Chicago & N.W. Ry. Co. v. City of Chicago

• Decision Date: 19 June 1893
• Citation: 148 Ill. 141,35 N.E. 881
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. CITY OF CHICAGO.

148 Ill. 141

35 N.E. 881

CHICAGO & N. W. RY. CO.

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from circuit court, Cook county; Francis Adams, Judge.

Condemnation proceedings by the city of Chicago against the Chicago & Northwestern Railway Company. There was judgment of condemnation. Defendant appeals. Affirmed.W. C. Goudy and A. W. Pulver, (Lloyd W. Bowers, of counsel,) for appellant.

John S. Miller and Charles C. Gilbert, for appellee.

The other facts fully appear in the following statement by MAGRUDER, J.:

This is a proceeding begun by the city of Chicago in the circuit court of Cook county to open Hoyne avenue, in that city, across the right of way of the appellant company. The cause was tried by agreement before the court without a jury. Judgment was rendered on July 22, 1891, finding the just compensation to be paid by the city to be one dollar, and ‘adjudging that said owner shall accept from said city * * * such sum as is so awarded, * * * and that, upon payment into this court, by the said city, of the said sum of money for the use of the owner, * * * or upon proof made to or before the court that the said sum of money has been paid to the owner, * * * the city * * * shall have the right at any time thereafter to take possession of and damage the property in respect to which such compensation shall have been paid or deposited.’ The contents of the original and cross petitions, and the terms and amount of the judgment, and all other facts preceding the rendition of said judgment, are the same as in Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109, except that in the latter case the street opened across the right of way was West Taylor street, and not Hoyne avenue. The judgment so entered in the present case on July 22, 1891, recites, al the close of it, that the railroad company excepted thereto, and prayed an appeal therefrom to this court, which was granted upon the filing of an appeal bond and a bill of exceptions in 40 days from said date. The record shows that on August 25, 1891, an order was entered, by stipulation of the parties, extending the time for filing said bond and bill until September 17, 1891. The record further shows that on September 3, 1891, there was filed in this cause a stipulation, signed by the attorney for the city and the attorney for the railroad company, which is as follows: ‘Whereas, a judgment has been rendered in the circuit court of Cook county in the case of the City of Chicago against the Chicago and Northwestern Railway Company et al. for opening Taylor street across the property and right of way of the defendant, from which judgment the defendant has appealed to the supreme court of the state of Illinois; and whereas, a like judgment has been rendered in the above-entitled case for opening a street across the property and right of way of the defendant herein; and whereas, the same question exists in the above-entitled case as in the case for the opening of Taylor street: Now, therefore, it is stipulated and agreed that the defendant need not prosecute an appeal from the judgment in the above-entitled suit, but that the proceedings therein shall be stayed until the decision and final judgment in the said Taylor Street Case shall be entered by the supreme court, and the judgment in the above-entitled suit shall abide by said decision of the supreme court; and, if reversed, then the judgment in this case shall be set aside upon motion in the circuit court; if affirmed, then the city may proceed with the execution of said judgment the same as if it had been affirmed by the supreme court.’ This court affirmed the judgment in the West Taylor Street Case, the opinion therein having been filed on January 18, 1892. Chicago & N. W. Ry. Co. v. City of Chicago, supra. Thereafter, on May 14, 1892, the city came into the said circuit court by its attorney, and paid into court the sum of one dollar, the amount of compensation theretofore found for the taking and damaging of the defendant's property, and moved for an order of possession, which motion was taken under advisement. The company objected to the motion ‘for an order allowing the city of Chicago to take possession of the premises,’ and filed two written objections thereto, presenting an affidavit in support of said objections, and offering to prove that the company was the owner in fee of said premises. The court, upon objection by the city, refused to receive the offered proof, to which ruling exception was taken. Thereafter, on May 21, 1892, the court entered an order wherein, after reciting that the city and the company came by their respective attorneys, and that the proceedings came on to be heard upon the motion of petitioner for an order that the city should have the right, at any time thereafter, to take possession of and damage the property in respect to which the compensation had been theretofore therein awarded, etc., it was ordered as follows: ‘And it appearing to the court that the sum of money, to wit, $1, heretofore found and adjudged by the court to be just compensation for the taking and damaging of the said property of the defendant herein by said improvement, has been paid into this court as directed by this court, and the court, being fully advised in the premises, doth order and adjudge that the city of Chicago, petitioner herein, have the right to take the possession of and damage the said lot, piece, or parcel of land or property in respect to which compensation has been so deposited * * * for the purpose of said improvement, and is hereby authorized and may, at any time after the entry of this order, take possession thereof and damage the same for the purpose of said improvement.’ And thereupon the defendant prayed an appeal, which was allowed on condition that the defendant file a bond in the penal sum of $500, with William C. Goudy as surety, and a bill of exceptions within thirty days. The bill of exceptions contains the following statement: ‘Mr. Gilbert, assistant counsel for the corporation the city of Chicago, then in open court handed to the clerk some bank bills, when Mr. Goudy, the counsel for the defendant, inquired what amount he had handed the clerk, and Mr. Gilbert replied, ‘Nine dollars,-being one dollar for each of nine cases in which such an order was asked.’' The bill of exceptions recites that said motion of petitioner was allowed, and an order for possession was entered, ‘to which decision of the court in allowing the motion and entering the order the defendant then and there excepted.’ The present appeal is prosecuted from the order so as aforesaid entered on May 21, 1892.

