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

• Decision Date: 21 February 1935
• Docket Number: No. 22839.,22839.
• Citation: 359 Ill. 337,194 N.E. 587
• Parties: DEPARTMENT OF PUBLIC WORKS AND BUILDINGS v. SCHLICH et al.
• Court: Illinois Supreme Court

359 Ill. 337

194 N.E. 587

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS

v.SCHLICH et al.

No. 22839.

Supreme Court of Illinois.

Feb. 21, 1935.

Action by the Department of Public Works and Buildings against Adolph L. Schlich and others. From an order denying a motion to dismiss the petition and striking the motion, defendants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Washington County; Alfred D. riess, judge.

House & House, of Nashville, and June C. Smith and H. V. Murray, Jr., both of Centralia, for appellants.

Otto Kerner, Atty. Gen., and J. Paul Carter and A. W. Tharp, both of Nashville, for appellee.

STONE, Justice.

Appellee, the department of public works and building, brought this action in the circuit court of Washington county to condemn the lands of appellants for a right of way for the construction of a portion of the state hard road No. 177. On hearing, the right of the department to condemn the lands in question was sustained, and compensation and damages were fixed.

The only question involved in this appeal is the right of the department to locate the route over appellants' lands. Appellants say that route 177, in so far as involved in this proceeding, has been laid out over other lands, has been accepted as so laid out and large sums of money expended on contracts let for its improvement, and that the department is therefore without power to so change the route as to extend it over appellants' lands.

There is but little dispute in the facts. Route 177 is one of those provided for in the One Hundred Million Dollar Bond Issue Act (Smith-Hurd Ann. St. c. 121, § 281a et seq.). That act provides for the construction of a hard-surfaced road ‘beginning at Okawville, running thence to New Minden and to a connection with Route 153.’ Section 9, route 177 (Smith-Hurd Ann. St. c. 121, § 281i, route 177). New Minden is located approximately one mile north and ten miles east of Okawville, in Washington county. Route 15 extends across Washington county in a general westerly and northwesterly direction toward East St. Louis. It passes in a general westerly direction through Nashville, thence northwest to a point approximatelyone mile south of Okawville, where the road turns north into the southern part of Okawville, on Front street, and thence west. Route 177 is to join route 15 on Front street, in Okawville. The following plat shows the situation to which the record of this case pertains:

Image 1 (2.59" X 1.8") Available for Offline Print

The broken line extending west through section 16 and south into Okawville, called in this record the north route, is the route for which the condemnation proceedings here under consideration were instituted. The double line extending in a southwesterly direction across a portion of sections 15, 16, and 21, entering Okawville from the east, and called in this record the east route, is the route which had been adopted by the department and upon which a sum totaling something over $18,000 has been expended. The irregular lines appearing in the plat denote the boundaries of Okawville and a settlement east of the northern part of Okawville known as Pinch. Plum creek passes through this territory in a general northwesterly direction, flowing into the Kaskaskia river a few miles northwest of Okawville. Route 177 west from New Mindenhas been completed up to the point of divergence in the western part of section 15, and no question is raised as to that part of the road.

Appellee's counsel say that, even before the selection of the east route, approval of the north route had been given by the state's engineers. The evidence shows that in locating a highway between various termini mentioned in the statute it was the practice of the engineering department of the division of highways to first make a reconnaissance survey. This consists of a general inspection of the country through which the road is to extend, usually accomplished by driving over various routes in automobiles, measuring the distance by the speedometer of the automobile. Where not feasible to use an automobile, this survey is made on foot. A rough estimate of the cost of bridges, fills, and other factors is made. When this has been done, the engineer in charge draws maps of the various routes, showing their location and in a general way the distances and factors to be considered. When this has been done, these maps are submitted to the chief engineer and the director of the department, who indorse their initials upon the plat showing the route which from the data then on hand seems to them most feasible. After these original inspections of the proposed routes, the people of the communities interested in a proposed route demonstrate their interest by securing deeds to right of way and raising funds for the purpose of meeting the expense of compensation settlements or condemnation suits where necessary to procure the right of way. In this case the original reconnaissance survey was made in 1928. Three routes were indicated, as shown by the maps; the east route and the north route being among them.

On March 24, 1931, the director of the department and the chief highway engineer entered an order officially locating the road over the east route. The order recited: ‘Having investigated all of the proposed locations for state Bond Issue Route 177 from Okawville to State Bond Issue Route 153, and having held a final hearing, the Department of Public Works and Buildings announces the choice of the location described below for State Bond Issue Route 177 between the points named.’ There follows in this order a description of the route known in this case as the east route. To this order was attached a plat showing only the east route.

It appears from the evidence that the plat showing the north route, and originally initialed by the chief engineer, was made from the original reconnaissance survey, and that no other map of that route had been made when the order of March 24, 1931, was entered and when the actual location of the road appears to have taken place. Prior to that date, individuals interested in the location of the road over each of these routes procured deeds for the right of way in so far as they were able to do so. The deeds for the right of way over the north route were never delivered to the department, but appear to have been procured in an effort to induce the department to select that route. After March 24, 1931, the citizens of the community in and around Okawville were directed by the department to obtain the necessary right of way for the construction of a highway over the east route. This was done in part by voluntary conveyances, and as to four landowners with whom no agreement could be reached a fund was, at the suggestion of the department, raised by the citizens of that community to meet the expense of condemnation proceedings, and the department in February, 1932, caused suit to be filed in the county court of Washington county to condemn the right of way for this east route over the lands of those who and not deeded it. The suit proceeded to a hearing, and judgment was entered therein on July 1, 1932. By that judgment the court specifically found from the evidence submitted that the department had located the highway over the east route and was authorized to construct it over that route. This was a part of the case made by the department to show its right to maintain the suit. Compensation and damages awarded in that case amounted to something over $2,500. This was paid by funds raised by the people of the local community. Other expenses in the form of court costs and procuring voluntary conveyances brought the total sum raised by the people of the community to between $3,500 and $3,600. Thereupon the department advertised for bids for the construction of the highway from Okawville to New Minden over the east route. A contract was entered into for the...