Forest Pres. Dist. of Cook Cnty. v. Chilvers

• Decision Date: 18 June 1931
• Docket Number: No. 20518.,20518.
• Citation: 344 Ill. 573,176 N.E. 720
• Parties: FOREST PRESERVE DIST. OF COOK COUNTY v. CHILVERS et al.
• Court: Illinois Supreme Court

344 Ill. 573

176 N.E. 720

FOREST PRESERVE DIST. OF COOK COUNTY

v.CHILVERS et al.

No. 20518.

Supreme Court of Illinois.

June 18, 1931.

Commissioner's Opinion.

Condemnation proceeding by the Forest Preserve District of Cook County against Charles R. Chilvers and others. From the judgment, petitioner appeals.

Reversed and remanded.

Appeal from Superior Court, Cook County; E. M. Mangan, Judge.

George A. Basta, Ross C. Hall, Charles H. Wells, and Irvin Rooks, all of Chicago, for appellant.

John D. Clancy, of Chicago, for appellees.

EDMUNDS, C.

On November 26, 1928, the Forest Preserve District of Cook county filed its petition in the superior court of Cook county to acquire by condemnation, for forest preserve purposes, a tract of land containing 4.6 acres lying along the west bank of the Des Plaines river and immediately south of Forest avenue, in the village of Riverside. Appellees, the owners of the land, filed original and amended traverses and moved to dismiss the suit. This motion was overruled and the cause went to trial on its merits before a jury. The verdict returned in favor of appellees was set aside and a new trial was awarded. An amended traverse was filed and appellees again moved to dismiss the suit. This motion was overruled and the cause again went to trial before a jury, which heard evidence and viewed the premises. Compensation was awarded appellees in the sum of $64,676.50. From the judgment on this verdict the Forest Preserve District has appealed.

The village of Riverside is platted on both sides of the Des Plaines river. The tract in question is zoned by village ordinance for single-residence purposes, only. There are other residences and a high school a short distance west of it. It is improved with a long one-story stucco building, which has a fiveroom apartment in the front part and is occupied by the owners, who have resided on the property for many years. The apartment has toilet facilities, hot water heat, city water, and electric lights. The rear portion of the building is used for a boat house. South of this building is a canoe shed having capacity for about 300 canoes, and west of the canoe shed are about 19 locker rooms, approximately 6 feet by 10 feet in size. There is a garage and chicken house on the property. About 100 or 125 feet south of it is the right of way of the Chicago, Burlington & Quincy Railroad Company. When the present owners moved on the property, it was very low and at times the river overflowed and covered almost all of it. For some seventeen years ashes, stone, clay, cans, automobile bodies, and débris have been dumped on it and from one-half to two-thirds of it has been filled in; the depth of such fill ranging from a few inches to 18 feet. Witnesses for appellant valued the property in amounts ranging from $20,500 to $28,725. Values placed upon it by appellees' witnesses ranged from $72,500 to $88,000.

Appellees call upon this court to hold that appellant is not entitled to acquire the land in question because it is not shown to be a natural forest or part thereof or land connecting such forests or parts thereof. Appellant argues that this point was raised before the first trial by the motion made to dismiss the suit after the filing of the special traverse, and that having taken no appeal at that time and another trial on the question of damages having intervened, appellees are precluded from now raising the issue. Whatever propriety there might be in appellant's position under other circumstances, it is sufficient to say that in any event we cannot here undertake to give consideration to appellees' request. The well-settled rule is that it is essential to a review of the ruling of a trial court adverse to the defendant on an appeal by the plaintiff that cross-error be assigned by the defendant. Village of Shumway v. Leturno, 225 Ill. 601, 80 N. E. 403. Incorporated in one of the bills of exceptions contained in the record there is an unsigned insertion entitled ‘assignment of errors,’ which purports to raise the point in question. Assignments of errors and cross-errors must be written upon and attached to the record after made up for presentation to this court (Schaeffer v. Burnett, 217 Ill. 84, 75 N. E. 440), and this court cannot consider them unless they are signed by appellees or their attorney. Wells v. Robertson, 277 Ill. 534, 115 N. E. 654. The present record discloses nothing in the way of assignment of cross-errors which meets these requirements and upon which appellees may rely to raise their contention.

Appellant contends that reversible error was committed in allowing counsel for appellees to ask John B. Harvie, on cross-examination, to state the value of another parcel of real estate which it was not sought to condemn. Harvie had been called by appellant and testified on direct examination that the value of appellees' property was $50 per front foot. On cross-examination he was asked what the Voss property, which lay to the east of appellees' tract, was ‘worth per front foot,’ and over objection was allowed to state that it was worth $150. Appellees insist that no error was here committed, invoking to sustain their position the rule stated in Forest Preserve District v. Dearlove, 337 Ill. 555, 169 N. E. 753, 759, where the court said: ‘It is the settled doctrine of this court that the damages awarded by a jury in a condemnation proceeding will not be disturbed where the evidence is conflicting, the jury views the premises, and the amount of compensation fixed is within the range of the evidence, unless there appears to have been a clear and palpable mistake or the verdict was the result of passion and prejudice.’ This statement...