City of Chicago v. McCartney

• Decision Date: 05 October 1905
• Citation: 216 Ill. 377,75 N.E. 117
• Parties: CITY OF CHICAGO v. McCARTNEY.
• Court: Illinois Supreme Court

216 Ill. 377

75 N.E. 117

CITY OF CHICAGO

v.McCARTNEY.

Supreme Court of Illinois.

June 23, 1905.

Rehearing denied October 5, 1905.

Error to Circuit Court, Cook County; O. P. Thompson, Judge.

Proceedings by the city of Chicago to condemn land for the widening of a street. An assessment for benefits was levied on the property of Henry S. McCartney, and from a judgment setting the same aside on his objections the city brings error. Reversed.

Magruder, J., dissenting.

Robert Redfield and William M. Pindell (Edgar Bronson Tolman, Corp. Counsel, of counsel), for plaintiff in error.

Enoch J. Price, for defendant in error.

CARTWRIGHT, C. J.

Plaintiff in error filed a petition in the circuit court of Cook county to condemn 37 feet off the east side of lands owned by the defendant in error and other persons for widening South Park avenue, under the provision of article 9 of the city and village act providing for making local improvements by special assessment. On a trial by jury there was a verdict awarding $7,474.88 as compensation for the 37 feet taken from lots owned by defendant in error, and finding that there was no damage to the remainder. Plaintiff in error afterward filed a supplemental petition for a special assessment upon property benefited by the improvement to pay the total compensation awarded to all the owners, with the costs and expenses. Commissioners were appointed by the court to make such assessment, and an assessment roll was returned into court, amounting to $21,233.81. Lots 1 to 8, inclusive, in Edgar M. Snow & Co.'s subdivision, platted subsequent to the condemnation, owned by defendant in error, were separately assessed in amounts aggregating $9,017.64. Defendant in error filed numerous objections to the assessment, one of which was that the benefits had already been paid in the condemnation proceedings; and after a trial by jury, in which the issues were found for the plaintiff in error, a new trial was granted, and the defendant in error, by leave of court, filed an amended objection as follows: ‘The former judgment of condemnation, to which this proceeding is limited, finding the value of the portions of lots 15 and 16 in said block 2, Yerby's subdivision, aforesaid, and also finding no damages to the parts of said premises not taken, necessarily included a consideration of the question of special benefits to the part not taken; secondly, evidence was in fact taken as to such benefits, and considered by the jury as an offset to damages to the parts not taken, and the objector pleads said judgment in bar to this proceeding, and shows that the same is res judicata as respects the subject-matter of this proceeding.’ The cause was then heard by the court without a jury, and a judgment was entered in favor of the defendant in error, refusing confirmation of the assessment, and dismissing the petition, as to his lots. The judgment so entered contained the following finding: ‘In the original condemnation proceedings in this case the benefits to the property in question, hereinabove mentioned, were, under the issues there presented, involved, considered, and determined, and, having been litigated in that case, cannot again be the subject of litigation. The city is estopped by the former verdict and judgment, and the court, for the reasons aforesaid, finds the issues for the said objector.’ The writ of error in this case was sued out to review that judgment.

There is no bill of exceptions in the record, and for that reason the finding of fact that in the original condemnation proceedings the benefits to the property in question were presented, involved, considered, and determined cannot be questioned on account of any insufficiency of the evidence to sustain such finding. The court will not inquire into the sufficiency of the evidence to support a finding unless there is an exception preserved in a bill of exceptions. The office of a bill of exceptions is to peserve in the record such matters as occur during a trial which would not otherwise become a part of the record, and as to such matters an alleged erroneous ruling or finding must be excepted to, and the exception preserved in a bill of exceptions. Martin v. Foulke, 114 Ill. 206, 29 N. E. 683;Firemen's Ins. Co. v. Peck, 126 Ill. 493, 18 N. E. 752;Cochran v. Village of Park Ridge, 138 Ill. 295, 27 N. E. 939. But no bill of exceptions is necessary where the error appears in the record and judgment of the court. Kitchell v. Burgwin, 21 Ill. 40;Van Dusen v. Pomeroy, 24 Ill. 289;Wiggins Ferry Co. v. People, 101 Ill. 446;McChesney v. City of Chicago, 151 Ill. 307, 37 N. E. 872. The error alleged in this case appears in the record, which shows that there was an original condemnation proceeding, in which compensation was awarded for a part of the lots taken to widen the street, and the jury found that there were no damages to the remainder. The objection of defendant in error was based on that verdict, and alleged that the judgment was res judicata in this proceeding. If, as a matter of law, the amount of special benefits accruing to the property of defendant in error could have been considered and determined in the condemnation proceeding by a verdict finding that there was no damage to such property, so that the judgment entered on such verdict would become res judicata of the question raised in this case, the finding of the court that such special benefits were presented, considered, and determined must be regarded as conclusive. On the other hand, if no such question could have been determined by such verdict, and no judgment could have been or was entered assessing the benefits to the property, then, as a matter of law, this judgment is wrong.

