Forest Pres. Dist. of Cook Cnty. v. Lehmann Estate, Inc., 28156.

• Decision Date: 15 January 1945
• Docket Number: No. 28156.,28156.
• Citation: 58 N.E.2d 538,388 Ill. 416
• Parties: FOREST PRESERVE DIST. OF COOK COUNTY v. LEHMANN ESTATE, Inc.
• Court: Illinois Supreme Court

388 Ill. 416

58 N.E.2d 538

FOREST PRESERVE DIST. OF COOK COUNTY

v.LEHMANN ESTATE, Inc.

No. 28156.

Supreme Court of Illinois.

Nov. 22, 1944.

Rehearing Denied Jan. 15, 1945.

Appeal from Circuit Court, Cook County; Cornelius J. Harrington, judge.

Condemnation proceedings by the Forest Preserve District of Cook County against Lehmann Estate, Inc. From a judgment for $7,600, the defendant appeals.

Judgment affirmed.

Urion, Bishop 3 Sladkey, of Chicago (Howard F. Bishop, Jerome Sladkey, and George P. Novak, all of Chicago, of counsel), for appellant.

George A. Basta and Frank S. Righeimer, both of Chicago, for appellee.

THOMPSON, Justice.

The Forest Preserve District of Cook county, on February 11, 1942, filed its petition in eminent domain in the circuit court of that county for the condemnation of certain vacant land owned by appellant, located within the village limits of Melrose Park. The jury viewed the premises and returned a verdict fixing the compensation to be paid for the property at $7600. Judgment was rendered on the verdict and appellant prosecutes this appeal.

Appellant contends that the description of the property in the petition is so inaccurate, insufficient and defective that the proceedings should have been dismissed. The land sought to be acquired was described in the petition as ‘That part lying East of the East line of First Avenue of Lots 2, 3, 5, and 6 (except that part conveyed to the Forest Preserve District by Warranty Deed dated February 24, 1917, and recorded on February 27, 1917, as document 6056317 and except the Railroad) in Guenther Amling and Weiss Subdivision of the South half of the North West Quarter and the West half of the South half of the North East Quarter of Section 2, Township 39 North, Range 12, East of the 3rd P.M. in Cook County, Illinois.’ It is alleged that this description is defective and insufficient because there is no reference in the deed mentioned to said lots 2, 3, 5, and 6, and it cannot therefore be determined what part of said lots is included and what part excluded in the description in the petition, and further that such description is defective because it refers to another document not attached to the petition. The answer of the appellee to these objections is that they were not made in the circuit court, and an examination of the record shows that this is true. The objection made in the circuit court to the description was based entirely on a conflict or discrepancy between the course and the distance given in two calls contained in the description of the property conveyed by the deed referred to in the petition, which two calls established the eastern boundary line of the property sought to be condemned; and any question of the insufficiency of said description in the petition because of reference therein to another instrument or because said instrument refered to said nothing concerning lots 2, 3, 5 and 6 was not mentioned in that connection. These objections to the sufficiency of the description appear in appellant's brief, but not in the record. Since they were not made on the trial, they cannot be made for the first time in this court.

The deed to which reference is made in the petition is a deed from the Lehmann heirs to the Forest Preserve District, conveying lands of the Lehmann estate. The eastern boundary line of the land sought to be condemned is shown by the description in the petition to be a line described in said deed as beginning at a point in the south line of the northeast quarter of said section 2, 95.9 feet east O. & P. R. Co. v. Rausch, 245 Ill. 477, 92 thence north 23 degrees, 55 minutes east, 1372.6 feet to a point in the center line of the right-of-way of the Wisconsin Central Railway Company. The attack upon the description in the lower court was based wholly upon the undisputed repugnancy between the above-stated course and the distance of said eastern boundary line. It is conceded that both of them cannot be correct. If, as appellee has assumed, the course is correct, and the distance is to be ignored, the area of the tract sought to be condemned is approximately 9 1/2 acres. If, as appellant contends, the distance should be followed and the course rejected, the area is 10 1/2 acres. It is necessary that the property to be condemned be described in the petition (Ill.Rev.Stat.1943, chap. 47, par. 2) with reasonable certainty. Chicago, O & P. R. Co. v. Rausch, 245 Ill. 477, 92 N.E. 300. The question here presented is whether the tract of land sought to be taken is described with reasonable certainty when the course and distance of its eastern boundary line cannot be reconciled; and this leads to the further question whether, in this instance, the distance given must yield to the course. If these questions can be answered affirmatively, then the property which appellee is seeking to condemn is described with sufficient certainty.

