City of Mt. Carmel v. Shaw , 52 Ill. App. 429 ( 1894 )

Mr. Justice Sample

delivered the opinion of the Court.

The appellees were the owners and in possession of lot 329, situated on the north side of Sixth street, in the city of Mt. Carmel, Illinois, near the center in width of which is located their large dwelling house, in which they have resided for about thirty years. On each side of the front of their house, in the street, are two large maple trees, about forty feet in height and two in diameter, with ample branches, which afford very desirable shade to the house and lot in summer, protection against dust and shelter against storms. They were planted about the year 1857, and the nearest is situated six feet from the south line of appellee’s lot on north line of Sixth street, as the- city was originally platted, as shown by an amended plat of date October 15, 1822, signed by the attorney in fact of the proprietors, which, as conceded by counsel, makes the dedication at common law. The sidewalks heretofore constructed were always placed between said lot and trees, to which no one made objection, as the trees supplied a pleasant shade for pedestrians, under which, in the heat of summer, they often paused to cool and refresh themselves.

In July, 1891, the city council passed "an ordinance in relation to lawns and sidewalks, and narrowing or cutting down the width of streets, and donating certain portions of ground to the property holders.”

By Sec. 4, it was provided “ that a strip two feet wide next to the property, lands, lot or lots, abutting on said streets shall be, and is hereby vacated, donated and given to and shall be a part of said lands, lot or lots.”

Sec. 5. “ That six feet * * * next to the property, lands, lot or lots, on both sides of said streets, shall be set apart upon which to build sidewalks.” It recognized the streets as being ninety-nine feet in width.

The ordinance further provided for a survey to be made in accordance with its provisions, which was done, and a plat made which was approved by the council. The surveyor testified: “ I stuck stakes along Sixth street inside the line next the street for the proposed side walk. I placed the stakes eight feet from where I found the original line on Sixth street. I intended to leave two feet north of the six-foot sidewalk. If built that way, it would' be vacating two feet between the line of the fence and the sidewalk.

On July 25, 1892, the city council passed an ordinance requiring that the owners of lots should construct a brick sidewalk six feet in width, on the north side of Sixth street, and thereby relieve their property from special taxation. “ Said sidewalk shall be made and constructed along the outside li/ne of said street and adjoining the property, lands, lot or lots, abutting on said street.” There is no other direction in the ordinance as .to the location of the sidewalk.

The city, in constructing the sidewalk under said ordinance, recognized the outside line of Sixth street as the one established by the surveyor, under the ordinance passed in July, 1891, whereby two feet off each side of the street was donated to the adjoining lot owners, thereby extending it into the street, so as to include' the larger part of the body of said trees, which the city officials proposed to cut down as being in the way of said improvement. Thereupon the appellees filed their bill'in chancery, alleging the facts substantially as above set forth, except there was no specific reference to the ordinances; averring there was no public or other necessity for the destruction of the valuable shade trees; that there was sufficient room between appellee’s ■south line, or north line of the ninety-nine foot street, and the trees, to build said walk without damage to said trees; that to destroy them would, result in irreparable damages to the owners of the lots, as well as injury to the public, and prayed for and obtained a writ of injunction.

The answer admits the substantial facts set up in the bill but denies the conclusions reached, that there was no necessity for destroying the trees, or that such destruction would occasion irreparable damages; avers the passage of the ordinance of 1892, and that the outside line of said walk would bring from one-half two two-thirds of the diameter of said trees within it and hence the necessity for their removal, which it is ^affirmed the city has a right, in its discretion, to do. Issue was joined, and hearing had, upon which a decree was entered in favor of appellees, by which it was ordered and adjudged by the court “that the defendant, the City of Mt. Carmel, Illinois, be forever and perpetually restrained from cutting, digging away or from destroying or interfering with said shade trees * * * excepting within six feet of the true south line of said lot 329,” whereupon the city took this appeal and asks a reversal on the broad ground that as the trees are in the street it has the plenary power to cut them down and remove them in its discretion, the exercise of which discretion, in the absence of bad faith, is not subject to review by the courts.

Three questions may be said to arise in regard to the exercise of power by such a corporation as appellant. 1. Is such exercise of power impliedly or expressly authorized by a grant ? 2. Is it in pursuance of or in accordance with the method prescribed ? 3. Is the mode of exercise reasonable where there are no limitations ?

The courts have the right to make these inquiries and it is their duty to apply these tests as occasion demands; for such corporations only have such powers as are conferred expressly or by necessary implication. Petersburg v. Maffin, 14 Ill. 193; Low v. People, 87 Ill. 385. And their acts beyond such powers are void. Agnew v. Brall, 124 Ill. 312.

If the mode of exercise of the power is prescribed, that mode must be followed. Gaddis v. Richland County, 92 Ill. 119.

Where the mode of exercise of the power is not prescribed by the charter but is left discretionary with the corporate officials, the mode determined upon, if unreasonable or oppressive, will be held invalid. Brush v. City of Carbondale, 78 Ill. 74; Lakeview v. Tate, 130 Ill. 247.

