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Sanitary District of Chicago. The proposed system is so constructed that it can readily and with little expense to the village be connected with the drains of the Sanitary District of Chicago when they are extended to Wilmette. The most that can be said in support of the appellants' contention is, that the outlet into Lake Michigan from the new system of sewers is about twenty-four hundred feet nearer the intake of the water supply of the city of Evanston than the outlet of the present system of sewers. In 1892, and again in 1902, the village of Wilmette made a contract with the city of Evanston to furnish it its water supply. In a modification of those contracts, which was obtained about the time the improvement ordinance involved was passed, the city of Evanston consented that the proposed sewerage system of Wilmette might enter the lake twenty-four hundred feet nearer the intake of its water supply, if the sewers of its new system were so arranged that only surface water would flow into the lake at that point until after a certain quantity of water was flowing through the said sewers, and that the sewage of the village proper should be poured into the lake at the outlet of the old system of sewers, and the contention is made that the new system of sewers is to be so constructed that the probability is a portion of the sewage of the village will enter the lake at the new outlet, which would cause the contamination of the water supply of the city of Evanston and the village of Wilmette and amount to a breach of said contracts. The city of Evanston is not here complaining, and the evidence clearly shows that under no circumstances, after the new system is completed, will more than an infinitesimal portion of the sewage of the village of Wilmette be discharged into the lake at the new outlet, and that the spillways to be constructed are so arranged that for an additional expense of about $100 they can be made to fully comply with the contracts existing between the village of Wilmette and the city of Evanston, and it will be time enough to adjust the contract relations between said city and village when those questions arise, and we are of the opinion they cannot properly be determined in this proceeding
In Walker v. City of Aurora, 140 Ill. 402, which was a special assessment case, it was objected that the waters of Fox river, below Aurora, into which the sewer sought to be constructed would empty, would be contaminated by the sewage. The court said (p. 409): “It is suggested that the sewerage will be a nuisance to the cities and towns on Fox river below Aurora. If this should turn out to be so, and if the discharge of the sewerage into the river should prove to be 'to the injury or prejudice of others, and if appellee should fail to provide suitable appliances for the purification of the sewerage matter, then there will be ample opportunity to afford relief, upon complaint being made, either on behalf of the public or of those injured or prejudiced.”
Eighth--A number of questions have been raised upon this record as to the conduct of the trial before the jury, and the rulings of the trial court upon the admission of evidence and the instructions given by that court to the jury have been criticised. But two issues were before the jury, namely, was the appellants' property assessed more than it was benefited by the improvement or more than its proportionate share of the cost of the improvement? The court had held that the improvement was a proper one to be made, and all questions other than those suggested were entirely foreign to the questions being tried before the jury, and all evidence or instructions which sought to bring before the jury, and have them pass upon, the question whether the improvement should be made were properly excluded or refused. We think the court did not commit reversible error in its rulings upon the evidence or in giving or refusing instructions.
A number of other questions have been raised. We think, however, they are without merit.
We have examined this record with care, and although it is a long one, we have found it unusually free from error. The judgment of the county court will be affirmed.
THOMAS D. Wilcoxon
MITCHELL H. WILCOXON et al.
Opinion filed October 23, 1907–Rehearing denied Dec. 4, 1907.
1. LACHES—equitable doctrine against the enforcement of stale claims is not a rule of pleading. There is no difference, in the application of the equitable doctrine of laches, whether it is interposed against relief sought by an original bill or by a cross-bill.
2. SAME-unexcused absence of reasonable diligence is fatal to recovery. Nothing can call a court of equity into activity but conscience, good faith and reasonable diligence in applying for relief, and the absence of any one of such elements is fatal to a recovery.
3. Same—a cross-bill must show reasonable diligence. A crossbill to obtain affirmative relief must show a state of facts upon which a court of equity could be called upon to act if the same grounds were presented in an original bill, and if the cross-bill shows an unexcused delay for nearly fifteen years in applying for relief, after knowledge of the facts, the relief must be denied.
