Sanitary Dist. of Chicago v. Boening

• Decision Date: 17 February 1915
• Docket Number: No. 9759.,9759.
• Parties: SANITARY DIST. OF CHICAGO v. BOENING et al.
• Court: Illinois Supreme Court

267 Ill. 118

107 N.E. 810

SANITARY DIST. OF CHICAGO

v.BOENING et al.

No. 9759.

Supreme Court of Illinois.

Feb. 17, 1915.

Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Condemnation proceeding by the Sanitary District of Chicago against Mary Boening and others. From the judgment, plaintiff appeals. Reversed and remanded.Edmund D. Adcock, of Chicago (P. C. Haley, of Joliet, and William C. Asay, of Chicago, of counsel), for appellant.

Coburn & Bentley, of Chicago, for appellees.

COOKE, J.

This was a proceeding in the circuit court of Cook county brought by the Sanitary District of Chicago to condemn about 5 acres of land, of which Maria Anna Stein (hereafter referred to as the appellee) was the principal owner. She filed a cross-petition, alleging damages to the remainder of the 20-acre tract owned by her. On trial before a jury a verdict was rendered allowing $1,000 an acre for the land taken and $150 an acre damages to the land not taken. Judgment was entered on the verdict, and this appeal followed.

The land was sought to be condemned to be used as a part of the Calumet-Sag channel, connecting the main channel of said sanitary district, near Sag, with Lake Michigan by the way of Calumet river. The sanitary district proposed to construct a lock in the channel at appellee's property and to build certain controlling works at that point; the channel being 31 feet deep and 160 feet wide at the top. The land in question is located in Cook county, about 1 1/2 miles east of the city of Blue Island, about 1 1/2 miles west of the village of Riverdale, about 3 miles north of Harvey, and about half a mile from the city limits of Chicago. It adjoins the Calumet river. There is some controversy in the briefs and record as to whether appellee owned to the bank of the river, and to the center thread of the stream, and was entitled to riparian rights therein. The 20-acre tract, according to the evidence, was black, sandy soil, good for truck gardening, and the greater portion of it under cultivation. The value given by appellant's witnesses varied from $300 to $450 an acre, with no damage to the remainder by the construction of said channel, but rather a benefit therefrom, while the value as given by appellee's witnesses varied for the land taken from $1,000 to $1,500 per acre, and the damage to the remainder from $300 to $750 an acre.

A question is raised in the briefs as to whether appellee is entitled to any riparian rights because she had acquired, by 20 years' adverse possession, ownership of a portion of the river bank. All questins with reference to riparian rights and ownership by adverse possession appear to have been submitted to the jury for decision. This court has repeatedly held that in condemnation cases the jury is impaneled merely to ascertain and report just compensation to the owner of the property sought to be taken or damaged; that no issue of ownership should be presented to the jury, the question of title being preliminary, and to be litigated and determined before the jury is impaneled to assess the amount to be paid to the owner. Chicago & Milwaukee Electric Railroad Co. v. Diver, 213 Ill. 26, 72 N. E. 758;Chicago & Northwestern Railway Co. v. Miller, 233 Ill. 508, 84 N. E. 683;Metropolitan West Side Elevated Railway Co. v. Eschner, 232 Ill. 210, 83 N. E. 809;Chicago & Northwestern Railway Co. v. Mechanics' Institute, 239 Ill. 197, 87 N. E. 933;City of Chicago v. Pick, 251 Ill. 594, 96 N. E. 539;Illinois Central Railroad Co. v. Roskemmer, 264 Ill. 103, 105 N. E. 695. Under these authorities, no evidence as to the question of title to the land itself, or whether appellee owned to the bank of the stream or to the center thread thereof, or had riparian rights therein, should have been submitted to the jury for decision. If these were the only questions involved, we might not be disposed to reverse because of the admission of this evidence, as there may be some question whether the record is in such shape that appellant can now raise these points. As the case must be reversed for other reasons, we have discussed the law bearing on these matters.

Counsel for appellant insist that the verdict is contrary to the decided weight of the evidence. As the case must be tried again, we do not find it necessary to consider that question.

Appellant further insists that the court erred in admitting, on behalf of appellee, evidence as to certain sales. Evidence of voluntary sales of similar lands in the vicinity, made at or about the time of the taking, is admissible to aid in reaching the correct value of the land sought to be condemned. The degree of similarity which must exist between the property concerning which proof is offered and the property taken, and the nearness with respect to time and distance, are not governed by any fixed rules. Such questions must, of necessity, rest largely within the sound discretion of the trial judge. Aledo Terminal Railway Co. v. Butler, 246 Ill. 406, 92 N. E. 909; 2 Lewis on Eminent Domain (3d Ed.) § 662. The price paid by the owner 7 years before has been held by this court as inadmissible (Lanquist v. City of Chicago, 200 Ill. 69, 65 N. E. 681) and the refusal to admit evidence of sales 3 and 6 years before was held not reversible error under the facts of the case. St. Louis & Illinois Belt Railway Co. v. Guswelle, 236 Ill. 214, 86 N. E. 230. If there be no actual sales of similar land in the vicinity, evidence of bona fide offers may be admitted. Sherlock v. Chicago, Burlington & Quincy Railroad Co., 130 Ill. 403, 22 N. E. 844;City of Chicago v. Lehmann, 262 Ill. 468, 104 N. E. 829; Illinois Central Railroad Co. v. Roskemmer, supra. To render evidence of sales competent they must be for money, and not, in whole or in part, by way of exchange, and should be voluntary and not forced. 2 Lewis on Eminent Domain (3d Ed.) § 662; Lanquist v. City of Chicago, supra. Under these authorities we think the court erred in admitting, on behalf of appellee, the Linderman and Fischer sales. The property sought to be condemned was vacant. The land in both of those sales was improved with buildings, which were included in the sales. We are forced to conclude, also, as to the Linderman sale, that in return for a part of the consideration the owner assisted in building a switch track. The Fischer sale consisted of two blocks of land sold together. After the sale, it appears from the evidence, to accommodate the seller, the purchaser agreed to divide arbitrarily the price between the two blocks. Moreover, we think the evidence shows quite conclusively that neither of these pieces of property was situated so similarly to the one here in question as to justify the admission of evidence concerning it.

Counsel for appellant also objects to the admission of a sale testified to by witness Quade, insisting that his evidence shows that he was interested in the sale only to the extent of his commission, and was not present and took no actual part in it; that therefore all he testified to was hearsay. His direct testimony may bear this construction. Counsel, however, did not cross-examine him as to that point. Of course, a witness must have actual, and not hearsay, knowledge as to a sale, in order to make such evidence competent. O'Hare v. Chicago, Madison & Northern Railroad Co., 139 Ill. 151, 28 N. E. 923; 2 Lewis on Eminent Domain (3d Ed.) § 662. In view of the present state of the record as to this evidence, we do not consider the ruling as to its admission reversible error.

Appellant asked the court to give an instruction with reference to damages to the remainder of the property not taken. The court, however, modified the instruction asked by inserting a clause. The instruction as given, with the inserted part in italics, is as follows:

‘The jury are...