Forest Pres. Dist. of Cook Cnty. v. Chicago Title & Trust Co.

• Decision Date: 23 December 1932
• Docket Number: 21455.,Nos. 21454,s. 21454
• Citation: 183 N.E. 819,351 Ill. 48
• Court: Illinois Supreme Court
• Parties: FOREST PRESERVE DIST. OF COOK COUNTY v. CHICAGO TITLE & TRUST CO. et al.

351 Ill. 48

183 N.E. 819

FOREST PRESERVE DIST. OF COOK COUNTY

v.CHICAGO TITLE & TRUST CO. et al.

Nos. 21454, 21455.

Supreme Court of Illinois.

Dec. 23, 1932.

Condemnation proceeding by the Forest Preserve District of Cook County against the Chicago Title & Trust Company and others, who filed cross-petition claiming damages to portion of land not proposed to be taken. From an adverse judgment, the defendants appeal.

Affirmed.

Appeal from Circuit Court, Cook County; C. A. Hood, Judge.

I. T. Greenacre, Alice Greenacre, and Anna Svatik, all of Chicago, for appellants.

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

HEARD, C. J.

Two appeals were taken, one by the Calumet Pickle Works, a corporation, and the other by the remaining appellants, from a judgment order of condemnation of the circuit court of Cook county in a suit brought by appellee, the forest preserve district of Cook county, to condemn lands of appellants and others for the purposes of the district. The appeals have been consolidated in this court.

Appellants appeared and made motions to dismiss appellee's petition, denying that the lands were necessary or desirable for the lawful uses and purposes of appellee or of the character of lands it is authorized to acquire, and alleged that the purpose for which the land was sought to be taken was for the construction of a road over a portion thereof, to constitute an extension of a road now existing in the state of Indiana, and for an approach to the forest preserve of Cook county for the use and benefit of the residents of Indiana, and to enable residents of Indiana to use and enjoy the forest preserve tracts maintained by the district, and that such purpose was not a proper or lawful purpose for which it might acquire land. It was also alleged that the district was without funds, and that it would not at any time within the reasonably near future have funds, with which to pay an award for damages to the property sought to be taken. The objections were overruled; appellants filing cross-petitions claiming damages to the portion of the land not proposed to be taken. A jury was called and evidence heard as to the value of the property taken and as to damages to the respective remainders. The jury found for the district, assessed damages for the respective tracts of land to be taken, and found that the remaining tracts were not damaged. Judgment of condemnation was entered in accordance with the verdict. After an appeal had been taken to this court by appellants, appellee paid the compensation adjudged for lands other than those represented by appellants, and filed a petition asking that it be allowed to take possession of appellants' lands ordered condemned upon its entering into a bond with good and sufficient security. After a hearing upon the petition, the court entered an order giving leave to appellee to take possession of the lands upon giving bond in the sum of $30,000, with security to be approved by the court. Thereupon appellee filed its bond in the sum of $30,000, with the Maryland Casualty Company as surety, for the payment to appellants such compensation as might be finally adjudged in this cause. The bond was approved by the court.

The legality of the use for which appellee seeks to obtain the premises in question was the most strenuously contested question in the court below, and appellants in this court are insisting that the use is not a legal purpose for which petitioner may take land, that the land was not of the character which could be condemned for the use of a forest preserve, and that its acquisition was unnecessary for such use.

The power to acquire land given by the Forest Preserve Act (Smith-Hurd Rev. St. 1931, c. 57 1/2, § 1 et seq.) implies that such land is reasonably necessary for that purpose, and the question as to what is and what is not a forest is limited to the character of the lands described in the statute and is a question of fact which may be inquired into by the court, and the commissioners of a forest preserve district are not left, without limitation, to determine that question. Forest Preserve District v. Jirsa, 336 Ill. 624, 168 N. E. 690. Where the Legislature has delegated to a corporation the authority to exercise the power of eminent domain, the corporation has also the right to decide on the necessity for exercising the right, and its decision will be conclusive in the absence of the clear abuse of the right, and courts cannot inquire into the necessity or propriety of its exercise. South Park Com'rs v. Livingston, 344 Ill. 368, 176 N. E. 546;Chicago, North Shore & Milwaukee Railroad Co. v. Title & Trust Co., 328 Ill. 610, 160 N. E. 226;Terre Haute & Peoria Railroad Co. v. Robbins, 247 Ill. 376, 93 N. E. 398;Chicago, Milwaukee & St. Paul Railway Co. v. Franzen, 287 Ill. 346, 122 N. E. 492.

A portion of lots called 5 and 6 are alone involved in these appeals. The south portion, not sought to be taken, contained buildings set among natural forest trees. At the north end are also forest trees, being an extension of the larger growth in the present forest preserve, and the land is used for picnics, parties, boy scouts' camp, and a horse barn where horses are rented by the hour. The south hundred feet sought to be taken, while originally part of a forest, has been shorn of its trees, and is intended to be used as a road. The entire tract sought to be acquired is bounded on the north, east, and west by roads, but there is no road on the south. Evidence was introduced showing the advantage which the acquisition of the strip desired for a road would be to the forest preserve district. The evidence shows that the property condemned was of the character which might legally be acquired for forest preserve purposes, and that there was no abuse of appellee's right of eminent domain by reason of the character of the premises sought to be acquired or in the opening of a road along the south side of the property acquired.

Appellants' main contention with reference to the opening of the road is that the road, if opened, would be utilized by the state as a part of route 53 under the Hundred Million Dollar State Bond Issue Act (Smith-Hurd Rev. St. 1931, c. 121, § 281a et seq.), and that the sole right of the exercise of eminent domain was vested in the Department of Public Works and Buildings for acquiring the lands over which to construct such roads. Appellants cite County of De Witt v. Greene, 320 Ill. 491, 151 N. E. 372, as authority for their contention. In the later case of McKean v. County of Carroll, 324 Ill. 243, 154 N. E. 896, 897, it was held that the State Bond Issue Act should be considered in conjunction with all other statutes in pari materia, and that there was nothing in that act to prevent county boards, in their discretion and when in their judgment the local interest warrants them in so doing, from aiding the Department of Public Works and Buildings by donations of rights of way or money, and in so holding for court said: ‘The only question involved in the Greene Case was the right of the county to acquire by eminent domain land necessary to be taken in the construction of the roads provided for in the Bond Issue Act of 1917, and it was there held that such right was by the act vested solely in the department of public works and buildings, and the several counties of the state did not have such right. The Hurford Case [317 Ill. 203, 148 N. E. 69] does not support appellants' contention, as in that case it was held that the Bond Issue Act of 1917 did not have the effect of taking from cities and villages jurisdiction to improve by special assessment a street connected with the state highway system, and which had been designated as a part of a through route. That case also held that, while for some purposes the act of 1917 was complete in itself, yet it must be construed together with the provisions of the Local Improvement Act, the Cities and Villages Act, the Road and Bridge Act, and other legislation on the subject of highways.’

Village of Glencoe v. Hurford, 317 Ill. 203, 148 N. E. 69 (the Hurford Case above referred to), was an appeal from a final order and judgment of the superior court of Cook county, under the Local Improvement Act, overruling objections of appellant to the entry of such order and judgment after proceedings had, in conformity with the act, upon a petition filed by appellee for the widening and altering of a street in the village of Glencoe called Sheridan road and for the condemnation of certain private property to be taken for use as a public street in such widening and alteration. The street there sought by condemnation to be...