Eckhoff v. Forest Pres. Dist. of Cook Cnty.

• Decision Date: 10 September 1941
• Docket Number: No. 25959.,25959.
• Citation: 377 Ill. 208,36 N.E.2d 245
• Parties: ECKHOFF et al. v. FOREST PRESERVE DIST. OF COOK COUNTY.
• Court: Illinois Supreme Court

377 Ill. 208

36 N.E.2d 245

ECKHOFF et al.

v.FOREST PRESERVE DIST. OF COOK COUNTY.

No. 25959.

Supreme Court of Illinois.

June 13, 1941.

As Modified on Denial of Rehearing Sept. 10, 1941.

Action by Cora Eckhoff and others against the Forest Preserve District of Cook County for damages for alleged delay in the exercise of the power of eminent domain. From a judgment of dismissal, the plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

George P. Novak and David H. Jackson, both of Chicago (Daniel S. Wentworth and Howard F. Bishop, both of Chicago, of counsel), for appellants.

George Basta and Frank S. Righeimer, both of Chicago (Frank S. Righeimer, Jr., of Chicago, of counsel), for appellee.

STONE, Justice.

Appellants filed suit in the circuit court of Cook county alleging that they are damaged by what they characterize as appellee the Forest Preserve District's continuous, wrongful, needless and vexatious delay in the exercise of the power of eminent domain concerning their property. The second amended complaint alleged the ownership of about 80 acres of land, declared the best use was for residential subdivision purposes, and set out the acts of the Forest Preserve District, which they claim are the basis of their suit.

Appellee, hereinafter also referred to as the district, filed a motion to strike the amended complaint on the ground, in substance, that it failed to state a cause of action. The motion was allowed and the amended complaint was stricken. Appellants appeal directly to this court on the ground, as they say, that a constitutional question is presented, since, under sections 2, 13 and 19 of article 2 of the constitution of this State and the fifth and fourteenth amendment to the constitution of the United States, they have a right to compensation for damages to land not taken, arising out of the dilatory tactics of the district. Appellee argues that no constitutional question is presented giving this court jurisdiction on direct appeal.

By plaintiffs' original brief it is argued that their action is for damages occasioned by the wrongful acts of the district by which their right of free use and enjoyment of their property was interfered with. In their reply they contend that this is an action to recover compensation for damage to land not taken, occasioned by the delay referred to, in violation of section 13 of article 2 of the constitution, which provides that private property shall not be taken or damaged for public use without payment of just compensation.

The second amended complaint sets out that during the period from 1925 until 1938, different notices of a proposed taking of appellants' property were served on them, and that, in 1938, a condemnation proceeding was instituted and prosecuted to a conclusion, whereby the district took 20 acres of the 80-acre tract.

The first question presenting itself on this record is whether this court has jurisdiction on direct appeal. It has been held that a property owner has a right to recover compensation for damages occasioned by wrongful delay in the prosecution of condemnation proceedings, and that such an action is based on the constitutional provisions herein referred to. Winkelman v. City of Chicago, 213 Ill. 360, 72 N.E. 1066;Roach v. Village of Winnetka, 366 Ill. 578, 10 N.E.2d 356. Those were cases where condemnation proceedings had been instituted and delay came thereafter. In the case before us a condemnation proceeding was instituted in 1931, but abandoned. It is not claimed its dismissal was not prompt or that the injury here complained of grew out of any delay while that proceeding was pending. The only other condemnation suit was that in 1938, which, as we have seen, was prosecuted to a conclusion, taking 20 acres. The complaint is based on delay in bringing condemnation proceedings, accompanied by negotiating with and serving various notices on appellants concerning the taking of their property for park purposes.

The complaint states the facts as alleged to exist. Those facts, so far as properly pleaded, are admitted by the motion to strike. Whether the admitted facts amount to a cause of action for damage to property not taken for public use depends upon whether those facts bring the cause within the constitutional provisions invoked. That, in turn, depends upon what those provisions mean. Thus a question of the construction of the constitution is raised. As that question has not been passed upon by this court, the appeal was properly brought here.

It has been held that to render a municipal corporation liable for compensation for damages arising out of delay in bringing a condemnation suit to trial, or for omission to make an election to take the land or abandon the proceedings within a reasonable time after the judgment has been fixed, the acts complained of must be wrongful and injurious to entitle the landowner to recover. Winkelman v. City of Chicago, supra; 2 Dillon on Municipal Corporations, 4th Ed., § 609; Simpson v. Kansas City, 111 Mo. 237, 20 S.W. 38;Feiten v. City of Milwaukee, 47 Wis. 494, 2 N.W. 1148; Carson v. City of Hartford, 48 Conn. 68; Norris v. Mayor, etc., of City of Baltimore, 44 Md. 598.

Under the constitution of 1848, it was essential to a right of recovery that there be direct physical injury to the corpus of the property by which the owner sustained some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provision, give a right of action. Under the constitution of 1870, redress is afforded in a certain class of cases for which there was no remedy under the constitution of 1848. It is clear, however, that this constitutional provision is not intended to reach every possible injury that might be occasioned by a public improvement. Certain injuries are necessarily incident to the ownership of property within a municipality possessing the power of eminent domain, which may indirectly impair its value but for which the law does not and never has afforded relief. Such,...