HAND, C. J., and CARTWRIGHT and Scott, JJ., dissenting.
APPEAL from the Circuit Court of Stephenson county; the Hon. O. E. HEARD, Judge, presiding.
In 1879 Thompson Wilcoxon was the owner of the Wilcoxon Opera House block and the Post-office block, in the city of Freeport. These properties were of the approximate value of $50,000 and were encumbered for $25,000. On the 19th of August, 1879, he, with his .wife, Cyinde Wilcoxon, entered into articles of agreement with their children, Thomas Wilcoxon, Mitchell H. Wilcoxon, Mary D. Proctor and Martha E. Lemon. The agreement was in the nature of a lease, by which Thompson Wilcoxon and his wife leased the said real estate to their children from that date until June 1, 1884, a period of about five years. There was a covenant in the lease on the part of the lessees by which they agreed “to assume all of the indebtedness now existing against the estate of said parties of the first part, together with such additional indebtedness as shall be incurred in the erection and completion of said Post-office block, to the extent of all the revenues arising from the rental of said buildings (except as herein provided) during the term of said lease," and it was provided in the lease that after retaining out of the income of said properties a sum not exceeding $300 for each of the lessees per year, the lessees would apply the remainder of said income on payment of the principal sum of the indebtedness against the property, less taxes, interest, insurance and expenses. There were other covenants and agreements in the lease which it is not necessary to notice here. On the same date appellant and appellees entered into an agreement by which they formed a partnership for the purpose of managing the property leased from their father. By the terms of this agreement appellant was constituted trustee and agent for the partnership, and was authorized to lease the premises, pay all the expenses mentioned in the lease, together with the sum of $300 each to the partners, and to pay out the funds remaining in his hands upon the principal of the indebtedness on said property. He was also required to keep accurate accounts of his acts and doings and to make reports of the same to the other parties to the lease. For his services as such manager he was to receive the sum of $200 per year in excess of the $300 above mentioned. The partnership agreement provided that it should remain in full force for the period of five years from its date, unless otherwise ordered by the parties. Afterwards, on the 26th day of August, 1880, a supplemental agreement was entered into between the parties to the partnership agreement, which provided that in view of the fact that their father, Thompson Wilcoxon, had ceased to receive certain income which he enjoyed at the time the lease was made, he should be paid $100 per month out of the general fund arising from the rental of the properties held by said parties under the lease above mentioned, and in case of the death of Thompson Wilcoxon the said sum was to be paid monthly to his widow. The expressed purpose of the lease and the partnership agreement was to reduce and pay off the indebtedness of Thompson Wilcoxon as rapidly as possible, and not to secure to the lessees an income for their immediate use except $300 per year to each of them, since they were equally interested, as prospective heirs, in relieving their father's estate of its burden of indebtedness. Appellant immediately entered upon the discharge of his duties as trustee under the partnership agreement.
In the year 1852 Thompson Wilcoxon made his will and devised all his property, without qualification, to his wife. In the same year Abigail M. Wilcoxon, aunt of appellant and appellees, who was the owner of 480 acres of land in Stephenson county, with other property, made her will devising her estate to Thompson Wilcoxon. On June 19, 1880, Abigail Wilcoxon added a codicil to her will, devising to Thomas Wilcoxon a life estate in her estate with remainder in fee to his sons. On January 3, 1881, Thompson
Vilcoxon added a codicil to his will, to the effect that in case he should not pre-decease his wife his property should be divided equally among his children, with the further condition that if Abigail M. Wilcoxon should change her will, making any of his children or their heirs beneficiaries instead of Thompson Wilcoxon, then an amount equal to that received by such child from the estate of Abigail Wilcoxon should be deducted from the child's interest in the estate of the testator, and if the amount so received by such child from Abigail M. Wilcoxon's estate should equal or