Cahill v. Vill. of Norwood Park

• Decision Date: 26 October 1893
• Citation: 149 Ill. 156,36 N.E. 606
• Parties: CAHILL v. VILLAGE OF NORWOOD PARK.
• Court: Illinois Supreme Court

149 Ill. 156

36 N.E. 606

CAHILL

v.VILLAGE OF NORWOOD PARK.¹

Supreme Court of Illinois.

Oct. 26, 1893.²

Appeal from circuit court, Cook county; S. P. McConnell, Judge.

Condemnation proceedings by the village of Norwood Park against Michael J. Cahill. There was judgment of condemnation, and the defendant appeals. Affirmed.

Jones & Lusk, for appellant.

David M. Ball and James L. Clark, for appellee.

WILKIN, J.

This was a proceeding by appellee against appellant in the court below to condemn real estate for the purpose of extending Hortense avenue, one of the public streets of the village. The land affected by the improvement was described in the petition as ‘Blocks 7 and 11.’ The proposed extension required a strip across these blocks, 66 feet wide, and about 100 feet long. The jury fixed the compensation, for the part of block 7 taken, at $549.60, and the damages to the remaining part, $200. For that part of block 11 taken they allowed $384, and, as damages to the remainder, $200. Appellant entered his motion for a new trial, which was denied, and judgment of condemnation entered upon the verdict. This is an appeal from the judgment. No complaint is made of the rulings of the trial court on the admission or exclusion of evidence, or the giving or refusing instructions to the jury. Four grounds of reversal are urged, and will be considered in their natural order.

First. The petition was fatally defective because it does not allege that compensation for the property sought to be taken or damaged could not be agreed upon by the parties. This point is based upon the erroneous assumption that in this proceeding the petition must conform to the requirements of section 2 of the eminent domain act, (1 Starr & C. St. p. 1042,) and that, under that section, averment of failure to agree, etc., is necessary in every case of condemnation, to give jurisdiction. This petition is filed under article 9 of the cities and village act, and the proceeding is specifically prescribed by the fourth and subsequent sections of the article. 1 Starr & C. St. p. 488. Section 5 provides what the ‘petition shall contain,’ and it requires no allegation of failure to agree as to compensation. Neither does section 2 of the chapter on eminent domain. Under the last-named section the petition must set forth, ‘by reference, his or their authority in the premises, the purpose for which said property is sought to be taken, or damaged, a description of the property, the names of all persons interested therein as owners, or otherwise, as appearing of record, if known, or if not known stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed.’ The preceding language of the section, to the effect that it ‘shall be lawful’ to file the petition when the compensation cannot be agreed upon, is not to be construed as requiring the failure to agree to be set up in the petition in every condemnation proceeding, in order to give the court jurisdiction of the case. In proceedings by railroad companies to condemn private property for right of way, such an averment is necessary, not because of the requirements of this section, but because in such cases the right to acquire title to real estate under the law of eminent domain is, by section 18, c. 114, (2 Starr & C. St. p. 1912,) conditional upon the corporation being unable to agree with the owner for the purchase of the same. Reed v. Railway Co., 126 Ill. 48, 17 N. E. 807;Lieberman v. Railroad Co., 141 Ill. 140, 30 N. E. 544. In other words, there ‘the right to take or damage property for public use’ under the eminent domain laws of the state depends upon the inability to agree with the owner for its purchase, whereas, by section 2, supra, the right to take, etc., existing, it becomes lawful to file the petition whenever the compensation, etc., cannot be agreed upon. In the latter case the fact that the parties could not agree may be brought to the attention of the court in any manner which will satisfy it of the fact, and, when the petition contains all the averments required by the statute, it must, in the absence of any showing to the contrary, be presumed that it was lawfully filed. The petition in this case contained all that is required by section 5, art. 9, supra, and is not, therefore, subject to the objection urged against it.

Second. It is objected that the jury was not sworn according to the form given in section 8 of the eminent domain act. The record recites that the jury was sworn to ascertain and report the just compensation, etc., according to the facts in the case, as they should be made to appear from the evidence adduced, ‘the argument of counsel, and the instructions from the court.’ Of course, that part of the oath referring to the argument and instructions was improper. In other respects, it was substantially in the required form. There are two reasons why this irregularity should not work a reversal: First, no objection to it was urged in the court below, (Railroad Co. v. McKinley, 64 Ill. 339;) and, second, there is nothing in the record to show that the case was argued by counsel, or that the court instructed the jury. The compensation and damages must, therefore, have been fixed upon the evidence alone.

Third. It is contended that the village failed to show a right to condemn because it did not offer in evidence the ordinance under which the proceeding was had. The jury was sworn to ascertain and report the just compensation to appellant for the property sought to be taken or damaged. It had nothing to do with the ordinance....