Coty of Chicago v. Farwell

• Decision Date: 17 February 1919
• Docket Number: No. 12214.,12214.
• Citation: 121 N.E. 795,286 Ill. 415
• Parties: COTY OF CHICAGO v. FARWELL et al.
• Court: Illinois Supreme Court

286 Ill. 415

121 N.E. 795

COTY OF CHICAGO

v.FARWELL et al.

No. 12214.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 17, 1919.

Appeal from Cook County Court; Wm. L. Pond, Judge.

Proceeding by the City of Chicago against Arthur L. Farwell, Jas. S. Kirk & Co., and others, to condemn land for an improvement. From a judgment fixing the compensation to be paid, the last-named defendant appeals. Affirmed.

Carter, J., dissenting.

Holt, Cutting & Sidley and Wilson, Moore & McIlvaine, all of Chicago (Charles S. Holt and N. G. Moore, both of Chicago, of counsel), for appellant.

Samuel A. Ettelson, Corp. Counsel, Eugene H. Dupee, William A. Bither, Wm. J. Donlin, and Wm. H. Dillon, all of Chicago, for appellee.

CARTWRIGHT, J.

The city of Chicago provided by ordinance for an improvement consisting of a thoroughfare with two levels extending north from East Randolph street along Michigan avenue over the Chicago river and thence north to the center line of East Chicago avenue, which is fully described in City of Chicago v. Farwell, 284 Ill. 491, 120 N. E. 520. The appellant, James S. Kirk & Co., owned about an acre and a half of ground of irregular shape adjoining the Chicago river on the north, and it was necessary to acquire for the improvement about three-tenths of the tract on the west side. The whole of the land was improved with buildings and machinery for the manufacture of soap, and upon a jury trial there was a verdict fixing the compensation to be paid for the portion taken at $433,096, on which judgment was entered. The record has been brought to this court by appeal.

The trial occupied 13 weeks, making a record of nearly 1,000 pages, and the briefs and arguments in this court cover about 400 pages. In the brief for the appellant the points relied upon for reversal are stated under 17 headings, but the argument which follows in their support does not regard the points, either in their order or in form. In the brief for the appellee the points are stated under 20 headings, and they are not followed in the argument. The court is better able to understand and consider the questions involved in the review of a record where there is a systematic arrangement of points and arguments; but in this case the questions involved are neither numerous nor complex, and it will be the endeavor of the court not to omit or overlook anything material to a decision.

The appellant offered to prove that the buildings on the property had advanced in market value $150,000 and the machinery $300,000 after the proceeding was begun, and insisted that the compensation was to be fixed as of the time of the trial. The court refused to adopt that view of the law, and the evidence was not admitted. The Constitution provides that private property shall not be taken or damaged for public use without just compensation, and it is always held that the compensation is to be determined as of the time of the taking. There is a diversity of rule in different jurisdictions as to the time when a taking for public use occurs; but in this state that question has passed beyond the stage of discussion and has become a fixed rule, which is that the compensation is to be determined as of the date of filing the petition and not at the time of the trial. South Park Com'rs v. Dunlevy, 91 Ill. 49;Dupuis v. Chicago & North Wisconsin Rilway Co., 115 Ill. 97, 3 N. E. 720;Chicago, Evanston & Lake Superior Railroad Co. v. Catholic Bishop of Chicago, 119 Ill. 525, 10 N. E. 372;Lieberman v. Chicago & South Side Rapid Transit Railroad Co., 141 Ill. 140, 30 N. E. 544;Chicago & State Line Railway Co. v. Mines, 221 Ill. 448, 77 N. E. 898. The rule so established was undisturbed by the decision in Sanitary District v. Chapin, 226 Ill. 499, 80 N. E. 1017,9 Ann. Cas. 113, but was there reasserted, and the petition was dismissed for the simple reason that the settled rule is that compensation is to be fixed at the time of filing the petition. The sanitary district had filed a petition to condemn land and had made no attempt to prosecute the suit for more than four years and three months. There was a motion to dismiss the petition for want of prosecution, and the court was sustained in dismissing it for want of due diligence and the necessary unjust result. The rule adopted and enforced is not only in accordance with the one generally recognized, but is the only feasible and practicable rule. Property may decrease in market value after a petition is filed, as in the Dunlevy Case, or the projected improvement may cause a great enhancement of market values from general benefits affecting an entire community or a large portion of it, for which the public could not in justice be required to pay. The original petition of the city was filed on March 14, 1914, and the commissioners appointed by the court filed their report on July 15, 1915, and the separate trial as to this property began on October 2, 1917. The court adopted the time of filing the commissioners' report as the date for fixing the compensation, and this was right, since section 18 of the Local Improvement Act (Hurd's Rev. St. 1917, c. 24, § 524) provides that the return and filing the report shall be deemed an application by the petitioner for judgment of condemnation of the property to be taken or damaged and for a confirmation of the assessment of benefits. By that statute the application for condemnation begins when the petitioner files the report of the commissioners.