Applying these tests to the acts of appellant, the law determines that See. 4 of the ordinance of July, 1891, donating and vacating “a strip two feet wide next to the property, lands, lot or lots, abutting on said street ” —Sixth street— was an exercise of power by the city not authorized, and therefore void. Whether the city wa^ invested with the fee in the streets or an easement, a trust was imposed for the use of the public. The power to vacate does not include the power to vacate only a portion but all of the street, when it is determined that the street as such is no longer required for such use. Smith v. McDowell, No. 2, Vol. 35 N. E. Rep. p. 141.

With Sec. 4 of said ordinance eliminated, Sec. 2, which is a valid provision, requires that six feet next to the lots on Sixth street shall be set apart upon which to build sidewalks. This section may stand, though the other section is invalid.

An ordinance going beyond the power of the corporation may be held valid so far as the power extends, and ultra vires as to the residue. Kittering v. Jacksonville, 50 Ill. 39; Harbaugh v. Monmouth, 74 Ill. 367; Poyer v. Village of Des Plaines, 123 Ill. 111; Wilbur v. City of Springfield, Ibid. 395.

Therefore, under the provisions of said ordinance of 1891, the city was required to utilize the six feet next to appellees’ lot for the location of the sidewalk.

The ordinance of 1892, under which the sidewalk in question was required to be constructed by appellees, also provided that “ said sidewalk shall be made along the outside line of said street and adjoining the lots abutting on said street.” Clearly, then, the city, in attempting to locate said sidewalk two feet from the outside line of said street, was violating the valid part of its own law. It is clearly proven that the sidewalk can be constructed between such outside line and said trees, in which case to destroy trees of such age, dimensions, beauty and utility as these are shown to be, would be intolerably wanton and oppressive. The planting and cultivation of trees are encouraged by the State and Nation City and village authorities are expressly empowered to plant trees upon the streets. Art. 5, Sec. 1, Cl. 8 of Chap. 24, p. 463, Starr & C. Township authorities are authorized to offer premiums and to take such action as shall induce the planting and cultivation of trees along highways in such towns, and to protect and preserve trees standing along or on highways. Art. 4, Sec. 1, Cl. 6, Chap. 139, Starr & C., p. 2412. By the act of 1887, Yol. 3, Starr & C., p. 56, it is made the duty of the governor of the State “ annually in the spring, to designate by official proclamation, a day to be designated as ‘ Arbor Day,’ to be observed throughout the State as a day for planting trees, shrubs and vines about the homes and along the highways and about public grounds within the State, thus contributing to the wealth, comforts and attractions of our State.” These laws represent the deep sentiment and spirit of the people and declare a fixed public policy, which public officials must recognize and observe.

Trees are especially adapted to beautify and adorn the streets of the residence portion of a city, and very materially contribute to the enhancement of the value of such property, as well as to the health, comfort, pleasure and good taste of the inhabitants. To wantonly destroy a noble tree, especially if planted by the hand of man for a useful purpose, which for long yearn it has served, shocks a tender sentiment in our natures, well represented and expressed in that familiar song of “Woodman, Spare That Tree.”

The fee in the street adjacent to lot 329 is in the appellees, as is conceded by counsel. Whether it is or not, the appellees have an interest in the preservation of these trees, as the owners of property and as residents of the city. Shade trees standing just within the curbing of a sidewalk in a street do not constitute a nuisance, and the city may be enjoined from destroying them. Bills v. Belknap, 36 Iowa, 583; Patterson v. Vail, 43 Iowa, 142. In the Bills case it is said by Chief Justice Beck, “ The State has adopted a policy encouraging the growth of trees and discouraging their wanton destruction. The tastes and comfort of the people demand that this policy should be enforced, and we confess that we have no sympathy with that spirit of vandalism which would unnecessarily remove the ornaments of the country, whether they were erected by the hand of industry or are the bounteous production of nature.” He further declares that the determination of the public officers that the trees should be destroyed is not so far judicial that it is not subject to review by the courts. That such officers are not supreme, but must act in the interest of the public and in accordance with the spirit of the laws of the State.

There is no proof in this case that the trees in controversy were planted by authority, but as is said in the case of Bliss v. Ball, 99 Mass. 591, the fact that they have been permitted to stand for more than twenty years, raises the presumption that they were planted under lawful authority.

While the decree of the court enjoining the city from destroying the trees will be affirmed, it will have to be modified. The injunction is perpetual. Conditions may so' change, that in time public interest may require that the sidewalk should be much wider than six feet; should this property by the growth of the city become a business part, then a sidewalk might be required of twelve feet in width. In such case the trees would be an obstruction to travel, and the city would have a right to remove them when they became so. This time may never come; yet we are not disposed to interfere with the lawful exercise of power on the part of the city, should the occasion ever arrive. The decree will therefore be modified so that the injunction shall remain in force so long as there is no public necessity for a sidewalk along lot 329, in excess of the width of six feet. With this modification the decree will be affirmed. .