The Argus. (Rock Island, Ill.) 1885-1886, 1886-01-05

IHiFu-lhat the city mas lhe power,
by condemnation or otherwise, TO con-
struct sewer under and through any
railroad track, and the right of way, with
in its corporate limits, by doing no un>
necessary damage thereto, ind by restor>
ing the track right ofway on land to its
former state, or in sufficient manner not
to impair its usefulness. (See art s, sec.
62, paragraph SO, CHI "a, T. s. IA
F0mM-That the city has the power
to construct and keep in repair sewers
within its limts-this power is expressly
given it by the Incorporation law by art.
5, sec. GO. p. 80, r. s. "A, if not, by inns
plication, by other provisions. Whether
the city will exercise this power and the
time and manner of its exercise are ques-
tons solely for the council to determine;
but having once undertaken TO construct,
it is incumbent upon the city to go on
with the work or at least leave it in such
a condition as that private property shall
not be damaged thereby, and the courts
will hold the city liable where the proper
tv of private persons is flooded. either
directly or by water being set back, when
this is caused by, or is the result of the
negligent execution of the plan adopted
by the council, or the work, or results
from acts of omission or commission, or
of the negligent failure to keep the same
in repairs and free from obstruction.
FJM-By the terms of the contract
above referred to, the Lumber company
grants, to the city, the right TO construct
a sewer through the lands described there
in; together with the right to the city to
enter from time to time, as occasion may
require, to repair and maintain the same;
| it fixes the general course or direction
and the character of the sewer and the
place it shall empty or discharge, which
is at point east of the Chicago,
| Rock Island & Pacific Railway
companys bridge abulment; it also con
taius a provision that the lumber Gem
pany may cover the sewer at all times
using due diligence, to prevent obstrnc-
tions of the same from tue accumulation
| of any kind of refuse matter from theil
mill This contract does not, by its terms
or BY implication, impose any liability upon
! the lumber company of any kind or ma
| ture whatever, except TO use due dill
| gence to prevent distractions OF the saTle
| (the sewer from the accumulation oil
any kind of refuse matter from their mill
1t does not impose upon The lumber com
pany any obligation to build or maintain
any part of this sewer. or TO do anything
towards the same. 1t is simply II grant
to the city of the right TO enter upon these
lands and construct and maintain the sew
er. Nothing less, nothing more. II the watel
from the Twenty seventh street sewer rar
| freely over the lands north of the railroad
track to the river and after the humber
company acquired those lands it filled il
and the ground damned up the water ST
as to cause it to flow back and damage
adjoining private property, and this Wa.
done with knowledge, express or implied
on the part of The city. am of the opin'
ion that then the lumber company or thu
city would be held liable by the courts fol
the damage so sustained.
Whether in the event of the city beine
compelled to pay damages 20 owners o
private property, for an injury caused BY
\ throwing the water back thereon, BY rea'
son of the filling in of this ground bv thu
lumber company, it can recover owe
against the company, is question oi
considerable difficulty to my Haind; and
am now inclined to the opinion that by {
fair and reasonable construction of thi
contract, the CITY undertook to build thi!
sewer in consideration of the privilege:
granted to it by the company, and if i
has failed so to do, it cannot take ad
vantage of its own neglect and recove
over against the company, as no time i
fixed by the contract in which this sewer i
to be built by the city. The law would be
that it was to be done within REASONABLE,
time; and what is reasonable time I'm
der the circumstances, is perhaps,
question of law and fact combined; ant
if the city has not or does not commend
and complete the same, within such rea
sonable time, | should think the lumbe
company would have the legal right t.
withdraw their grant, by returning o
offering to return, the consideration pal
therefor, if anything.
| Sigth-1f it be true that any portion 0
the Twenty Seventh street sewer is 10
Gated upon lands owned by Bale
Davenport, then in the absence of an
agreement to the contrary, he woul
have the legal right to recover the sam
by law in suit of ejectment or othe
proper remedy; and the city would b
liable to him for the value of the use an
occupation to be shown by proper proc
unless the city should exercise its right {
, eminent domain and condemn 1t and pa
, for it. Respectfully,
P. O'MARA.
i GENTLEMEN:-In response to vol
further question, viz; If the city cleo
4 to build the sewer, according to the cor
tract between it and the Lumber comps
ny, can the city, when the sewer reacht
. the embankment of the c., r. l. &
railway company. compel the said raj
wav company, at the expense of the sal
railway company, to extend the same Ill
u der its right of way and keep the same
: repair reply as follows:
e The only foundation for the claim th
u the city would have to require the raj
= way company SO to do, that l am IL
: formed of, is that by reason of the pr
J. visions of the ordinance passed Aug.
e 1853, [Rev. Ord, P. 261
!, This ordinance was passed to give ii
II said railway certain rights in both Il
g streets and alleys and public ground
e both within and north of their (the
T. depot grounds, located in that Fart of {
II city known as Spencer C Cases and Ba
u ley g. Boyle's additions. This land beil
IL west of the right of way through viii
the proposed sewer is to be construct
and at that time formed no part of Z
city of Rock Island. The language
that part of the ordinance that is mater
le to the present inquiry is. .'said railro
company shall. at all times, on reason
'e BILE notice by the city authority, at tn
X OWE expense, make or cause to be ma
~ through their depot grounds, or sire,
and alleys thereof, all necessary drai
al which may be required of them, and
et necessary for draining the east part
VI said city of Rock Island and keep {