Drainage Com'rs v. Volke

• Decision Date: 09 November 1896
• Citation: 163 Ill. 243,45 N.E. 415
• Parties: DRAINAGE COM'RS v. VOLKE.
• Court: Illinois Supreme Court

163 Ill. 243

45 N.E. 415

DRAINAGE COM'RS

v.VOLKE.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, Second district.

Certiorari by Paulus Volke to review the record of proceedings before a justice of the peace by the drainage commissioners of Union drainage district No. 1 to condemn right of way for a ditch. A judgment quashing the record and proceedings was affirmed by the appeallate court (59 Ill. App. 283), and defendants appeal. Affirmed.

The following is the statement of the case made in the appellate court:

‘On the 7th of June, 1894, appellee filed a petition for writ of certiorari, showing that on the 13th of March, 1893, the commissioners of the Union drainage district, a drainage district situated in Cook and Will counties, instituted proceedings before a justice of the peace to condemn a right of way for a ditch over appellee's land; that he was summoned as the owner of the land, and appeared; that a hearing was had before a jury, who found that appellee was entitled to no damages; that the commissioners thereafter entered upon the land, and made excavations, to the injury of the land, and that they threatened to make further excavations. The petition charges that no offer of settlement was made by the commissioners before instituting the proceedings before the justice of the peace; that no description of the land appears in the record of the district, so as to give the district title to any specific part of the land, and that there is no sufficient record in the district to justify the taking of any part of the land. A writ of certiorari issued and was served upon the commissioners and the clerk of the commissioners. In support of a motion to quash the writ and dismiss the petition appellants offered as evidence parol testimony showing that after the finding of the jury the commissioners entered upon the land, and constructed a ditch across it 5 feet deep, 22 feet wide on top, and 16 feet at the bottom; that other ditches, consisting of main drain five miles long and a branch drain of two miles, had been donstructed at an expense of about $12,000. But the court refused to consider the testimony, and overruled the motion to quash the writ and dismiss the petition. The clerk of the drainage commissioners then made the following return:

‘State of Illinois, Will County-ss.: Before David S. Stephen, Justice of the Peace. In the matter of the application of drainage commissioners of Union district No. 1, in the town of Frankford, in the county of Will, and town of Rich, in the county of Cook, for assessment of damages of Paulus Volke, to land for drain 1893, March 13th, statement of drainage commissioners filed for requesting jury to assess damages of Paulus Volke to his land by reason of constructing over same. Venire of impaneling jury. Returned served by constable, Wm. H. Logan, as follows: ‘Personally served the within notice on the within-named Paulus Volke, by reading the same to him this 16th day of March, 1893.’ 1893, March 20th. Parties appear; venire returned, and following jury impaneled: Mark W. Hunt, G. J. Lankenau, W. M. Leffler, Fred Stauffenberg, Fred Balck, and Pete Pfeifer. Jury sworn, and court adjourned until 4 o'clock p. m. for the purpose of permitting the jury to view the land. 1893, March 20th, 4 p. m. Case called upon hearing the allegations and proofs of the parties. The jury return their verdict that the defendant, Paulus Volke, is entitled to no damages. It is therefore considered by the court that Paulus Volke sustains no damages by reason of said drain; therefore cannot recover damages of said drainage commissioners. David S. Stephen, Justice of the Peace.

‘Indorsed: ‘Filed in my office March 24th, 1893. H. L. Luehrs, Drainage Clerk.’

“In addition to above transcript of file, attention of the court is invited to the plans, profiles, specifications, and map of said drainage district. Respectfully submitted, Fred Bruggeman, by J. W. D'Arcy. Filed Oct. 2nd, 1894.'

‘October 2nd, 1894, defendants offered to make the same proofs and evidence as presented on the motion to quash the writ. The court ordered ‘that the record and proceedings be quashed and held for naught.’ To which order of the court the defendants excepted, and prayed an appeal.'J. W. D'Arcy, for appellants.

Haley & O'Donnell, for appellee.

PER CURIAM.

After a careful consideration of this case, we have arrived at the same conclusion as that reached by the appellate court, and have concluded to adopt the following opinion of that court, delivered by Mr. Justice Harker:

‘Appellants' first point of contention is that the writ should have been quashed because of the lapse of time between the condemnation of the land and the suing out of the...