Pittsburgh v. Sanitary Dist. of Chicago

• Decision Date: 14 October 1905
• Citation: 75 N.E. 892,218 Ill. 286
• Court: Illinois Supreme Court
• Parties: PITTSBURGH, FT. W. & C. RY. CO. v. SANITARY DIST. OF CHICAGO.

218 Ill. 286

75 N.E. 892

PITTSBURGH, FT. W. & C. RY. CO.

v.SANITARY DIST. OF CHICAGO.

Supreme Court of Illinois.

Oct. 14, 1905.

Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Condemnation proceedings by the Sanitary District of Chicago against the Pittsburgh, Ft. Wayne & Chicago Railway Company. From the judgment, defendant appeals. Affirmed.

Rehearing denied December 12, 1905.Loesch Bros. & Howell, Herrick, Allen, Boyeson & Martin, and Wilson, Moore & McIlvaine, for appellant.

James Todd and Eddy, Haley & Whetten (P. C. Haley, and Dolph, Buell & Abbey, of counsel), for appellee.

HAND, J.

This was a petition filed in the circuit court of Cook county by the Sanitary District of Chicago to condemn a narrow strip of land situated upon the west bank of the South Branch of the Chicago river, between the south line of Madison and the north line of Van Buren streets, in the city of Chicago, the east line of said strip being the center line of said river, to enable it to deepen, widen, and improve said river from Lake to Robey street, and thereby increase the flow of water from Lake Michigan through said river into its main artificial channel, which connects with the said South Branch at Robey street and extends to Lockport, without increasing the current in said river to a greater velocity than that provided for by the Secretary of War in the permit issued to said sanitary district by him, permitting it to divert a portion of the waters of Lake Michigan through said South Branch into its main channel. The appellants filed a motion to dismiss the petition on the ground of want of jurisdiction in the court to hear and determine the cause. The motion was overruled by the court, and a jury was impaneled to assess the appellants' compensation. The jury returned into court their verdict fixing the amount of appellants' compensation at $1,389,940, upon which verdict a judgment was rendered; and the appellants having preserved, by proper exceptions, their objections to the ruling of the court in denying their motion to dismiss the petition for want of jurisdiction, an appeal has been prosecuted by them to this court to review the action of the trial court in holding that the sanitary district had the right to condemn, for the purposes aforesaid, said strip of land.

It is first contended the petition is insufficient in averment to give the court jurisdiction. The petition averred that the Sanitary District of Chicago was duly organized under ‘An act to create sanitary districts and to remove obstructions in the Desplaines and Illinois rivers' (Laws 1889, p. 125), approved May 29, 1889, and in force July 1, 1889, and set out the powers conferred upon it as a sanitary district by virtue of the statute under which it was organized, and averred that it had power to condemn land to carry into effect the purpose for which it was organized. It also averred that in order to carry out the purpose of its organization and make effective the main channel by it constructed, it was necessary that it deepen, widen and improve the Chicago river, in order that it might comply with the statute of the state of Illinois and obtain a minimum flow through its channel of 300,000 cubic feet of water per minute, and such additional quantities of water as from time to time the population of the sanitary district might require, in order that the sewage of said district might be diluted in the manner and degree required by law. It also averred that its board of trustees, on June 19, 1901, had adopted a plan for the deepening and widening of the Chicago river between Lake street and Robey street, in the city of Chicago, and that said trustees, on the 20th day of May, 1903, passed an ordinance by the terms of which the said district had laid out and established its right for the deepening, widening and improving of said river between the south line of Madison and the north line of Van Buren streets in said city, and that in order to accomplish such purpose and make such improvement it was necessary that the petitioner acquire the strip of land sought to be condemned, which strip was described by metes and bounds. It was also averred that the sanitary district had obtained the permission of the Secretary of War to make the modifications, changes, and alterations in the Chicago river contemplated and provided for in the plan and ordinance referred to in the petition. The petition named a large number of persons and corporations, including the appellants, who it was averred had, or claimed to have, some interest in the premises sought to be condemned, and that the petitioner had been unable to agree with said persons and corporations as to the compensation to be paid them by it for said property. The persons and corporations who were named in the petition as interested in said premises, with the exception of the state of Illinois, were made defendants thereto, and the petition prayed that process might issue against said defendants, and that a jury might be impaneled to determine the just compensation to be paid the several defendants, occasioned by the taking of said strip of land, and for general relief. The sanitary drainage act provides, in express terms, that where it is necessary for a district organized under such act to acquire property by condemnation the proceeding shall be carried on under the eminent domain act; and section 2 of the eminent domain act requires the petition to state (1) the authority of the petitioner to exercise the right of eminent domain, (2) the purpose for which the property is sought to be taken, (3) a description of the property sought to be taken, and (4) the names of all parties interested in the property, as owners or otherwise, if known, if not known the fact should be stated, and to conclude with a prayer that the compensation to be paid the owner or owners be assessed. We are unable to see wherein the petition, upon its face, fails to comply with the statute and why it was not sufficient to give the court jurisdiction of the case. In Suver v. Chicago, Santa Fé & California Railway Co., 123 Ill. 293, 14 N. E. 12, it was held that it is not necessary to state in the petition the particular manner in which the land is to be used, as that may be shown by the plans and specifications of the petitioner. The court did not err in declining to dismiss the proceeding for want of a sufficient petition.

It is next contended the petition should have been dismissed because, as urged by the appellants, it was not necessary for the petitioner to take the land sought to be taken, as the object of its organization could be effected without the taking of said strip of land; and the appellants sought to show, upon a motion to dismiss, by affidavits which the court refused to consider but struck from the files, that the petitioner could obtain the flow of water required to effect the object of its organization by taking a strip of land from the river bank opposite the land of the appellants, or by deepening, instead of widening, the river at the point where appellants' land was situated, or by constructing by-passes beneath the surface of appellants' land sought to be taken, to accommodate the flow of water required by the petitioner to effect the object of its organization. The question of whether it was necessary that the petitioner acquire title to the strip of land sought to be taken in order that the object of its organization might be effected was a legislative and not a judicial question, and was one to be determined by the trustees of the sanitary district and not by the court in which the condemnation proceeding was pending. The court in which such a petition is pending may rightfully determine whether the petitioner has the power to exercise the right of eminent domain, whether the property is subject to the right of eminent domain and is being taken for a public use,...