Corrigan v. City of Chicago

• Decision Date: 31 March 1893
• Citation: 33 N.E. 746,144 Ill. 537
• Parties: CORRIGAN et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

144 Ill. 537

33 N.E. 746

CORRIGAN et al.

v.CITY OF CHICAGO et al.¹

Supreme Court of Illinois.

March 31, 1893.

Appeal from circuit court, Cook county; R. S. Tuthill, Judge.

Proceeding by the city of Chicago to condemn land for the widening of Congress street. Thomas Corrigan and other property owners appeal. Reversed.Warvelle, Walsh & Madden, for appellants.

Edwin Burritt Smith and Solon Wilson, for appellee William McCarty.

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

An ordinance of the city of Chicago was duly passed, ordering the widening of Congress street from State street to Michigan avenue, in said city, and that the north 34 feet of sublot one, (1,) lot 2, block 11, in fractional section 15, addition to Chicago, and other property, be condemned therefor. Appellants owned the north 40 feet of the west 87.8 feet of the east 138 feet of said sublot 1. Appellee Emma Brinkworth, on the 31st day of May, 1888, became the lessee of appellants for the north 20 feet of said tract, for a term ending the 30th day of April, 1914, at an annual rental, for the first, of $960, payable in installments of $80 per month. If, however, any portion of the building to be erected on said premises was ready for occupancy before the expiration of said year, the rent was to beincreased to $175 per month from the time the building was so ready, and for the next succeeding 10 years,-that is, from April 30, 1889, to April, 1899,-$2,100 per annum, payable in monthly installments of $175; and it was stipulated that for the purpose of fixing the amount of rent to be paid for the 10 years from April 30, 1899, to April 30, 1909, an appraisement by parties indifferently chosen, etc., should be made after the month of February, 1899, without the buildings, and 6 per cent. thereon should be yearly rent for said period, and in like manner appraisement should be made after February, 1909, and 6 per cent. thereon should be the yearly rental of the residue of the term. Specific covenants in respect of such appraisement are included in said lease, but need not be mentioned here. The lessee to pay taxes in excess of $78 until 1899; and for that year, and thenceforward, all taxes; the buildings and improvements to become the property of the lessors upon the termination of the lease. It is expressly covenanted that, upon the termination of the lease, all building improvements and fixtures that may have been placed on the demised premises shall be delivered to the lessors in good condition, ordinary wear and tear and inevitable accident excepted; and, further, that the lessee will not remove any buildings or other improvements from said premises without the written consent of the lessors. Lien is declared upon the buildings and improvements on said premises, etc. Appellee McCarty on the same day, May 31, 1888, leased of appellants the south 20 feet of said 40-foot tract for a term ending April 30, 1914, and covenanted and agreed to pay, for the first year, $600, in monthly installments of $50 each; if, however, the building to be erected on said premises was ready before the expiration of the year, the increase of rent to $125 a month from the time it was ready for occupancy; and for the next 10 years of said term,-that is, from April 30, 1889, to April 30, 1899,-the sum of $1,500, in equal monthly installments; and with like provisions as in the Brinkworth lease for fixing the rent to be paid for the 10 years beginning April, 30, 1899, and ending April 30, 1909, and also for the 5 years from April 30, 1909, to April 30, 1914, with like provisions in respect of taxes, except that the lessee was to pay the taxes for the years 1888 and 1889 in excess of $222. The lease is in other respects the same as the Brink worth lease, with like agreements and covenants to deliver the premises in good repair to the lessors at the end of the term. Just compensation for the 34 feet of the property taken was found by the verdict of the jury to be $102,000, and the same was awarded to appellants, less the value of said leasehold estates, which was found to be $30,225.79, and the value of improvements on said premises, $4,527.75. Of said sum allowed as the value of the leasehold estates, there was awarded to Emma Brink worth, as owner thereof, in the north 20 feet of said 34 feet taken, $17,631.71, and for the value of her improvement thereon, $2,327.75, and to said McCarty, as owner of the leasehold estate of the south 20 feet, as value of leasehold estate, $12,594.08, and for his improvements on the same, $2,200. Motion for new trial having been overruled, the court found ‘that the respective sums of money awarded by the jury in and by their said verdict to the owners of said lots, pieces, and parcels of land and property are, and each of them is, a just compensation to the owner or owners thereof for the taking and damaging’ of the same by the proposed improvement. ‘And said owner or owners shall respectively accept from said city of Chicago such sum or sums as are so awarded on account of the lots, pieces, and parcels of land and property so owned by him, her, or them, respectively. * * * And that upon payment into this court by the said city of the said several sums of money for the use of the owner or owners of any or each of the said lots, pieces, and parcels of land and property, or upon proof made to or befor the court that the said sums of money, or any of them, have been paid to the owner or owners, respectively, of said lots, pieces, and parcels of land and property, the city of Chicago shall have the right at any time thereafter to take possession,’ etc., of said property in respect of which ‘such compensation shall have been so paid or deposited.’ The fee owners alone appeal, and assign for error that the court erred in overruling their motion for a new trial, and in entering judgment; second, that the court erred in giving each instruction in behalf of respondent William McCarty; third, that the court erred in giving instructions in behalf of Emma Brinkworth.

