Moll v. Sanitary Dist. of Chicago

• Decision Date: 23 October 1907
• Parties: MOLL v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

228 Ill. 633

81 N.E. 1147

MOLL

v.SANITARY DIST. OF CHICAGO. ^*

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Appellate Court, First District, on Error to Circuit Court, Cook County; R. W. Clifford, Judge.

Action by Carl Moll against the Sanitary District of Chicago. A judgment sustaining a demurrer to the declaration was affirmed by the Appellate Court on writ of error sued out by Ida Frida Moll, executrix for plaintiff, who died after judgment in the circuit court, and the executrix brings error. Reversed and remanded.Ellis R. Chesbrough, for plaintiff in error.

John C. Williams (A. G. Anderson, of counsel), for defendant in error.

Carl Moll brought this action against the defendant in error in the circuit court of Cook county. A demurrer was sustained to the declaration, and a judgment rendered in favor of defendant, which, upon a writ of error sued out by his executrix, has been affirmed by the Appellate Court. The executrix has sued out this writ of error to reverse the judgment of the Appellate Court. The first count of the declaration alleges that the defendant, on July 14, 1892, began proceedings in the circuit court of Du Page county for the condemnation of certain lands of the plaintiff, which resulted in a judgment giving the defendant the right to the possession of said lands upon depositing for the benefit of the plaintiff $6,000, the damages awarded by the jury; that the defendant deposited said sum, and on October 1, 1892, took and still retains possession of said land; that upon the appeal of plaintiff the judgment was reversed, and on another trial, after a continuance as to a part of said lands, plaintiff's damages for the remaining part were assessed at $20,312.80-no amendment having been made to the petition, and no cross-petition having been filed, and the evidence having been confined to the value of the property on July 14, 1892. On September 29, 1905, the court entered judgment in favor of the plaintiff for the amount of the verdict, with interest from its date only, and the plaintiff moved for the allowance of interest from the date of the former judgment, but the court denied the motion. The second count alleges the same condemnation proceedings as in the first count, and a trial in regard to the land as to which the continuance was had, and that plaintiff's damages were assessed at $5,250. The proceedings alleged in this count and the first are identical, except that no motion is alleged in this count to have been made for the allowance of interest. The plaintiff claims $2,789.56 under the first count and $778.75 under the second. The third count claims $3,568.31, alleging that the defendant, on October 1, 1892, took possession of all the before-described property of the plaintiff, and damaged the same to the extent of its total value by digging a channel through the center thereof and covering the remainder with débris of broken rock taken from the channel.

DUNN, J. (after stating the facts as above).

The plaintiff was deprived of his property, without any compensation for the use thereof, from the time the defendant took possession until the final award fixing his damages. He could not accept the $6,000 deposited without waiving his appeal. If his appeal had been unsuccessful, he would not have been entitled to interest; for he ought to have accepted the amount awarded. But the judgment in his favor on the appeal is conclusive of his right to reject the tender, and it is clear that he was entitled to interest upon the full value of the property taken by the defendant from the time the latter took possession. Beveridge v. West Chicago Park Com'rs, 100 Ill. 75;Cook v. South Park Com'rs, 61 Ill. 115;Phillips v. South Park Com'rs, 119 Ill. 626, 10 N. E. 230.

But the claim for interest ought to have been submitted to the juries impaneled to fix the plaintiff's compensation and included in their award. The value of the property is to be fixed as of the date of filing the petition. Sanitary District v. Chapin, 226 Ill. 499, 80 N. E. 1017;Cook v. South Park Com'rs, 61 Ill. 115;South Park Com'rs v. Dunlevy, 91 Ill. 49.The proceeding is a summary one, and the statute contemplates a speedy trial, authorizing the proceedings to be carried on in vacation as well as term time, thus obviating the inconvenience and loss often arising from the ordinary delays of litigation conducted only in term time. Booker v. Venice & Carondelet Railway Co., 101 Ill. 333;Leibengut v. Louisville, New Albany & St. Louis Railway Co., 103 Ill. 431; Sanitary District v. Chapin, supra. In this case an unusual delay occurred on account of the appeal. The trial occurred with reasonable promptness, and if the damages had then been properly assessed and paid the plaintiff would have received promptly just compensation. But in order to secure a fair and legal assessment he was compelled to appeal, and in the meantime the petitioner took possession of his property and held it for three years. Thus,...