The report awarded compensation and damages as to 51 pieces of property. Summons was issued the day the report was filed. Trial on legal objections occupied the court until January 19, 1917. Trials on awards and assessments began February 6, 1917, and there was no delay chargeable to any party. If it should be held that the Constitutionrequires the compensation to be fixed when the money is paid and possession taken, another trial would be necessary, since part of the money must come from special assessments, and payment could not have been made at the time of the trial.

The appellant called Walter H. McDonald, one of the commissioners who made the report, and proposed to examine him as to what elements of value he put in his award and upon what basis it was made, and the court refused to allow the examination, which was correct. Wright v. City of Chicago, 48 Ill. 285;Quick v. Village of River Forest, 130 Ill. 323, 22 N. E. 816;Washington Park Club v. City of Chicago, 219 Ill. 323, 76 N. E. 383;City of Belleville v. Mitchell, 273 Ill. 136, 112 N. E. 368. The argument that a commissioner, like a juror, may be called to sustain what he has done, does not apply here, since the manifest and only purpose was to impeach the report, which the appellant claimed did not award sufficient compensation.

The court fixed the market value of the property to be taken as the measure of compensation, and appellant contends that the question whether the property had a market value was one of fact, which should have been submitted to the jury. The law is that market value is the measure of compensation. Haslem v. Galena & Southern Wisconsin Railroad Co., 64 Ill. 353;Jacksonville & Southeastern Railway Co. v. Walsh, 106 Ill. 253;Chicago & Evanston Railroad Co. v. Jacobs, 110 Ill. 414;Kiernan v. Chicago, Santa Fé & California Railway Co., 123 Ill. 188, 14 N. E. 18;Chicago, Peoria & St. Louis Railway Co. v. Greiney, 137 Ill. 628, 25 N. E. 798. What constitutes ‘market value’ is a question of law, and is the price which the owner, if desirous of selling, would under ordinary circumstances surrounding the sale of property have sold the property for, and what a person desirous of purchasing, but not compelled to purchase, would have paid for it. Ligare v. Chicago, Madison & Northern Railroad Co., 166 Ill. 249, 46 N. E. 803. There are a few exceptional cases in which market value cannot be the legal standard because the property is of such nature and applied to such special use that it cannot have a market value, such as a church, college, cemetery, clubhouse, or terminal of a railroad. Lake Shore & Michigan Southern Railway Co. v. Chicago & Western Indiana Railroad Co., 100 Ill. 21;Chicago & Northwestern Railway Co. v. Chicago & Evanston Railroad Co., 112 Ill. 589;Sanitary District v. Pittsburgh, Ft. Wayne & Chicago Railway Co., 216 Ill. 575, 75 N. E. 248. As to such property the law permits a resort to any evidence available to prove value, such as the amount of business done or the use made of the property, and the like. There was no evidence tending in any degree to bring the property of appellant within any exception so recognized. The development of an industry from the housewife's ash-leach and soap-kettle in the back yard to the great soap factory, or from the smokehouse and annual butchering to the immense plant of the packer, or from the vinegar barrel to the factory, does not change the nature of things, and there is nothing about making soap which renders the business peculiar or different from any establishment where a houshold necessity is made. It requires no franchise to make soap, and a factory making large quantities of soap and established 40 years is not different in its nature from a small one established yesterday. There being no evidence offered or available to bring the soap factory within an exception to be established rule of law, the court did not err in the holding.

The principal and substantial complaint is that the appellant did not receive just compensation for the property taken, and appellant's counsel say that by its evidence the whole plant was worth, as a living plant, $2,315,961, and, excluding enhancement of value by the improvement of what will be left, it will be worth no more than $750,200, entailing a loss of $1,565,761; and, even applying the enhancement in value of the remainder by the improvement, the net loss would be $1,481,247.54, while the verdict is for only $433,096. This difference arises,...