Fayette Cnty. v. Whitford

• Decision Date: 05 February 1937
• Docket Number: Gen. No. 23875.
• Citation: 365 Ill. 229,6 N.E.2d 157
• Parties: FAYETTE COUNTY v. WHITFORD et al.
• Court: Illinois Supreme Court

365 Ill. 229

6 N.E.2d 157

FAYETTE COUNTY

v.WHITFORD et al.

Gen. No. 23875.

Supreme Court of Illinois.

Dec. 10, 1936.

Rehearing Denied Feb. 5, 1937.

Petition by County of Fayette against Elmer L. Whitford and others for condemnation of land. From the judgment, defendants appeal.

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

Harry F. Johnson and Alfred S. Pfaff, both of Salem, for appellants.

Wm. Floyd Sonneman, State's Atty., and Will P. Welker, both of Vandalia, for appellee.

SHAW, Justice.

Pursuant to resolution of its board of supervisors the county of Fayette filed its petition for condemnation of lands for improvement of a state-aid road, wherein they sought to condemn 1.30 acres of land belonging to appellants, Elmer L. Whitford and Blossom Whitford, his wife. Another tract belonging to C. Guy Neeper and Margarette Neeper was included in the same proceeding, but they have not appealed. The suit resulted in a verdict and judgment for damages in the sum of $200 for land taken and $300 for damage to land not taken. The Whitfords have appealed.

Appellants assigned nine errors, but have abandoned all but four of them by failing to argue. The four which are argued are as follows: (1) That there was no showing of the necessity for the improvement; (2) that there was no proper discription or designation of the state-aid route in question; (3) that there was no proof of inability to agree on compensation to be paid before the petition was filed; and (4) alleged errors in respect to the giving and refusing of instructions.

The question as to the necessity for the improvement and the taking of the land in question was decided by the court on a hearing held on defendants' motion to dismiss. The petitioner introduced the records of the various resolutions of the board of supervisors setting forth the necessity and desirability of making the contemplated improvement. The maps and plans for the improvement, copies of which were attached to the petition, were introduced in evidence and carried the approval of the State Highway Department and of the chief highway engineer. These plans disclosed a highway of ordinary width and with ordinary curves, and there was no evidence of any kind to discredit the recital of the board of supervisors that the improvement was a necessary and proper one to be made. On a preliminary hearing such as this, the rule is that where the use to which the property is to be put is a public one the courts will not inquire into the question of its necessity unless there is an apparent abuse of the petitioner's discretion. Smith v. Drainage & Levee District, 229 Ill. 155, 82 N.E. 278. In the case of Chicago and Northwestern Railway Co. v. Town of Cicero, 154 Ill. 656, 39 N.E. 574, we pointed out that the location of new streets or the extension of old streets is a matter committed by the Legislature to the local authorities, and that it could only be an extreme case of oppression or outrage that would justify interference by a court. In the case of Chicago & Alton Railroad Co. v. City of Pontiac, 169 Ill. 155, 48 N.E. 485, 487, we said: ‘Unless there has been an abuse of power on the part of the city council in passing an ordinance for local improvements, the courts are powerless to interfere.’ These two cases are followed in Chicago & Northwestern Railway Co. v. City of Morrison, 195 Ill. 271, 63 N.E. 96, and many later ones. In ...