had before

a duly constituted tribunal, in accordance with the

declared law of the State, with full opportunity to be

heard.”’ |

a

In Osborne v. Missouri Pacific Ry. Co., 147 U. 8. 248, an

abutting property owner sought to enjoin the laying of

tracks for a steam railroad in a public street fronting on his

property, on the ground that there had been no ascertain-

ment or payment of just compensation in advance of the

making of the improvement. The ges claimed were

18

street, would occasion noise, smoke and damage from fires,

and would cause the abutting structure to shake and vibrate

from the passage of engines and cars over the street in

proximity to the premises. The trial court ordered the

equity suit to be dismissed without prejudice to plaintiff's

right to sue at law for the damages claimed to have been

sustained. This court affirmed the decree of dismissal, hold-

ing that under the Missouri law, which was binding upon

this court, an owner whose property was not taken but

merely suffered consequential damages as a result of a pub-

lic improvement was not entitled to have his compensation

ascertained or paid in advance of the making of the im-

provement, but possessed an adequate remedy by an action

at law, for damages. At page 259, this court said:

‘But where there is no direct taking of the estate

itself, in whole or in part, and the injury complained

of is the infliction of daraage in respect to the complete

enjoyment thereof, a court of equity must be satisfied

that the threatened damage is substantial and the

remedy at law in fact inadequate before restraint will

be laid upon the progress of a public work. And if the

case made discloses only a legal right to recover dam-

ages rather than to demand compensation, the court will

decline to interfere.’’

We submit, in the light of the foregoing, that the adequacy

of the legal remedy available to appellants under Illinois

law is not open to doubt, and that there is no merit in the

contention that appellants suffered any deprivation of rights

guaranteed by the Federal Constitution by being required

to resort to an action at law to recover their consequential

damages. Indeed, the provision for the recovery of conse-

quential damages, from the standpoint of federal constitu-

tional guarantees, would seem to be supererogatory,—the

grant of a right out of a sense of fairness but not out of

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—-

19

constitutional necessity. As this court said in Ettor v. City

of Tacoma, 228 U. 8. 148, at p. 150:

‘*In the absence of legislation requiring compensa-

tion for such damage the general rule of law is that a

municipality in making, grading and improving streets

is the agent of the State, exercising in the performance

of such work a governmental power, and is not liable

for consequential injuries to property abutting, if it

keep within the street and use reasonable care and skill

in doing the work. 4 Dillon Municipal Corporations,

5th ed., $$ 1674; Smith v. Corporation of Washington,

20 How. 135; Transportation Co. v. Chicago, 99 U. 8.

635, 641; Humes v. Knorville, 1 Humph. (Tenn.) 403."

Since appellants could not have claimed a violation of

federal constitutional guaranties even had the Illinois law

denied them all right to compensation for consequential

damages, it is even more clear that they have suffered no

unconstitutional deprivation by being remitted to their

action at law for damages, with the right which it affords to

a jury trial.

IV

To apply the bar of the five-year Illinois statute of limi-

tations is not so burdensome or unreasonable a restriction

upon the exercise of the right granted to bring an action

at law for damages in a “non-taking” case as to constitute

any denial of due process of law under the Federal Consti-

tution.

Much of appellants’ argument is premised upon the

contention that to have limited them to the five-year period

of limitations somehow deprives them of substantial rights

under the Federal Constitution. It has already been amply

demonstrated that no constitutional rights of appellants

have been invaded by application of the bar of the five-year

statute of limitations.

ee _

20

In considering whether appellants have actually been put

to any disadvantage, even as compared to persons whose

property had actually been taken by the street improvement

in question, it is important to bear in mind that appellants

had five years after the completion of the improvement

within which to bring their action. In point of fact, there-

fore, appellants possessed a distinct advantage over the

property owners whose property was taken and who were

therefore made parties to the condemnation proceedings

prior to or during the making of the improvement. Such

parties to the proceeding were necessarily compelled to

predict what the full extent of their damages would be by

reason of the improvement which had not yet been put into

operation. On the other hand, appellants here had the

opportunity to determine, within five years after the im-

provement was completed and in operation, what the full

extent of the damages to their property would be. It is

submitted, therefore, that appellants cannot successfully

urge that they have suffered any disadvantage by reason

of the application of the five-year limitation period to their

cause of action. It is clear that appellants have suffered

no practical detriment by being limited to their common-

law action for damages and by being required to bring it

within five years after its accrual. They likewise cannot

successfully urge that they have been deprived of any legal

or constitutional rights by reason thereof. The opinion

of the Supreme Court of Illinois rendered in the case at

bar points out that there is no constitutional right to a

particular length of a period of limitations, just so the

period is reasonable. (Citing Burrill v. Locomobile Co., 258

U.S. 34.)

