City of Danville v. McAdams

• Decision Date: 30 October 1894
• Citation: 38 N.E. 632,153 Ill. 216
• Parties: CITY OF DANVILLE v. McADAMS et al.
• Court: Illinois Supreme Court

153 Ill. 216

38 N.E. 632

CITY OF DANVILLE

v.McADAMS et al.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Appeal from Vermilion county court.

Condemnation proceedings by the city of Danville against Mary McAdams and others. Defendants obtained judgment on demurrer to the petition. The city appeals. Reversed.

G. F. Rearick, City Atty. (E. R. E. Kimbrough, of counsel), for appellant.

BAKER, J.

The city of Danville adopted an ordinance for the extension of Park avenue, in said city, from its present southern terminus through to South street, to be paid for by special assessment. It thereupon filed in the county court of Vermilion county a petition praying that the just compensation to be made for the private property to be taken or damaged for the improvement or purpose specified in the ordinance should be ascertained by a jury, and it made Mary McAdams, John Schario, and John Beard, the owners of the property to be taken or damaged, parties defendant to the petition. Said Mary McAdams and John Schario demurred to the petition, and the court sustained the demurrer. The city stood by its petition, and the court dismissed it at the cost of the petitioner. The city then prosecuted this appeal.

One objection that was urged to the petition was that it did not allege that the compensation to be paid for or in respect to the property to be appropriated or damaged could not be agreed upon by the parties in interest, nor show any excuse for failing to make an attempt to agree upon compensation and damages. The objection was not well taken. In Cahill v. Village of Norwood Park, 149 Ill. 156, 36 N. E. 606, this court held that a petition for the condemnation of land for an extension of a street, under article 9 of the city and village act, will not be defective for the reason that it fails to aver that compensation for the property sought to be taken or damaged could not be agreed upon by the parties, but that the rule is otherwise in a proceeding under the eminent domain act.

Another objection that was urged to the petition was that it did not show that the cost of the improvement was estimated by a commission, and such estimate reported to the city council. Section 5 of article 9 of the city and village act provides what the petition shall contain, and it makes no requirement for such an estimate or report. There is no proper place in this particular proceeding for either. The law devolves the duty of ascertaining the compensation and damages due the property owners upon a jury, not upon a commission. Any action of a commission in the premises would be nugatory and useless. And the statute is not to be construed as requiring that to be done which would be wholly useless. In a proceeding such as this, as was held in Good willie v. City of Lake View, 137 Ill. 51, 27 N. E. 15, no estimate under section 20 of article 9 is either contemplated or required. There is no merit in this second objection to the petition.

The last objection urged to the petition was that the ordinance did not state the nature, character, locality, and description of the improvement, as required by section 19 of the act. The first section of the ordinance reads as follows: ‘Section 1. That Park avenue be opened and extended from its present southern terminus to South street in said city of Danville, Illinois,...