Ligare v. Chicago, M.&N. Ry. Co.

• Decision Date: 28 March 1896
• Court: Illinois Supreme Court
• Parties: LIGARE v. CHICAGO, M. & N. RY. CO.

160 Ill. 530

43 N.E. 734

LIGARE

v.CHICAGO, M. & N. RY. CO.

Supreme Court of Illinois.

March 28, 1896.

Appeal from appellate court, First district.

Petition by the Chicago, Madison & Northern Railway Company for a return of a certificate of deposit deposited with the clerk of the court. From an order for petitioner, which was affirmed by the appellate court (50 Ill. App. 84), George G. Ligare appeals. Affirmed.

C. C. Bonney and L. M. Paine, for appellant.

E. H. Gary, for appellee.

PHILLIPS, J.

This was a petition by the Chicago, Madison & Northern Railway Company, in the superior court of Cook county, for an order requiring the clerk of that court to return to the Merchants' Loan & Trust Company a certificate of deposit of $35,000 by it placed and deposited with said clerk, on behalf of the petitioner, pursuant to an order theretofore entered in a certain condemnation proceeding by the city of Chicago against George G. Ligare, appellant here. The condemnation case was taken by Ligare to this court, on appeal, where the judgment of the court below was reversed, without a remandment of the case, on the ground that the ordinance of the city providing for the laying out of the street, etc., was ultra vires, and the condemnation proceeding unauthorized and unlawful. Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934. In the condemnation proceeding the compensation to be awarded to the landowner, Ligare, for property taken and damaged, was ascertained. And the petitioner, notwithstanding the appeal of Ligare from the judgment in that case, desiring to enter upon and take possession of the land condemned, appellee the Chicago, Madison & Northern Railway Company, being interested in such condemnation by and under the ordinance of the city, was required by the judgment and order of the superior court, in which such condemnation proceedings were had, to deposit, for the use of the parties entitled thereto, the sum of $35,000, with the Merchants' Loan & Trust Company, which was done, and thereupon said loan and trust company gave to the clerk of said court a certificate of such deposit. Appellant was notified of the petition to have said certificate of deposit returned to the loan and trust company for the benefit of appellee, waived service of process, and moved to strike the petition from the files because filed without leave. This motion was overruled, and appellant excepted to the ruling. Appellant then moved to dismiss the petition, assigning various reasons therefor. This motion was also overruled by the court, and appellant excepted. Protesting that the petition should be dismissed, appellant next demurred to the petition, assigning numerous causes of demurrer. The demurrer was overruled, and appellant likewise saved his exception; and, he electing to stand by his demurrer, the court proceeded to hear evidence, and ordered a return of the $35,000 certificate of deposit to the Merchants' Loan & Trust Company, and payment by it to appellee, as prayed in the petition. To reverse this order, Ligare appealed to the appellate court, where the order was confirmed, and he brings the case to this court by his further appeal.

The deposit of the $35,000 was in strict compliance with the judgment of the superior court in the condemnation proceeding, and was for the purpose of securing payment of the compensation therein awarded to appellant, and for no other purpose. The landowner having appealed from the judgment of the court awarding him compensation, appellee would, by virtue of the statute of eminent domain (sections 13, 14, c. 47, Rev. St.), enter upon the premises condemned, by complying with its provisions. It will, in the view we take of the case, be unnecessary to determine whether the deposit with the Merchants' Loan & Trust Company, although in compliance with the order of the court, would give such right to enter, or not, for the reason that upon the final determination of the cause no compensation whatever is awarded to appellant. And the deposit, under the statutes, standing simply as security for payment of the compensation to be made to the landowner for his land taken or damaged, he would only be entitled to the amount of compensation awarded in that proceeding. The effect of the reversal of the judgment in the original condemnation proceeding was, practically, to put the parties in the same condition as though no such proceedings had been instituted. Upon the reversal of the judgment of condemnation, and the refusal of this court to remand the cause, for the reason that no right of condemnation existed, the power of the superior court over the matter was exhausted. The proceedings in condemnation are purely statutory, and, the deposit having been made under a void order, the money remained that of the depositor. The court was without power to make any further or additional order in that case. But, an officer of that court being in possession of the certificate evidencing the deposit, the court would have power over its officer to compel a return of it to the proper owner or custodian, the right to the possession of it not having been interfered with by any supplementary proceeding.

