Cook Cnty. v. Vander Wolf

• Decision Date: 18 September 1946
• Docket Number: No. 29532.,29532.
• Citation: 394 Ill. 521,69 N.E.2d 256
• Parties: COOK COUNTY v. VANDER WOLF et al.
• Court: Illinois Supreme Court

394 Ill. 521

69 N.E.2d 256

COOK COUNTY

v.VANDER WOLF et al.

No. 29532.

Supreme Court of Illinois.

Sept. 18, 1946.

Appeal from Circuit Court, Cook County; Thomas J. Lynch, judge.

Proceeding by the County of Cook against Henry Vander Wolf, Fred C. Rietveld and others to condemn seven tracts of land for laying out, alteration, improvement or widening of a state aid highway, in which defendant Rietveld filed a cross-petition for assessment of damages to the portion of certain lots not taken by the county and a petition for judgment for the total amount of compensation and damages awarded by a jury's verdict. From a judgment denying the cross-petition, condemning the lots ordering petitioner to pay the amount awarded with interest to the county treasurer for the benefit of the owners of and parties interested in the condemned property, and authorizing petitioner to enter thereon and use it for the purposes stated in the petition after proof of such payment, defendant Rietveld appeals.

Affirmed.

MURPHY, J., dissenting.

Lawlor & Walsh, of Chicago (Edwin D. Lawlor, of Chicago, of counsel), for appellant.

Samuel Shamberg, of Chicago (John M. Quinlan, of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Appellee, the county of Cook, filed its petition to acquire by condemnation seven separate tracts of land necessary in connection with the laying out, altering, improving or widening of a State aid highway, known as Calumet Parkway, from Paxton avenue to Volbrecht road. Property of appellant, consisting of parts of lots 6 and 7 in a certain designated subdivison, was included in the petition; and both he and his wife, Kathryn Rietveld, were made parties defendant. The petition alleged, upon information and belief, that there were other persons whose names were unknown to the petitioner, who claimed or might claim some right, title, interest or lien, in fee or some lesser estate, in the real estate sought to be condemned, and such persons were made defendants by the name and description of ‘unknown owners.’ Appellant apeared and filed a cross petition, alleging his ownership of all of lots 6 and 7, and praying for an assessment of damages to that portion of the lots not taken and appropriated by the county. Upon a separate trial as to lots 6 and 7, a jury returned a verdict awarding to ‘the owners and parties interested therein’ the sum of $18,000 as compensation for the land taken and the further sum of $3,200 as compensation for damages to the land not taken. Afterward appellant filed his petition, claiming he was the owner in fee simple of lots 6 and 7, free and clear of any liens or encumbrances whatsoever, except general taxes for the year 1945, and asking for a judgment in his favor upon the verdict for $21,200, the total amount of the compensation for both the land taken and that damaged. The county answered this petition, setting up that there was evidence showing reciprocal easements for right of way in favor of adjoining owners across the lands of appellant, and alleging that Kathryn Rietveld, the wife of appellant, had an inchoate right of dower in the real estate of appellant and an interest in the award. The answer also alleged that ‘unknown owners' were made parties defendant and therefore appellant should be required to make strict proof of his title, and that under section 14 of the Eminent Domain Act, the county was authorized to pay the award to the county treasurer. At the hearing before the court, upon the county's motion for judgment, the petition of appellant and the answer thereto, appellant offered in evidence a Torrens certificate of title, No. 301645, issued July 11, 1934, by the Registrar of Titles of Cook county, certifying that Fred C. Rietveld, a bachelor, was the owner in fee simple of lots 6 and 7 aforesaid, subject to the rights of the abutting property owners on Thorn Creek in and to lot 6. He also testified, when called as a witness by the county, that he was married to the defendant, Kathryn Rietveld on July 29, 1942, and that they were, at the time of the hearing, living together as husband and wife.

Upon this state of the evidence, the court refused to enter a judgment in favor of appellant, and on December 17, 1945, entered a judgment of condemnation, making no finding of title or adjudication of the rights of appellant or any other person in the award, but ordering the petitioner, within 120 days, to pay to the county treasurer of Cook county, ‘for the benefit of the owner or owners of and party or parties interested in said premises' the sum of $21,200, together with interest thereon at the rate of 5 percent from November 8, 1945, the date of the jury's verdict, to the date of the deposit of said fund with the county treasurer, and further ordering that upon proof being made to the court that payment had been made as aforesaid by the appellee, that appellee might then enter upon said property and use the same for the uses and purposes set forth in its petition filed in this case. To reverse such judgment, Rietveld has prosecuted an appeal to this court, contending that he was entitled to a judgment in his favor and that it was the duty of the circuit court, when petitioned by him, to determine who was entitled to the award and order that it should be paid to that person or persons before possession of the condemned land could be taken by appellee.

It is the law of this State, as provided both by constitutional provision and statutory enactment, that private property shall not be taken or damaged for public use without just compensation. The power to take private property whenever necessary for public use is inherent in the State and may be exercised by it or by any corporateor municipal authority, public body, officer, agent, person, commissioner or corporation to whom the legislature has delegated the authority. The legislature in the Eminent Domain Act (Ill.Rev.Stat. chap. 47, par. 1 et seq.) has provided for the exercise of that power and has prescribed the mode of ascertaining and paying just compensation for private property appropriated for public use, in cases where such compensation cannot be agreed upon by the parties interested, or the owner of the property is incapable of consenting, or his name or residence is unknown, or he is a nonresident of the State. The procedure provided is initiated by the filing of a petition in the circuit or county court, describing the property and setting forth the names of all persons interested therein as owners or otherwise, as appearing of record, if known, or if not known, stating that fact. Persons interested, whose names are unknown, may be made parties defendant by the description of ‘unknown owners.’ The act further provides for a trial by a jury, duly sworn to ascertain and report just compensation to the owner (and each owner) of the property and...