Chicago & N.W. Ry. Co. v. Miller

• Decision Date: 23 April 1908
• Citation: 84 N.E. 683,233 Ill. 508
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. et al. v. MILLER et al.

233 Ill. 508

84 N.E. 683

CHICAGO & N. W. RY. CO. et al.

v.MILLER et al.

Supreme Court of Illinois.

April 23, 1908.

Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Condemnation proceedings by the Chicago & Northwestern Railway Company, in which Phebe F. Clark filed a cross-petition claiming to own the property on fee, and denying the interests of Averill H. Miller and Ernest F. Scheldein, who were occupying the premises under alleged leases. From an order requiring all parties to the proceeding who claimed an interest in the premises to set up their rights prior to the calling of a jury to fix the compensation and a judgment determining their rights, Miller and Scheldein appeal. Reversed and remanded.Harris F. Williams (Eldon M. Votaw, of counsel), for appellants.

Nathan G. Moore, Frank H. Scott, William S. Kies, and William B. Hale (Lloyd W. Bowers, of counsel), for appellee Chicago & Northwestern Railway Company.

Moses, Rosenthal & Kennedy (Joseph W. Moses, of counsel), for appellee Phebe F. Clark.

The Chicago & Northwestern Railway Company filed a petition in the superior court of Cook county to condemn certain real estate situated in the city of Chicago for railway purposes. Included in the property sought to be condemned was sublot 1 in the canal trustees' subdivision of lot 9, in block 45, in the original town of Chicago, known as Nos. 31 and 33 Sough Canal street, upon which was located a four-story building. The fee title to said Canal street property was averred to be in Phebe F. Clark, and Mrs. Clark and numerous persons who were in possession of portions of said building as tenants were made parties defendant to said petition. Prior to the calling of a jury to fix the compensation and damages the superior court entered an order requiring all persons who were parties to said proceeding who claimed an interest in said premises to set up, by cross-petition or otherwise, their respective rights and interests in and to said premises. Mrs. Clark filed a cross-petition, in which she averred she was the owner of said premises in fee; that the appellant Averill H. Miller was in possession of the basement and first story of the building located upon said premises, claiming to hold the same under and by virtue of a lease executed to him in her name by Robert White and Roy B. Tabor for a term commencing April 1, 1906, and ending April 30, 1911; that the appellee Ernest F. Scheldein was in possession of the front half of the third story of the building upon said premises, claiming to hold the same under and by virtue of a lease executed to him in her name by Robert White and Roy B. Tabor for a term commencing May 1, 1906, and ending April 30, 1909; that the lease to Miller and the lease to Scheldein were executed by White & Tabor in her name, without authority from her in writing; and that she had never ratified the execution of said leases, or either of them, in writing, and that they were within the statute of frauds, and void. Miller and Scheldein severally answered the petition of the railway company and the cross-petition of Mrs. Clark, and a hearing was had before the court upon the cross-petition and the answers of Miller and Scheldein thereto.

It appeared from the evidence that Mrs. Clark was the owner in fee of said premises; that Miller was in possession of the basement and first story of said premises, wherein he was carrying on a restaurant business, under and by virtue of a lease in writing executed to him by White & Tabor, in the name of Mrs. Clark, for a term commencing April 1, 1906, and ending April 30, 1911; that he had expended in improving said premises to adapt the same to his business something like $4,000, and that he had paid the rent on said premises, in accordance with the terms of said lease, monthly to said...