Schreiber v. Chicago & E.R. Co.

• Decision Date: 14 November 1885
• Citation: Schreiber v. Chicago & E.R. Co., 115 Ill. 340, 3 N.E. 427 (Ill. 1885)
• Court: Illinois Supreme Court
• Parties: SCHREIBER and others v. CHICAGO & E. R. CO.

115 Ill. 340

3 N.E. 427

SCHREIBER and others

v.CHICAGO & E. R. CO.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from superior court, Cook county.Edmund Jussen, John Woodbridge, and Francis Lackner, for appellant.

E. Walker, for appellee.

SCHOFIELD, J.

This was a proceeding in the superior court of Cook county to condemn a strip of ground 50 feet in width over a certain block in the city of Chicago, for right of way for a railroad. The fee in the ground sought to be condemned was in Henry W. Kingsbury. While he was a minor, his guardian executed ground leases of the block as follows: From May 1, 1879, to May 1, 1881, to Charles Mears; from May 1, 1881, to May 1, 1882, to Schreiber and Knaak, the appellants; from May 1, 1882, to December 15, 1883, to the same parties. Immediately after the execution of the lease to Mears, he erected on the part of the block of which condemnation is sought certain brick and framed buildings, to enable him to carry on a planing-mill and furniture factory, and he used the buildings for that purpose until the twentieth of January, 1880, when he sold the buildings and his leasehold interest to Schreiber and Knaak, the appellants. After this time, the appellants used the buildings for the same purpose. Neither of the leases contained any provision with reference to the improvements, nor mentioned that there were improvements. Kingsbury became of age on the fifteenth of December, 1883, the day on which the last lease expired. The appellants did not surrender possession to Kingsbury, but remained in possession, and it is stipulated they are now holding over under said leases and paying rent to Kingsbury. The petition was filed on the first of May, 1883, and there was a hearing as to the rights of Kingsbury, and the compensation to be paid to him at the May term of the court, 1884; but the claim of the appellants was not heard until the May term, 1885. The court found, at that time, that the amount awarded to Kingsbury had been paid to him, and that appellee was entitled to possession except as against the claim of appellants. The court also then further found, and so held, that the appellants had no further right of possession as lessees, and that they could not recover for the value of the improvements and the cost of the removal of the machinery and for damages to their business.

Our statute provides that the judge or court shall, upon such report, ( i. e., report of the jury assessing damages,) proceed to adjudge and make such order as to right and justice shall pertain, ordering that petitioner enter upon such property and the use of the same, upon payment of full compensation, as ascertained as aforesaid; and such orders, with evidence of such payment, shall constitute complete justification of the taking of such property. Rev. St. 1874, p. 477, § 10. And so ‘we have held that, until the compensation is paid, there is no right to enter upon the premises; that, until that time, the company seeking condemnation has the right to abandon the location and adopt another.’ St. Louis & S. E. Ry. Co. v. Teters, 68 Ill. 144;Chicago & I. R. Co. v. Hopkins, 90 Ill. 317;Chicago v. Barbian, 80 Ill. 482;South Park Com'rs v. Dunlevy, 91 Ill. 49. We cannot therefore hold, as counsel for appellant contend should be held, on the authority of Muller v. Earle, 35 N. Y. Super. Ct. 472, that the filing of the petition to condemn was such an appropriation of the building that appellants could not lawfully remove them. As we said in Chicago v. Barbian, supra:

‘The rights of the parties are correlative and have a reciprocal relation,-the existence of the one depending on the existence of the other. When the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation; but since no vested right can be acquired in the property, without the owner's consent, until compensation shall be paid, it must follow there can be no vested right in the compensation until after the amount is paid.’

This was quoted with approval in South Park Com'rs v. Dunlevy, supra. Quite clearly, so long as...