MAGRUDER, J., (after stating the facts.)

The appellee makes a motion to dismiss the present appeal upon the alleged ground that the order for possession entered by the court below is not an appealable order. Hence, the first question to be considered is whether the case is properly here by appeal from said order. We are relieved from the necessity of considering the effect of the stipulation between the attorneys of the parties upon the right of the appellant to prosecute this appeal, by the following admission made by the counsel for the city in their brief: ‘We do not contend that this stipulation prevents the railway company from alleging any errors in the proceedings subsequent to the entry of the condemnation judgment, provided otherwise this appeal lies, and it is competent to bring such proceedings before this court for review; so that if the order here appealed from, namely, the order for possession, was appealable, then we do not contend that the stipulation cuts off such appeal.’ Inasmuch, however, as the judgment in the Taylor Street Case, reported as Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109, was affirmed, the judgment entered in the case at bar on July 22, 1891, which fixed the amount of compensation, is to be treated as also affirmed by this court under the terms of the stipulation. The questions here presented are therefore limited to the proceedings subsequent to said judgment. This proceeding is under the provisions, in regard to eminent domain, of article 9 of the city and village act. Section 14 of that article provides that ‘any final judgment or judgments rendered by said court upon any finding or findings of any jury or juries shall be a lawful and sufficient condemnation of the land or property to be taken upon the payment of the amount of such finding as hereinafter provided. It shall be final and conclusive as to the damages caused by such improvement, unless such judgment or judgments shall be appealed from,’ etc. 1 Starr & C. Ann. St. p. 491. It is manifest from this language that the judgment rendered upon the verdict of the jury, or upon the finding of the judge when the jury is waived, is not a lawful and sufficient condemnation of the property until the amount of the verdict or finding is paid. Such judgment merely fixes the amount of damages caused by the improvement, or the amount of compensation to be paid to the owner for the taking of his property. Of itself, it does not pass the title of the property sought to be condemned to the petitioner seeking to condemn it. It is only a conditional judgment. Its completeness, as working a condemnation of the land, depends upon the future payment of the award by the petitioner. The latter may not choose to make such payment. The city filing the petition is under no legal obligation to pay any money unless it chooses to do so, and it has the right to abandon the improvement. Railway Co. v. Teters, 68 Ill. 144;Glennon v. Railway Co., 79 Ill. 501;City of Chicago v. Barbian, 80 Ill. 482;City of Bloomington v. Miller, 84 Ill. 621. Until payment of the award is made by the city, its right to take possession of the property does not accrue. Compensation must be paid before the property is taken. ‘The rights of the parties are mutual. Whenever...