Dep't of Pub. Works & Bldgs. v. Pittman, 22134.
| Decision Date | 23 February 1934 |
| Docket Number | No. 22134.,22134. |
| Citation | 189 N.E. 491,355 Ill. 482 |
| Parties | DEPARTMENT OF PUBLIC WORKS AND BUILDINGS v. PITTMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Condemnation proceeding by the Department of Public Works and Buildings against Anna Pittman and others. From the judgment, defendants appeal.
Affirmed.
Appeal from Bureau County Court; R. L. Russell, Judge.
Horace R. Brown and J. L. Spaulding, both of Princeton, for appellants.
Otto Kerner, Atty. Gen., and Josef T. Skinner, State's Atty., of Princeton, for appellee.
The Department of Public Works and Buildings of the State of Illinois (hereinafter called the department), appellee herein, filed its amended petition in eminent domain in the county court of Bureau county against the appellants (hereinafter called the defendants) seeking to condemn a strip of land approximately 80 feet wide over and across the lands of the defendants for the location thereon of a part of route 88 of the state wide system of durable, hard-surfaced roads. The defendants made their motion to dismiss the amended petition and thereby challenged the sufficiency of the allegations of the amended petition, and also contended that the department was exceeding its authority in undertaking to condemn the defendants' lands. The motion was overruled. Thereupon the defendants filed their answers and cross-petitions. The cross-petitions prayed for the allowance of damages for lands not taken. The cause was tried by a jury, and a verdict was returned assessing damages in favor of the defendants.Motion for new trial made by the defendants was overruled, and judgments were entered on the verdict. From such judgments the defendants prosecute this appeal.
The general location of route 88 by the department has been sustained by this court. Boyden v. Department of Public Works, 349 Ill. 363, 182 N. E. 379. The department contends that the defendants herein are concluded by the decree in the Boyden Case. The defendants were not parties to that suit, and are not bound by the decree in that case so far as the location of the road on the lands of the defendants is concerned. The allegations of the amended petition were not expressed in the most apt terms or with the utmost precision, but in connection with the exhibits attached we believe they were sufficient to apprise the defendants that the department had definitely located the right of way for the proposed highway over and across the lands of the defendants. It was not necessary to allege in the amended petition, as contended by the defendants, that there was not a public highway on which route 88 could be located or that there was any reason for not locating it on an already existing highway, or that the proposed highway was a minor change occasioned by deviations from the existing highway. The location of the highway as set forth in the amended petition was notice to the defendants of all these facts. The statute expressly confers on the department the power of eminent domain. The amended petition alleges that the department is one of the executive branches of the state; that route 88 is one of the durable, hard-surfaced roads provided by the act of the Legislature approved June 29, 1923 (Laws of 1923, p. 512 [Smith-Hurd Rev. St. 1933, c. 121, § 281a et seq.]), and that section 11 of the act (Smith-Hurd 1933, c. 121, § 281k) provides for the procurement of the right of way and for the exercise of the right of eminent domain. The amended petition further alleges that the department is constructing such road, and that the course and location of that road has been established on, through, and across the lands of the defendants, and that the property sought to be taken was within the purview of the statute under which the department was acting.
We do not regard the case of City of Mound City v. Mason, 262 Ill. 392, 104 N. E. 685, as an authority in point in the present case. The petition in that case sought to condemn land for the purpose of obtaining earth for the purpose of raising and strengthening the city's levee system. The petition did not refer to any statute under which the petition was brought, and did not allege that the city was subject to, or in danger of, or threatened with, overflow or inundation, or that the city had any system of levees. The amended petition here definitely withstands, so far as applicable, the vices in the petition in the Mound City Case, supra.
Route 88 has already been constructed from its northern terminus south to route 92 and from the southern terminus northerly to route 7, leaving the road unconstructed between the termini, a distance of about 13 1/2 miles. Construction work has been started northerly from route 7. The southern end of route 88 as already built, at its intersection with route 92, and the northern end of the route as already built, at its intersection with route 7, are in practical apposition to one another. The unconstructed portion as located runs on a line due north and south on the section lines, except at a point about 3 miles north of Buda, where route 88 crosses the Chicago & Northwestern Railway tracks. As route 88 approaches the railway tracks, the road deviates from the section line in order to secure the necessary adjustment for the crossing over the railroad tracks. After making the crossing, the road returns to and follows the section line. Beginning at the northerly end, the proposed route extends southerly over the existing highway for a distance of approximately 2 1/2 miles. At this point, which is approximately the common section corner of sections 27, 28, 21, and 22 in township 18 north range 7 east of the third principal meridian, the route as located leaves the existing public road and extends south through private propertyfor about 4 1/4 miles, at which point it again enters upon an existing highway and follows it southerly about 1 3/4 miles, then extends over private property for a distance of about 2 miles, then over the existing highway for about 1 1/2 miles, then over private property for about 1 1/2 miles to its intersection with route 7.
It is claimed by the defendants that route 88 should have followed the existing highway at the section corner of the four sections. At such section corner the existing highway turns with approximately a 90-degree angle and runs easterly about one-half mile. It then turns southerly with approximately a 90-degree angle and runs approximately to the section line previously mentioned. It then turns westerly at a 90-degree angle for a very short distance, then turns southerly or southwesterly, until, near the southern line of section 27, it turns southerly, and extends in a southerly direction, with slight angles, to a point in the south half of section 10, township 17 north, range 7 east of the fourth principal meridian, at which point the existing highway turns in a southwesterly direction and runs to a point near the common section corner of sections 15, 16, 9, and 10 in township 17.
The evidence shows that the existing highway at the common section corner of sections 28, 27, 21, and 22 is a graveled road and that there are farmhouses and improvements along the existing highway. The defendants are brother and sisters. Their lands are not owned as tenants in common, but the tracts are operated as one farm, Eli and Anna Pittman living on the farm. Anna Pittman owns the southwest quarter of the southwest quarter of section 3, in township 17 north, range 7, on which the residence house and some small buildings, a pumping plant, water supply, orchard, flowers, and decorative plants are located. Faith Pittman owns the southeast quarter of the southeast quarter of section 4, same township and range, on which is located the principal corncrib used in the operation of the farm. This tract also receives its water supply from the equipment on the Anna...
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