It is, however, insisted that under the order of the court, and in pursuance of the statute before referred to, the city of Chicago, appellee, was authorized to, and did in fact enter upon the land of appellant, and that there was therefore a taking and actual damaging of appellant's land. It is highly probable that there should be legislation protecting the landowner in cases of this sort. It is undoubtedly true that the owner of land may suffer great damages where his land is thus entered upon, under a form of law, without any adequate fund having been provided for payment of such damages to his private property. The use is a public one, and the proceedings are at least under the forms of the law, and the judgment apparently valid and conclusive. But if, in such cases, the proceeding is void, if no right of condemnation exists in the state, municipality, or public corporation authorized by law to condemn private property for the public use, there is no provision by which the landowner can be protected against the temporary taking and damaging of his property pending the appeal authorized by the statute. The statute provides, if an appeal be taken by the landowner, that upon compliance with its provisions the land may nevertheless be entered upon pending the appeal. The deposit of the money awarded as compensation, and the bond required to be filed by the authority condemning, stand as security for the compensation that may finally be awarded to the landowner for his property taken and damaged. And in all ordinary proceedings,it is apparent, ample provision is made, by the deposit of the compensation awarded (which the landowner may, at any time pending the appeal, take), and by the bond required to be filed, for payment of the just compensation which has or may be awarded. If this was not so, the statute would be in conflict with the constitution; and therefore it would be held that the right of entry upon the land, and damaging it, pending the appeal, did not exist. It is the well-settled doctrine that compensation must be ascertained and paid before entry upon the land, or damaging it, for the proposed public use, or a fund must be provided to which the landowner must apply for payment. Insurance Co. v. Heiss, 141 Ill. 57, 31 N. E. 138, and cases cited. If the authority exists to require condemnation to be made, it is apparent that the statute provides an adequate fund that may be reached by the owner through the ordinary medium of courts of justice, and the payment is made certain. It is said in the case cited: ‘It has been uniformly held in this country that the compensation need not be paid before the taking. It is sufficient that provision be made for compensation afterwards, provided the payment be made certain.’ But it must be apparent, we think, that this can have no application where there is no authority of law for condemning the property of the citizen. It was held in the Ligare Case, supra, that the proceedings were absolutely void, from the beginning. That being so, the proceedings conferred no authority upon the city, its officers, or any one else, to enter upon and take the land of appellant, or to damage it for any use whatever. If entry was made upon the land of appellant, and damage done, the persons so entering were trespassers, and liable as if no condemnation proceedings had been commenced.

It is also urged that it is grossly inequitable to permit appellee, or the city of Chicago, to withdraw the funds deposited under the void order of the court, after having entered upon the land, and damaged it and other property, in contemplation of the proposed public use, and that the funds should stand as security for payment of the damages thereby occasioned to appellant's property. Without extending the discussion, it is sufficient to say that the condemnation proceeding is in no essential particular equitable in its character. The deposit of the money, and the condition upon which it was deposited, were solely in pursuance of the void order of the court. As already seen, under the statute the deposit is to be made only for the payment of compensation awarded to the landowner; and it follows, necessarily, that the only lawful purpose for which the deposit could be required, or to which the money could be appropriated, was the payment of compensation which has been duly awarded to him. In the event that no compensation is awarded, the purpose and object for which the money was deposited cease, and the court has no authority, in that proceeding, to hold and to apply it to or for any other purpose. This court having found, in the Ligare Case, that no right of condemnation existed, the proper order reversing the judgment of the court below, without remandment, was entered, and it necessarily...