South Park Com'rs v. Livingston

• Decision Date: 03 June 1931
• Docket Number: No. 20322.,20322.
• Citation: 176 N.E. 546,344 Ill. 368
• Parties: SOUTH PARK COM'RS v. LIVINGSTON et al.
• Court: Illinois Supreme Court

344 Ill. 368

176 N.E. 546

SOUTH PARK COM'RS

v.LIVINGSTON et al.

No. 20322.

Supreme Court of Illinois.

April 23, 1931.

As Modified on Denial of Rehearing June 3, 1931.

Commissioner's Opinion.

Condemnation proceedings by the South Park Commissioners opposed by Milton L. Livingston, Simpson L. Simmons, and others. From the judgment, defendant last named appeals.

Affirmed.Appeal from Circuit Court, Cook County; Craig A. Hood, Judge.

Leonard A. Scholl, of Chicago (Daniel S. Wentworth, Henry O. Nickel, Ross G. McClure, and Alfred Newton, all of Chicago, of counsel), for appellant.

Schnackenberg & Hansen, of Chicago (Elmer J. Schnackenberg, of Chicago, of counsel), for appellee.

PARTLOW, C.

On October 21, 1927, appellee, the South Park Commissioners, under an ordinance passed September 21, 1927, filed its petition in the circuit court of Cook county to condemn for park purposes 6.44 acres of land, including the property at 3735 Vernon avenue, in Chicago, the legal title to which was in Peter R. Boylan. The property was on the east side of the street between Thirty-Seventh street and Thirty-Eighth street. The lot was 35 feet wide and was improved with a two-story brick duplex flat-building. The petition was for the condemnation of the north half of the lot and the north half of the building. The building contained a basement flat and first and second floor flats, each consisting of a kitchen, two bedrooms, and a dining room. On September 12, 1927, a written offer for the property was made by appellee to Boylan and refused. Prior to that date Boylan entered into a contract for the sale of the north half of the property, and Simpson L. Simmons, who then owned the contract was in possession at the time the petition was filed. On December 25, 1928, before the trial, Boylan died and his seven heirs were made parties defendant. The defendants filed objections to the petition, the third, fifth, and eighth of which were stricken from the record on motion of appellee. There was a trial by jury on March 4, 1930, there was a verdict and judgment for $4,900, and Simmons has appealed to this court.

It is insisted that the court improperly struck from the record objections 3, 5, and 8. The third objection was that appellee was without money or means to pay for the property and had made no appropriation therefor. The fifth objection was that appellee was without the necessary funds and had made no appropriation or levy to develop the property for park purposes or for any purpose within its charter powers. The eighth objection was that appellee had never adopted any plan for the use of the land nor made an appropriation for it, and that the court was unable to pass upon the sufficiency of the money available for the construction of the work. In Village of Depue v. Banschbach, 273 Ill. 574, 113 N. E. 156, it was held that the fact that the petitioner in a proceeding to condemn land for a park had not levied a tax or otherwise provided the funds to pay for the land was not a valid objection to the proceeding, as the only concern of the defendant was that funds be provided by the time the petitioner was allowed by the judgment to take the land, and that the defendant was not required to give credit to the municipality or part with his land until he was paid in full the amount awarded him by the judgment of the court, citing City of Chicago v. Sanitary District, 272 Ill. 37, 111 N. E. 491, where it was held that it was immaterial that the petitioner was not to furnish the money to pay for the land condemned but had an arrangement whereby a third person was to advance the money. A copy of the ordinance for the improvement was attached to the petition. It recited that appellee, for the purpose of enlarging the park system under its control by acquiring additional lands within the district and creating an additional park, had selected the land in question in accordance with the provisions of the statute and the president of appellee was authorized to institute condemnation proceedings. In the case of Chicago & Western Indiana Railroad Co. v. Heidenreich, 254 Ill. 231, 98 N. E. 567, Ann. Cas. 1913C, 266, the defendant sought to require the plaintiff to exhibit its plans showing what was to be done with the property condemned. Plaintiff replied that it had no plans; that the terminal facilities at its station were insufficient; that the station was used by seven or more railroad companies and that the property was to be used for a terminal station. It was held that the petition was properly filed and the property was needed for the uses specified. In Alton & Southern Railroad v. Vandalia Railroad Co., 271 Ill. 558, 111 N. E. 531, it was held that plans and specifications are not indispensable in condemnation proceedings but may be required if there is any necessity therefor. Where the Legislature has delegated authority to exercise the right of eminent domain to a corporation, the corporation has the authority to decide on the necessity for exercising the right, and its discretion is conclusive in the absence of a clear abuse of the right. Chicago North Shore & Milwaukee Railroad Co. v. Chicago Title & Trust Co., 328 Ill. 610, 160 N. E. 226;Inter-State Water Co. v. Adkins, 327 Ill. 356, 158 N. E. 685;City of Winchester v. Ring, 312 Ill. 544, 144 N. E. 333, 36 A. L. R. 520. The court was not in error in striking objections 3, 5, and 8 from the record.

