Central Illinois Elec. & Gas Co. v. Scully

• Decision Date: 24 September 1959
• Docket Number: No. 35237,35237
• Citation: 17 Ill.2d 348,161 N.E.2d 304
• Parties: CENTRAL ILLINOIS ELECTRIC AND GAS COMPANY, Appellee, v. T. A. SCULLY et al., Appellants.
• Court: Illinois Supreme Court

Page 304

161 N.E.2d 304

17 Ill.2d 348

CENTRAL ILLINOIS ELECTRIC AND GAS COMPANY, Appellee, v. T. A. SCULLY et al., Appellants.

No. 35237.

Supreme Court of Illinois.

Sept. 24, 1959.

Miller & Miller, Lincoln, and Giffin, Winning, Lindner & Newkirk, Springfield, for appellants.

Harris & Harris, Lincoln, for appellee.

HERSHEY, Justice.

Appellants bring their appeal from a judgment of the circuit court of Logan County fixing the compensation for land and easement taken by appellee by eminent domain proceedings. Appellee, Central Illinois Electric and Gas Company, a public utility, was authorized by an order and certificate of convenience and necessity of the Illinois Commerce Commission entered June 3, 1958, to construct approximately 12.1 miles of electric transmission line in Logan County. Thereafter, appellee filed its petition, pursuant to section 59 of the Public Utilities Act (Ill.Rev.Stat.1957, chap. 111 2/3, par. 63) to condemn an easement and right to use an identified strip across the lands owned by appellant T. A. Scully, for the construction, maintenance, repair, replacement, use and operation of an electric transmission line consisting of three phase wires and two overhead ground wires supported by two-pole H-frame type structures with one crossarm and necessary bracing, and to fix a just compensation therefor.

Appellant T. A. Scully owns two separate tracts of real estate situated respectively in Sheridan and West Lincoln townships of Logan County, and through which appellee sought its easement. Attached to the petition were drawing marked exhibits A-1 and A-2 depicting the proposed easement across the Scully tracts, in accordance with the certificate of public convenience and necessity. The proposed easement is 50 feet in width, and extends for 2 1/2 miles across the Scully tract in Sheridan township and originally for a short distance across the corner of the Scully tract in West Lincoln.

On October 15, 1958, appellee filed an amendment to its original petition, pursuant to leave of court, stating a new description for the route of the easement for the transmission line. The route remained the same as originally described over the tract of Scully land in Sheridan Township, but the amendment provided for a new route, 1722 feet in length diagonally across the center of the Scully tract in West Lincoln township, and involved an additional two-pole structure on that tract. On October 21, 1958, Scully filed a motion to dismiss the petition as amended, on the ground that petitioner had no power and authority to condemn for any easement except that set forth in the original petition, in accordance with the certificate of the Illinois Commerce Commission issued June 3, 1958. On October 22, 1958, appellee filed a second amended petition, to which was attached a copy of a supplemental order and certificate of convenience and necessity issued by the Illinois Commerce Commission on October 22, 1958, revising the description of the route of the transmission line in West Lincoln township in accordance with the new route. On October 24, 1958, Scully filed a supplemental motion to dismiss the petition as amended, alleging that it appeared that appellee was not authorized to condemn the new route on October 15, 1958, and the amended petition then filed was void and of no force and effect, and that the supplemental order and certificate could not restore jurisdiction to the court. Scully's motion was denied, and he then filed a cross petition for damages to land not taken. The cause was then tried before a jury, and a judgment was entered on the verdict fixing the compensation at $.66 for land taken, $1,650 for the easement, and allowing no damages to land not taken or for the tenants of the lands. Scully filed a motion for new trial and in arrest of judgment, and the additional appellants, the tenants on the Scully lands, filed joint and several motions for new trial and in arrest of judgment, restating the grounds urged in Scully's motion to dismiss. These motions were overruled. A freehold interest in real estate being necessarily involved, appellants appeal directly to this court.

Appellants vigorously assert that the trial court erred in denying the motion to dismiss the petition as amended, and in denying the post-trial motion in arrest of judgment. These motions alleged that the entire condemnation petition was a single proceeding, that the Illinois Commerce Commission had not authorized the entire route which appellee sought to condemn by its first amended petition; that the petition as first amended was void and of no force and effect, and that later authorization obtained from the commission could not authorize the appellee to maintain this condemnation proceeding. We have found that it requires the concurrent action of the petitioning public utility and the Commerce Commission to vest the power of eminent domain and the selection of the route for a power transmission line in the corporate public utility. The necessity for the improvement requiring condemnation and the manner of its construction are for the consideration of the condemnor, subject to the decision of the commission as to convenience and necessity. The condemning petitioner does not have the right of eminent domain until the commission issues its certificate. Illinois Iowa Power Co. v. Rhein, 369 Ill. 584, 17 N.E.2d 582. Appellants thus contend that upon the filing of appellee's first amended petition, describing a route for which there was then no certificate of necessity and convenience, the appellee was without power to condemn the route and that lack of jurisdiction could not thereafter be cured by later securing a proper certificate.

At the time of the filing of the original petition for condemnation, the appellee had a perfected right of eminent domain. The appellee had determined the necessity for and the mode of construction of the transmission line, and the commission had issued its order and certificate, and the appellee had petitioned for condemnation. The jurisdiction of the court had been properly invoked. The first amendment to the petition set up a new route across the tract of land in West Lincoln Township, for which there was then no certificate of necessity and convenience.

Section 5 of the Eminent Domain Act (Ill.Rev.Stat.1957, chap. 47, par. 5) and section 39 of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 39) permit amendm...