In O’Neil v. North Colorado Irrigation Company, 242

U.S. 20, plaintiff brought suit to quiet title to alleged water

rights on a certain creek and to enjoin the defendant from

closing plaintiff’s ditch under an assertion of a superior

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21

right. The defendant justified under a judicial decree

establishing its priority to the waters of the creek and

under a state statute making the decree conclusive after

four years from its rendition even as against persons (like

plaintiff) whom the statute did not require to be made par-

ties to the proceedings because residing in a different

water district. The plaintiff contended that to invoke the

decree, to which he was not a party, against him, and to

apply the four-year statute to bar his water right which

was conceded to be an interest in real property), deprived

him of his property without due process of law.

This Court held that the four-year period was not an

unreasonable limitation, and that the application of the

bar of the statute against the plaintiff did not invade his

constitutional rights, and the fact that he was not entitled

to a hearing in the proceedings in which the decree was

rendered was not a valid objection, since he had four years

thereafter within which to have a hearing in an action

brought at his own instance. This Court said, at page 26:

‘So far as the last objection goes the answer is that

if it be true that the plaintiff was not entitled to be

heard on the defendant’s decree, still there was nothing

to hinder the State from providing that if he took no

step to assert his rights within a reasonable time after

the judicial assertion of an adverse title, the decree be-

ing a public fact, he should lose those rights. See

Barker v. Harvey, 181 U. 8S. 481; Soper v. Lawrence

Brothers Company, 201 U. S. 359; 367; 368; American

Land Co. v. Zeiss, 219 U. 8. 47, 60; Montoya v. Gon-

zales, 232 U. S. 375, 378.’

And so here, the appellants had five years after comple-

tion of the improvement within which to bring their action

for damages, if any, and the fact that they were not made

parties to the condemnation proceedings gives them no

ground to urge that the application of the five-year bar of

=

Section 15 of the Illinois Limitations Act infringes upon

their constitutional rights.

99

SS

Conclusion

It is respectfully submitted that the questions raised by

the appellants, on which the decision of the cause depends,

are so wanting in substance as not to require further argu-

ment. A motion to dismiss or affirm is therefore presented

herewith.

Respectfully submitted,

Bensamin S. ApAMOwSKI,

Corporation Counsel of the City of Chicago,

511 City Hall, Chicago 2, Illinois,

Attorney for Appellee.

L. Lovis Karton,

Head of Appeals and Review Division;

Artuur Mac,

Assistant Corporation Counsel,

Of Counsel.

—_

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1949

No. 472

BETTY STODDARD HORN, BARBARA SYODDARD

KIRKLAND, LOUIS E. STODDARD JR.; anp ETHEL

S. GARRETT ayn THE UNION TRUST COMPANY

OF PITTSBURGH, as Co-executrors anp Co-TrusTEes

unpER THE Last Witi anp TestaMEnt oF Harry Dar.ine-

Ton, Jr., DECEASED, a Appellants,

CITY OF CHICAGO, a MunictraL Corporation,

Appellee

AppraAL From THE Supreme Corer or ILLINoIs

No. 30880

THERE HEARD ON APPEAL FROM THE CIRCUIT COURT OF COOK

COUNTY

MOTION OF APPELLEE TO DISMISS OR AFFIRM

May it PLease THe Court:

Comes now the City of Chicago, a municipal corporation,

appellee herein, by Benjamin S. Adamowski, its corporation

counsel, and moves the court to dismiss with costs the appeal

taken herein to this court by Betty Stoddard Horn, Barbara

Stoddard Kirkland, Louis KE. Stoddard, Jr., and Ethel 8.

Garrett and The Union Trust Company of Pittsburgh, as

24

Co-executors and Co-Trustees under the Last Will and

Testament of Harry Darlington, Jr., Deceased, appellants

herein, upon the following grounds:

(1) The judgnient of the Supreme Court of Illinois

here appealed from was not rendered in a case where

there was drawn in question the validity of a state

statute on any ground of repugnancy to the Federal

Constitution, nor did it constitute a decision in favor of

the validity of any state statute.

(2) The judgment of the Supreme Court of Illinois

was based primarily upon determinations of questions

of local law not open to re-examination in this court.

(3) No substantial federal question affording a basis

for a review by this court is presented on this record.

In the aiternative, appellee moves this court to affirm the

judgment of the Supreme Court of Illinois on grounds (2)

and (3) aforementioned, and on the additional ground that

the federal questions which appellants seek to raise in this

court are no longer debatable in view of the prior decisions

of this court, and that the decision of the Supreme Court

of Illinois is in all respects in conformity with the rulings

of this court upon such questions.

Respectfully submitted,

Bensamin S. ADAMOWSKI,

Corporation Counsel of the

City of Chicago,

511 City Hall,

Chicago 2, Illinois,

L. Lovis Karrton, Attorney for Appellee.

Head of Appeals and Review Division,

Artuur Maaip,

Assistant Corporation Counsel,

Of Counsel.

(5526)

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