The first objection filed to the petition was that all parties in interest were not made parties defendant. The second objection was that no legal offer of purchase had been made to the respective parties in interest. It was stipulated that Boylan was the owner in fee simple at the time the petition was filed and that appellant held a contract of purchase; that Boylan died a year after the filing of the petition and before the trial, and his heirs were made parties defendant. In St. Louis & Cairo Railroad Co. v. Postal Telegraph Co., 173 Ill. 508, on page 515, 51 N. E. 382, 384, it was said: “An omission of any proper party will not invalidate the proceedings as against such persons as are made parties. The only consequence is that, as against the omitted party, the condemnation is nugatory.' 7 Enc. Pl. & Prac. p. 504. The mortgagees, not being made parties, would be left unaffected as to their interests by the judgment of condemnation. The condemnation is nugatory as to them, but not invalid as to the appellants. A party will not be permitted in a court of review to take advantage of an error that does not injuriously affect himself or his interests.' Appellant was a party defendant to the petition, and he is in no position to complain that other persons were not made defendants.

Under section 2 of the Eminent Domain Act (Smith-Hurd Rev. St. 1929, c. 47, § 2), one of the conditions under which condemnation may be instituted is that the compensation to be paid for the property taken can not be agreed upon by the parties interested. It was stipulated that on September 12, 1927, Boylan was the owner in fee subject to the contract to Simmons, who was in possession, and that on that date the general attorney for appellee sent a letter to Boylan making an offer of purchase, which was refused by Boylan. It is insisted by appellant that no attempt at settlement was made with him, therefore the condemnation proceedings cannot be sustained. In Thomas v. St. Louis, Belleville & Southern Railway Co., 164 Ill. 634, 46 N. E. 8, the petition alleged a failure to agree with the owner, who had the legal title. It was insisted that the petition was defective because it did not allege an attempt to agree with a party who held a vendor's lien. It was held that in case of an agreement of settlement the holder of the vendor's lien might have been an essential party but that an agreement with him could not confer title or obviate the necessity of a condemnation, and that on account of the failure to agree with the only persons who could convey title there was an absolute impossibility of obtaining the property by agreement. In Public Service Co. v. Recktenwald, 290 Ill. 314, 125 N. E. 271, 8 A. L. R. 466, the petitioner sought to acquire land owned by two persons and addressed a letter to only one of them, who refused to sell, and it was held that the offer, in substance, was to the owners of the tract, but, in any view of the matter, if the petitioner could not agree with one of the owners for an undivided interest no further attempt to negotiate was necessary. In Mercer County v. Wolff, 237 Ill. 74, 86 N. E. 708, it was held that where one of the owners of land sought for a jail site had declined to accept the terms offered by the county there was a failure to agree. In Chicago North Shore & Milwaukee Railroad Co. v. Chicago Title & Trust Co., supra, it was held that where it is evident from the conduct and acts of the parties that they cannot agree on compensation the judgment will not be reversed because no direct evidence was offered to show inability to agree. The heirs of Boylan took their title subject to the pending suit, and if the suit was properly instituted appellee had a right to have it proceed to final judgment regardless of the death of Boylan. On account of the offer having been made to Boylan, the holder of the fee-simple title, and his refusal to accept, there was a compliancewith the statute and condemnation proceedings were properly instituted.

Appellant insists that the court erroneously, of its own motion, without a request from either party, directed the jury to view the premises, in violation of section 9 of the Eminent Domain Act (Smith-Hurd Rev. St. 1929, c. 47, § 9), which provides that the jury shall at the request of either party go upon the land and examine the same. This contention is not sustained by the evidence. In the examination of the jurors, counsel for appellee repeatedly asked questions based upon the assumption that the jury were to view the premises....