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

No objection is made or urged to the finding of the amount to be paid by the city as just compensation for the land taken, nor to the entry of judgment therefor, nor in authorizing the entry of the city into the 34-foot strip condemned upon payment of that sum. The verdicts and judgments are to be regarded as separate and distinct. Stubbings v. Village of Evanston, 136 Ill. 37, 26 N. E. Rep. 577. The controversy here, so far as made by counsel and insisted upon in this court, relates solely to the distribution of the sum found to be just compensation between the owners of the leasehold estates and the fee owners. The judgment of condemnation, and fixing the compensation to be paid by the city, will be affirmed; so there remain open for consideration the judgments distributing the compensation between and among the parties holding the several estates in the premises, only.

The lease to the defendant Emma Brinkworth expired April 30, 1914, and was upon a fixed annual rental until April 30, 1899, and after that the rental was to be fixed by appraisementof the land. The whole of the property included in her lease was taken by the city. The court instructed the jury, at her instance, ‘that the taking of property held by a tenant under a lease existing at the time of filing the petition to condemn does not release the tenant from the payment of rent, or any part thereof;’ that ‘the leasing of real estate to a tenant for a term of years is a conveyance to him of an interest in the land, and if the premises, or any part thereof, be taken by such a proceeding as this, the tenant is entitled to compensation for the damages, if any, to his leasehold estate, in respect to the unexpired part of the term;’ and, further, that the taking of the leasehold premises of said Brinkworth does not release her from the obligation to pay the full amount of rent required by the lease, etc. The correctness of these instructions is challenged.

That the tenant, as the owner of an estate for years, is guarantied just compensation before his title can be divested under the power of eminent domain, is not questioned. The lessee takes the term as every other interest in land is taken, subject to the exercise of that power whenever the public necessity and convenience demand it. He holds and enjoys the estate granted subject to the exercise of the sovereign power to appropriate his land to a public use, upon making to him just compensation; and if he suffers loss, or is deprived of his estate, he is provided with the same remedy that is given to all other owners, and holds his title subject to this right, as his landlord holds his title. Hence it has been held that a taking under the eminent domain is not a breach of the covenant for quiet enjoyment, and does not technically amount to an eviction. Folts v. Huntley, 7 Wend. 211;Parks v. City of Boston, 15 Pick. 198;Foote v. City of Cincinnati, 11 Ohio, 408;Patterson v. Boston, 20 Pick. 159; Dyer v. Wightman, 66 Pa. St. 425; Frost v. Earnest, 4 Whart. 90; Ross v. Dysart, 33 Pa. St. 452; Railway Co. v. Schmoele, 57 Pa. St. 271. And when a portion, only, of the land is taken, and a portion remains which is susceptible of occupation under the lease, we have held, following what we regard as the weight of authority, that the covenants of the lease are not abrogated, and that the tenant is bound by his covenant to pay full rent, according to its terms, (Stubbings v. Village of Evanston, 136 Ill. 37, 26 N. E. Rep. 577,) and that in such case the lessee would not be entitled to apportionment or an abatement of the rent for the part of the land taken, but was bound to pay rent for the whole of the premises demised. In that case we refrained from expressing any opinion in respect of the rule governing in cases where the entire tract or lot of land embraced in the lease is taken for the public use. That...