Metro. West Side El. R. Co. v. Siegel

• Decision Date: 30 June 1896
• Citation: 44 N.E. 276,161 Ill. 638
• Parties: METROPOLITAN WEST SIDE EL. R. CO. v. SIEGEL et al.1
• Court: Illinois Supreme Court

161 Ill. 638

44 N.E. 276

METROPOLITAN WEST SIDE EL. R. CO.

v.SIEGEL et al.1

Supreme Court of Illinois.

FN1 Rehearing denied June, 1896.

March 30, 1896.

Appeal from Circuit Court, Cook county.

Petition by the Metropolitan West Side Elevated Railroad Company to condemn the leasehold interest of Ferdinand Siegel and others in certain real estate for its use in constructing its elevated railway. From a judgment condemning the property, and awarding damages, the petitioner appeals. Affirmed conditionally.Wilson, Moore & McIlvaine and Collins, Goodrich, Darrow & Vincent, for appellant.

R. Prendergast, Loesch Bros., Kerr & Barr, A. Binswanger, and S. P. Shope, for appellees.

The appellant company having filed its petition to condemn certain leasehold interests of appellees in certain premises, buildings, and improvements, used for manufacturing purposes, for its use in constructing its elevated railway, the court allowed appellees, Siegel Bros., $138,330; C. F. Baum, $13,184; Rubel Bros., $28,000; the Safeguard Account Company, $2,100; and the American Printing Company, $3,500. At the request of the parties, the items which entered into these total amounts were set forth in the following findings of the trial judge: ‘This cause having been submitted to the court for determination without jury, same having been waived by agreement of parties, the court, having heard evidence and arguments, and having examined premises sought to be taken, finds and reports that it has ascertained and determined the just compensation to be paid by said petitioner to the owners of and parties interested in the lots, pieces, and parcels of land and property over which petitioner seeks to acquire a right of way herein, as stated in its petition, and that the same is as follows: To Ferdinand Siegel and Joseph Siegel, composing the firm of F. Siegel & Brothers, as owners of the leasehold estate in the premises described as all of lots fifteen (15) and sixteen (16) in Egan & Morris' subdivision of lots two (2), three (3), and four (4) in block eighty-four (84) in School Section addition to Chicago, in Cook county, Illinois, excepting so much of said lots as may have been taken for the widening and straightening of the South Branch of the Chicago river, together with the buildings and improvements thereon, and their interest in the seventh floor of said building upon said premises, leased by them to C. F. Baum, for the value of said Siegels' leasehold estate and interest aforesaid, the sum of sixty-seven thousand three hundred and thirty dollars ($67,330.00); for loss caused by interruption to said Siegels' business during necessary time consumed in removal, $30,000.00; for rent of other premises during period of removal to same, $7,000; for taking down and setting up of machinery, and for moving same, together with moving said Siegels' stock and fixtures, $6,000.00; for damages to fixtures, and restoring fixtures in new premises, the sum of $4,500; for cost of taking down and putting up, and damages from removing, sprinkling apparatus, by removing from same premises, $1,500; for cost of taking down and putting up, and damages from removing, springkling apparatus, by removing from same premises, $1,500; for salary to be paid to yearly employés during period of removal, and for which no services can be rendered by said employés to said Siegels, during necessary time consumed in removal, $12,000; for damages to goods and merchandise in handling and removing same from present store, $10,000,-total compensation to be paid by petitioner to said Ferdinand Siegel and Joseph Siegel, $138,330.00. To C. F. Baum, occupying the seventh floor of the above-described premises, for taking down and putting up Baum's machinery, the sum of $2,930; for moving Baum's merchandise and machinery, $500; for damages to goods by removal, $1,200; for damages to machinery by taking down and removing, $2,400; for damages to fixtures, $1,450; for rent of other premises during time of removal, $400; for salary to be paid to employés by the year, and for which no services can or will be rendered during removal, $1,600; for leasehold interest, $1,000; for loss to business caused by interruption during the time of moving, $1,700.00,-total compensation to be paid by petitioner to said C. F. Baum, $13,184. To Rubel Bros., for the value of the leasehold estate in the premises described as lot thirteen in Egan & Morris' subdivision of lots two (2), three (3), and four (4) in block eighty-four (84) in School Section addition to Chicago, in county of Cook, state of Illinois, the sum of $23,000; for interruption to business during time of moving, $1,000; for depreciation in fixtures on account of removal, three hundred dollars ($300); for removal of machinery, $400; for salary to yearly employés whose services cannot be utilized during moving, $500; for damages to goods and furniture, $1,800; for moving goods and fixtures, $1,000,-total compensation to be paid by petitioner to said Rubel Bros., $28,000. To Safeguard Account Company, occupying portion of said building in premises of said Rubel Brothers, for interruption to their business during removal, $400; for other damages, $1,700,-total compensation to be paid by petitioner to said Safeguard Account Company, $2,100. To American Printing and Binding Company, occupying portion of said premises of Rubel Brothers, for total compensation by reason of the taking, $3,500. And the court finds from the evidence that all the foregoing sums will, respectively, compensate the respondents for all loss or damage occasioned to them by the taking of said premises for the uses of the petitioner's railroad. To which said finding, and each and every item thereof, and the entry and filing thereof, the petitioner, by its counsel, then and there duly excepted.’

