Dep't of Pub. Works & Bldg. v. Lewis

• Decision Date: 04 June 1931
• Docket Number: No. 20425.,20425.
• Citation: 176 N.E. 345,344 Ill. 253
• Parties: DEPARTMENT OF PUBLIC WORKS AND BUILDINGS v. LEWIS et al.
• Court: Illinois Supreme Court

344 Ill. 253

176 N.E. 345

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS

v.LEWIS et al.

No. 20425.

Supreme Court of Illinois.

April 23, 1931.

As Modified on Denial of Rehearing June 4, 1931.

Condemnation proceedings by the Department of Public Works and Buildings against John Lewis and others. From the judgment, defendants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Jasper County; William B. Wright, judge.

George W. McColley, of Newton, Donald B. Craig, James W. Craig, Jr., Fred H. Kelly, and Craig Van Meter, all of Mattoon, for appellants.

Oscar E. Carlstrom, Atty. Gen. (Harlington Wood, of Springfield, of counsel), for appellee.

DUNN, C. J.

The department of public works and buildings filed a petition in the circuit court of Jasper county to condemn for use as a public highway a strip of land belonging to John and Barbara Lewis, 63 feet wide and 1,387 feet long, containing 1.91 acres. The owners filed a cross-petition for damages to land not taken. Upon a trial the jury awarded them $105.05 as compensation for the land taken and $200 as damages to land not taken. From the judgment rendered on the verdict, the defendants have appealed.

The land was sought to be condemned as a part of route No. 33 under the Sixty Million Dollar Road Bond Issue Act of 1917. Laws of 1917, p. 696. Route No. 33 is described as ‘beginning in a public highway at Effingham and running to Robinson, affording Effingham, Newton, Robinson and the intervening communities reasonable connections with each other.’ Pages 699, 704, § 9. It was constructed from Effingham to Robinson several years before the filing of the petition in this case except over the land in question, around which the travel has been detoured. The land in question lies in section 17, between Wheeler, in Jasper county, and Dietrich, in Effingham county, which are about four miles apart, and is about a mile west of Wheeler. Wheeler and Dietrich are communities between Effingham and Newton, and the latter two are twenty-three of twenty-four miles apart.

The defendants, before the trial, made a motion to dismiss the petition, which the court denied, and by their assignments of error and argument the appellants insist that the court erred in denying their motion as well as in its rulings on the evidence, in making prejudicial statements in the presence of the jury and in instructing the jury.

Section 2 of the Eminent Domain Act (Smith-Hurd Rev. St. 1929, c. 47, § 2) has declared specifically what facts must appear on the face of the petition where the right to take private property for public use without the owner's consent is sought to be enforced, and the court or judge is powerless to take any action in the premises until a petition is filed containing the statutory requisites, for it is by the petition that jurisdiction of the subject-matter is obtained. Every petition must therefore contain all the statutory requirements and show the authority of the petitioner to take the specific land sought to be taken and the object or purpose for which it is required. Smith v. Chicago & Western Indiana Railroad Co., 105 Ill. 511. No answer or plea is required of the defendant, and, if one is filed, it may be stricken from the files. The only question to be tried by the jury is the amount of compensation to be awarded, and no issue is required to be made but the parties may submit their evidence on that one question. O'Hare v. Chicago, Madison & Northern Railroad Co., 139 Ill. 151, 28 N. E. 923. While no plea or answer is required of the property owner, he has the undoubted right to contest the petitioner's right to condemn, and this he may do by motion to dismiss, and when he does so the burden is thrown upon the petitioner to maintain its right by proper proof. Lieberman v. Chicago & S. S. Rapid Transit Railroad Co., 141 Ill. 140, 30 N. E. 544;City of Chicago v. Lehmann, 262 Ill. 468, 104 N. E. 829;Harvey v. Aurora & Geneva Railway Co., 174 Ill. 295, 51 N. E. 163. Section 9 of the 1917 Road Bond Issue Act required ‘that the general location of the routes upon and along which said proposed roads are to be constructed shall be substantially as described in this section, so as to connect, with each other, the different communities and the principal cities of the State. * * * Route No. 33. Beginning in a public highway at Effingham and running to Robinson, affording Effingham, Newton, Robinson and the intervening communities reasonable connections with each other.’

The appellants by their written motion to dismiss showed as grounds for the motion that the petitioner was not authorized to exercise the right of eminent domain as to the premises described in the petition; that the premises are alleged to be needed for use as a right of way for a part of State Bond Issue Route No. 33, established by the act of June 22, 1917, providing for a bond issue of $60,000,000 and for a system of public roads to be constructed from the proceeds of the bond issue; that the act provided that route No. 33 should be located as follows: Beginning in a public highway at Effingham and running to Robinson, affording Effingham, Newton, Robinson, and the intervening communities reasonable connections with each other; that under said act of the Legislature route No. 33 was required to be built on public highways, except where minor changes in the location of said route became necessary to effectuate the provisions of the act, but that it was not laid out and built on public highways, but was laid out between the cities of Effingham and Newton adjacent to the right of way of the Illinois Central Railroad Company for a distance of approximately twenty-four miles where no public highway had ever existed before, which the exception of about three miles adjacent to the city of Effingham, although there were existing public highways which were laid out and in use connecting the cities of Effingham and Newton at the time of the passage of the act and at the time route No. 33 was laid out and built, which existing public highways were feasible for use as route No. 33, and the petitioner has no right to condemn these premises for the purpose of building said entirely new public highway laid out approximately twenty-four miles along the right of way of the Illinois Central Railroad Company between Effingham and Newton, in violation of the statute. Attached to the motion was the affidavit of the appellant John Lewis, stating that he had read the motion, was familiar with its contents, and that the matters and facts alleged in it were true. This motion was filed on April 12, 1930, and an amendment to the motion was filed on April 23 by leave of court, setting up as additional reasons why the petition for condemnation should be dismissed that no resolution...