Appellee called Ernest Bittler and Herman Bremer, surveyors for 29 and 50 years, respectively. Bittler, who is the chief surveyor and engineer for the Forest Preserve District, had made a survey of the land taken and drawn a plat thereof which, over appellant's objection, was admitted in evidence. He testified, and it also appeared from the plat, that in establishing the east line of the property he had followed the course, namely north 23 degrees, 55 minutes east, instead of the distance of 1372.6 feet, and that by using the course given in the deed the length of the east boundary line from a point in the south line of the northeast quarter of said section 95.9 feet east of the center of said section to the south right-of-way line of the railroad is a distance of 1354.43 feet. He further testified that it is practically 36 feet from the south line of the railroad right-of-way to the middle of the track, and taking into consideration this fact and the fact that the railroad is on an angle and there would therefore be more distance from the south right-of-way line to the center of the railroad track in following the given course than if the course were swung farther east, the length of the line in question as found by him measured 1392 feet to the center of the track. He testified that he believed that the original surveyor found the distance, the same as the witness, to be 1392 feet by the course, but that in taking his figures from his field book, inadvertently wrote them as 1372 instead of 1392. He stated that when there is a conflict between course and distance, such as the conflict in question in the deed of February 24, 1917, and there is no established occupational line and no fixed monuments at each end of the line, the course and not the distance should control. The engineer Bremer also testified that in differences such as this the general practice among surveyors is to take the course in preference to the distance. In opposition to their testimony, William Thomas and Harry L. Emerson, surveyors for 30 and 40 years, respectively, testified for appellant that the recognized rule among surveyors in case of a conflict between course and distance is to be governed by the distance rather than the course.

A circumstance relied upon by appellee as indicating the correctness of its contention is the ordinance of the Forest Preserve District providing for the purchase of the property acquired from the Lehmann Estate by the deed to which reference is made in the description in the condemnation petition. While the line in question is described in the ordinance exactly as in the deed as running ‘thence north 23 degrees 55 minutes east 1372.6 feet to the center line of the right-of-way of the Wisconsin Central Railway Company,’ there appears in the ordinance, immediately following this description, the further words, which are omitted from the deed, ‘which is north 43 degrees 35 minutes west 1757 feet from the south line of the northeast quarter of said section 2.’ Bittler testified that he and Bremer figured the different distances and angles given in the ordinance and that, by using the course for the east boundary line in question, they arrived at a point in the center of the railroad right-of-way which was 1768.32 feet from the south line of the northeast quarter of the section on the angle of 43 degrees 35 minutes, instead of 1757 feet of said angle as the distance was given in the ordinance, while by using the distance of 1372.6 feet to establish said east boundary line, as appellant contends should be done, the distance from said south line at the angle given was approximately 1707 feet. There was thus, by using the course given in the deed for the line in question, a difference of only 11 feet between the location of the northern terminus of said line as given in the ordinance as against a 50-foot difference in using the stated dimension of said line.

It was proved by appellee and not disputed by appellant that, at the time of the purchase by the Forest Preserve District from the Lehmanns in 1917 of the property conveyed by the deed referred to, the description of the land to be conveyed was furnished and also the deed was prepared by the Lehmanns. A familiar rule of construction adopted by this court requires that where there are two descriptions in a deed of the land conveyed and they do not coincide, the deed shall be taken most favorably for the grantee. Decker v. Stansberry, 249 Ill. 487, 94 N.E. 940, Ann.Cas.1912A, 227;Peoria & P. U. Ry. Co. v. Tamplin, 156 Ill. 285, 40 N.E. 960;Casler v. Byers, 129 Ill. 657, 22 N.E. 507;Boone v. Clark, 129 Ill. 466, 21 N.E. 850,5 L.R.A. 276;Sharp v. Thompson, 100 Ill. 447, 39 Am.Rep. 61;Cottingham v. Parr, 93 Ill. 233. And, although the rule is subject to variation, according to the manifest intention of the parties and the circumstances of the case, distances are considered as being more uncertain than courses and must yield to courses where both cannot be followed in determining the location of a boundary line. 8 Am.Jur. pp. 789, 790; 4...