CARTER, J. (after stating the facts).

This is an appeal from a judgment of the circuit court of Cook county, rendered upon the petition of appellant company to condemn for its uses, in constructing its elevated railway, certain leasehold interests of the respective appellees in certain premises and buildings and improvements used by appellees principally for manufacturing purposes. Counsel for the Siegels, in an elaborate argument, insist that the appeal must be dismissed, for the following reasons: First. Because no freehold is involved. Second. Because, from affidavits and other papers which they have filed, it is claimed that it is made to appear that after the judgment was rendered and appeal taken by the company, and after the amounts awarded had been paid to the county treasurer, and a writ of possession had been awarded by the court, application was made by the Siegels to one of the justices of this court for a supersedeas to prevent the execution of the writ of possession; that, upon argument, said justice announced that he would grant the supersedeas; that thereupon an agreement in writing was entered into between the parties that the Siegels should consent to the withholding of the order for a supersedeas, and the appellant company should cause the county treasurer to pay over to appellees the full amount of their judgment, the payment to be made pursuant to the judgment, and without any restriction, condition, limitation whatever, and without any receipt other than one satisfying such judgment; that payment was in fact so made pursuant to the agreement; that no writ of error was prosecuted by the Siegels to reverse the order for the writ of possession; and that appellant entered into possession of the premises.

Considering first the latter reason urged in support of the motion to dismiss, it is a sufficient answer to say that no plea of release of errors has been filed; and, under the well-established practice of this court, we cannotconsider the facts so attempted to be brought to our notice on a motion to dismiss. Morgan v. Ladd, 2 Gilman, 414; Thomas v. Negus, Id. 700; Corwin v. Shoup, 76 Ill. 246;Holt v. Rees, 46 Ill. 181;Kern v. Zink, 55 Ill. 449;Trustees of Schools v. Hihler, 85 Ill. 409;People v. Young, 40 Ill. 87; People v. Supervisors of Logan Co., Id. 87; Austin v. Bainter, Id. 82; Moore v. Williams, 132 Ill. 591, 24 N. E. 617;Crosby v. Kiest, 135 Ill. 458, 26 N. E. 589. Counsel concede the rule, but urge that, as no pleadings other than a petition are required in condemnation proceedings, therefore an exception should be made, and no plea of a release of errors should be required. We see no reason for such distinction. Such a plea is as necessary on appeal in a condemnation proceeding as on any other appeal.

Nor can the motion be sustained on the ground that no freehold is involved in the proceeding. The twelfth section of the act providing for the execise of the right of eminent domain expressly provides that an appeal shall lie from the trial court to this court in all cases, and we have held in several cases that this section has not been repealed by subsequent legislation. Railroad Co. v. Straut, 101 Ill. 653;Peoria & P. U. Ry. Co. v. Peoria & F. Ry. Co., 105 Ill. 110. It is, however, insisted that, when these cases were decided, it was the doctrine of this court that a mere easement cannot in any case constitute a freehold estate,-but that that doctrine was repudiated in Chaplin v. Commissioners, 126 Ill. 264, 18 N. E. 765, and that, in the light of the later ruling, a freehold was in fact involved in the cases cited; and that this court had jurisdiction by virtue of that fact, and not simply because the proceedings were had under the eminent domain statute. Whether the rulings mentioned, that the twelfth section of the eminent domain act has not been repealed by the practice act, should, as contended in the ingenious argument of counsel, be regarded as mere dicta, we do not think it necessary to discuss. Nor do we think any beneficial purpose would be subserved by considering the question as one of first impression, even in the light of the...