The issues in the condemnation case were different from the issues in this case. The petition for condemnation prayed that the just compensation to be paid for private property to be taken for the improvement should be ascertained by a jury. The jury were required by law to ascertain such just compensation to be paid for the property taken, and the damages, if any, to the residue, but not to assess benefits, however great such benefits might be in excess of any damages sustained. The benefits to the property not taken could not be set off against the compensation to be paid for the land taken, as has been decided in numerous cases. The jury awarded compensation for the 37 feet taken for widening the street, and were bound to allow the full value, without deducting benefits. When the jury came to consider the question whether the portion of the property not taken was damaged, they were limited to that single question. On that question they were authorized to consider any special benefits for the purpose of reducing or balancing damages; but that was only for the purpose of determining whether the remaining property was damaged, and the amount of such damage. The consideration of special benefits to property claimed to be damaged, but not taken, goes only to the extent of offsetting or balancing damages. The measure of damages is the reduction in value of the residue of the tract by reason of the improvement, and, if the residue will be worth less, the difference is to be allowed as damages. But if there are special benefits rendering it far more valuable, they cannot be charged to the owner, or recovered from him. As was said in Page v. Chicago, Milwaukee & St. Paul Railway Co., 70 Ill. 324: ‘This is not deducting benefits or advantages from damages, but it is ascertaining whether there be damages or not.’ If it is found that the special benefits accruing equal the damages, the owner cannot recover anything, for the simple reason that there are no damages. If the benefits are less than the damages, the owner will be entitled to recover the excess as his just compensation, which is only saying that, upon considering the value of the property before and after the improvement, there is a certain amount of damage. Harwood v. City of Bloomington, 124 Ill. 48, 16 N. E. 91;Goodwillie v. City of Lake View, 137 Ill. 51, 27 N. E. 15;Leopold v. City of Chicago, 150 Ill. 568, 37 N. E. 892. If the jury in a condemnation proceeding award damages for property not taken, the judgment is conclusive against a subsequent proceeding to assess it for benefits, because the judgment is conclusive that there are damages, and not benefits; but, where a jury simply find that there are no damages, the verdict and judgment are not, and cannot be, conclusive that there are no benefits. The fact that property is greatly benefited and doubled in value by an improvement is not inconsistent with a verdict that it is not damaged, but perfectly consistent with it. It would seem to be an absurdity to say that the finding of a jury that the property of defendant in error was not damaged was also a finding that it was not benefited-a question which the jury could not legally consider.

The purpose and effect of this proceeding are different. The commissioners were required to assess against the lots of defendant in error the benefits that would accrue from the improvement. They were not authorized to award damages for depreciation of the lots resulting from the taking of a part of them, the fact that there were no damages having been determined in the condemnation proceeding. Leopold v. City of Chicago, supra. As to the case just cited, it may be said that the legal principles stated in the opinion are correct and in accordance with previous decisions, although the conclusion drawn from them is perhaps a non sequitur, which should not be followed. In the assessment roll the property of the defendant in error was assessed $9,017.64 for benefits accruing from the improvement. Assuming that the property is benefited to the amount assessed, his reply is that those benefits have already been considered and allowed by the verdict of the jury that his property was not damaged. Manifestly the verdict and judgment in the condemnation...