Dep't of Pub. Works & Buildings v. Ryan

• Decision Date: 20 June 1934
• Docket Number: No. 22475.,22475.
• Citation: 357 Ill. 150,191 N.E. 259
• Parties: DEPARTMENT OF PUBLIC WORKS AND BUILDINGS v. RYAN et al.
• Court: Illinois Supreme Court

357 Ill. 150

191 N.E. 259

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS

v.RYAN et al.

No. 22475.

Supreme Court of Illinois.

June 20, 1934.

Proceeding in eminent domain by the Department of Public Works and Buildings against Oral Ryan and others.From the judgment, defendants appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Effingham County; F. R. Dove, judge.

G. F. Taylor and John N. Zimmerman, both of Effingham, for appellants.

Otto Kerner, Atty. Gen., and Paul Taylor, of Effingham, for appellee.

HERRICK, Justice.

The department of public works and buildings (hereinafter called the department), appellee, on November 29, 1933, filed its petition in eminent domain in the circuit court of Effingham county against the appellants(hereinafter called the defendants) seeking to condemn three different tracts of land, referred to in the petition as tracts 1, 2, and 3.Tract 1 is owned by the defendantBelle Erwin.Tract 2 is owned by Belle Erwin and the defendantNettie Harding Smith.Tract 3 is owned by the defendantsOral Ryan and Stella Ryan.Later an amended petition was filed, on which the cause was tried.By its amended petitionthe petitioner seeks to acquire an irregularly-shaped strip of land of the maximum width of 8.2 feet and containing .006 of an acre of land off of a city lot owned by Belle Erwin; an irregularly-shaped strip of land of the maximum width of 20.6 feet and containing .03 of an acre off the south side of a city lot owned by Belle Erwin and Nettie Harding Smith; and a strip of land 80 feet wide and 998 feet long, and also a large irregularly-shaped piece of ground having a maximum width of 167 feet, all owned by the two Ryans.The total acreage sought to be condemned in tract 3 is 1.34 acres.Tracts 1 and 2 face south on Fayette avenue.There was no street, thoroughfare, or public way through or on the Ryan land at the time of the filing of the petition.

To the amended petitionthe defendants filed their general and special demurrer, by which they challenged the right of the department to condemn the lands in question.The demurrer was overruled.The defendants then made their motion to dismiss the proceeding upon the ground that the department had no legal authority to acquire the lands of the defendants by eminent domain, inasmuch as all of the lands are situated within the city of Effingham.Evidence was heard on the motion, and it was also stipulated that each of the tracts of land sought to be condemned is located within the municipal boundaries of the city of Effingham.The motion was denied.A trial before a jury was had and verdicts returned assessing damages in favor of the defendants.The motion for a new trial made by the defendants was overruled, and judgments were entered on the verdicts.From such judgments and the order denying their motion to dismiss the amended petitionthe defendants prosecute this appeal.

The issues raised by the assignment of errorsare: (1) The legal right of the department to condemn the lands in question; (2)the rulings of the court upon the evidence and the modification of certain instructions requested by the defendants; and (3) whether the amount of damages assessed is adequate and whether such verdicts are contrary to the manifest weight of the evidence.

Route 11 is one of the durable, hard-surfaced roads authorized by the $60,000,000 bond issue provided by the Act of the Legislature approved June 22, 1917.Smith-HurdRev. St. 1933, c. 121, § 266 et seq., pp. 2527-2534;Cahill's Rev. St. 1933, pp. 2432-2438.The road was constructed several years ago, and was then located and routed through Effingham.As originally located by the department, route 11 entered the city from the west on West Fayette avenue, continued east thereon for nine blocks to Banker street, thence north on Banker street two blocks to Jefferson street, and thence east on Jefferson street to the easterly city limits.The department alleges that in order to eliminate the turns and angles in the route and to avoid passing through the congested business district it relocated a portion of the route through Effingham by adandoning the formerly used route from the intersection of Banker street and Fayette avenue and relocated the route to run from such street intersection easterly on Fayette avenue to the lands of the Ryans, and thence, by opening a new street through the Ryan lands, to the city limits, and to connect with route 11 at the point where it proceeds east from the east city limits.East Fayette avenue narrows as it passes the property of Erwin and Smith.To widen the avenue at this point it is sought to acquire tracts 1 and 2.The irregular tract taken as a part of tract 3 is used for the purpose of obtaining dirt for grading and for the bettering of drainage, and it is claimed by the department that such use will give an intersection affording better visibility to travelers.If it should be held that the department is without authority to condemn the lands in question, then the other errors assigned disappear.

The department bases its right to condemn upon certain provisions of the act of 1917, and ‘An Act in relation to State highways,’ approved June 24, 1921, as amended (Smith-HurdRev. St. 1933, c. 121, § 291 et seq., pp. 2547-2552, Cahill'sRev. St. 1933, c. 121, pp. 2448-2453); the provisions of section 2 of the Eminent Domain Act(Smith-HurdRev. St. 1933, c. 47, § 2, p. 1383, Cahill's Rev. St. 1933, p. 1342); and certain other sections and provisions of chapter 121 which are referred to herein later.

It is contended by the defendants that there is nothing contained in the provisions of any such statutes which gives the department the power of eminent domain within the boundaries of any incorporated city or village; that the act entitled, ‘An Act in relation to the construction of durable lardsurfaced roads in cities, villages and towns and making an appropriation therefor,’ approved June 11, 1925(Laws 1925, p. 530), was specifically repealed by House Bill 270, Laws1931, pp. 807-810, Smith-HurdRev. St. 1933, c. 121, §§ 288a-288b, p. 2546, Cahill's Rev. St. 1933, p. 2459.

The issue here raised has heretofore never been passed upon by this court.It involves the construction of different sections of the different legislative acts pertinent to the question presented.In the interpretation of such statuteswe are guided by certain fixed rules of law relative to the construction of statutes.The power to exercise eminent domain is inherent in the state.Section 13 of article 2 of our Constitution does not confer such power, but recognizes that such power is in the state.Section 13 is a restraint and limitation placed upon the exercise of this power as against the right of the private citizen, except in those cases where public necessity requires the taking of private property for public use, and such property can then be taken only by the payment of just compensation.Litchfield & Madison Railway Co. v. Alton & Southern Railroad, 305 Ill. 388, 137 N. E. 248;10 R. C. L. § 9, p. 11.The right of eminent domain by any corporation or department of the government, as distinguished from the state or sovereignty, can only be exercised when such grant is specifically conferred by legislative enactment, and then only in the manner and by the agency so authorized.St. Louis Connecting Railroad Co. v. Blumberg, 325 Ill. 387, 156 N. E. 298;Illinois State Trust Co. v. St. Louis, Iron Mountain & Southern Railway Co., 208 Ill. 419, 70 N. E. 357.The private property of the owner can only be taken against his will by strict conformity with the law granting the right of eminent domain.Chicago & Northwestern Railway Co. v. City of Chicago, 132 Ill. 372, 23 N. E. 1036.The Legislature has the power to confer the right of eminent domain, but it is the province of the court to determine whether such grant of power has been made and whether it is exercised within the grant.Illinois State Trust Co. v. St. Louis, Iron Mountain & Southern Railway Co., supra.The construction to be placed by the court upon any law purporting to authorize the taking of private property for public use is one of strict construction.Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934,32 Am. St. Rep. 179;Harvey v. Aurora & Geneva Railway Co., 174 Ill. 295, 51 N. E. 163;Chicago, Burlington & Quincy Railroad Co. v. Cavanagh, 278 Ill. 609, 116 N. E. 128.The department of public works and buildings is merely a governmental agency of the state created by legislative act, and has no power or authority beyond that conferred upon it by the Legislature.Chicago, Burlington & Quincy Railroad Co. v. Cavanagh, supra.

The city of Effingham possesses the power to establish and lay out streets within its borders by virtue of the legislative act particularly giving to it such authority.Smith-Hurd Rev. St. 1933, c. 24, art. 5, § 65.6, p. 339, Cahill's Rev. St. 1933, p. 324.The Eminent Domain Act, standing alone, cannot be held to grant to a state agency the power to establish and lay out streets, or to alter or change the same, within the territory of another municipality already possessing the same power herein claimed by the department.The system of state highways embraces: (1) State hard roads; (2) highways built at the joint expense of state and county; (3) all highways constructed under the state bond issue acts of 1917 and 1923 within cities, villages, and towns by the act of 1925, repealed in 1931; (4) all highways constructed or authorized by the state and federal governments and known as federal-aid roads; (5) all state highway extensions in cities, towns, and villages authorized by the provisions of sections 6a, 6b, 6c, 6d, and6e of the act of 1931, hereinafter referred to; (6) all highways hereafter added to and included within such system pursuant to the same act; (7) all highways heretofore constructed under the act of 1925, for which refunds to certain cities,...