Tedens v. Sanitary Dist. of Chicago

• Decision Date: 16 January 1894
• Citation: 36 N.E. 1033,149 Ill. 87
• Parties: TEDENS et al. v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

149 Ill. 87

36 N.E. 1033

TEDENS et al.

v.SANITARY DIST. OF CHICAGO.¹

Supreme Court of Illinois.

Jan. 16, 1894.²

Appeal from circuit court, Du Page county; Henry B. Willis, Judge.

Condemnation proceedings by the sanitary district of Chicago against John H. Tedens and others. There was judgment of condemnation. Defendants appeal. Reversed.

Ellis S. Chesbrough, Orrin N. Carter, George E. Dawson, Comstock & Hess, James Maher, and Hoyne, Follansbee & O'Connor, for appellants.

Elbert H. Gary, J. F. Snyder, and William D. Barge, for appellee.

CRAIG, J.

This was a proceeding instituted by the sanitary district of Chicago to condemn certain lands of appellants constituting a part of Sag island. The island is a strip of land extending northeast and southwest between the channel of the Des Plaines river on the north and west and the Illinois and Michigan canal on the south and east, located about two miles northeast of the village of Lamont, in Cook county. The strip of land was over two miles long, and averaged about 1,400 feet wide. The petitioner sought to condemn the entire tract. The petition was presented to one of the judges of the twelfth judicial circuit in vacation on July 6, 1892, and the judge ordered that the cause be set down for trial on August 18, 1893. On the day the cause was set for trial, and before any witnesses had been examined, one of the appellants, by his attorneys, filed a paper, and, among other things, alleged therein as follows: ‘This defendant further objects to said petitioner taking the whole strip of 1,250 feet in its average least width, for the reason that the amount is excessive, and is not contemplated in the said act, and is not necessary for the construction of the said channel, but is wholly excessive, and an injury to the defendant. This defendant, further objecting, says the plan of the line of the proposed channel is not disclosed by the petition filed in this cause. So this defendant says that for these and many other reasons, and for the many imperfections appearing upon the face of the petition filed herein, he denies that the petitioner has the right to take any or all of the land described by the petitioner, as asked in the petition.’ The claim was also made by counsel for the appellants before the court that the amount of land attempted to be condemned was grossly excessive, and a motion was made for an order requiring the production in court of the plans and profiles. The application was, however, resisted by counsel for the petitioner, and denied by the court.

The seventh section of the act of May 29, 1889, under which the sanitary district was organized, and under which it sought to condemn the property involved, provides: ‘The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner.’ The sanitary district, under the power conferred upon it by the legislature, when proceeding to condemn lands for the purposes for which it was organized, must of necessity, to a modified extent, be allowed to determine for itself the quantity to be taken to be used for the ditch or channel. But as held in Smith v. Railroad Co., 105 Ill. 515, the right is subordinate to all statutory and constitutional restrictions, and also the further limitation that the courts of the state which are authorized to entertain applications of this character are clothed with ample power to prevent any abuses of this right by such corporations. While the district, by the act under which it was organized, has ample power to condemn such a quantity of land as may reasonably be necessary to be taken and used to enable it to carry out the object and purpose contemplated by the legislature in passing the act, it has no right to abuse the power conferred, or to take more lands than are reasonably necessary to be used in the construction and maintenance of the drains and outlets. As appears from the petition, the lands proposed to be taken embraced a strip over a quarter of a mile wide. Whether it was necessary that this amount of land should be taken, or whether the condemnation of so large a tract was an abuse of power, was a question the defendants had the right to submit to the court for determination before the jury was called upon to determine the amount that should be paid for the lands taken. This court is fully committed to this rule. In Chicago & N. W. Ry. Co. v. Chicago & E. R. Co., 112 Ill. 589, where a similar question arose, it is said: ‘This motion was in the nature of an application for a bill of particulars, which is demandable in all kinds of actions and proceedings where, by reason of the generality of the claim or charge, the adverse party is unable to know with reasonable certainty what he is required to meet. 1 Tidd. Pr. (1st Am. Ed.) 334-336. The rule applies even to criminal proceedings, as well as civil. Wharton, in his work on Criminal Law (volume 3, § 3156), says: ‘Whenever the indictment is so general as to give the defendantinadequate notice of the charge he is expected to meet, the court will, on his application, require the prosecution to furnish him a bill of particulars of the evidence intended to be relied on.’ The practice in this respect is founded on the clearest principles of justice, and should not be departed from in any case where the circumstances require an application of the principle. The principle, as applicable to condemnation proceedings, was first recognized by this court in Railroad Co. v. Kidder, 21 Ill. 131, which is cited with approval in Chicago & A. R. Co. v. Joliet, L. & A. Ry. Co., 105 Ill. 388. It is true the direct question whether a defendant may, as a matter of right, demand specifications of the character of the improvement proposed to be made, was not presented in either of these cases; but they do hold that the petitioner has the right to introduce them on his own motion, and, if this may be done, a fortiori the defendant has the right to demand them where they are essential to a proper understanding of the case. Other cases holding the same rule might be cited, but the doctrine is so well settled that the citation of other cases is not deemed necessary. The land sought to be condemned was for the right of way of the main channel and its necessary adjuncts for the proposed work; but, without the plans and specifications here, could the court determine what was necessary, or what was really required? If it was necessary that the entire strip should be taken, had the plans and specifications been produced, the court, from their inspection, and from such other evidence as might have been submitted on the question, might without any difficulty determine the question; but, in the absence of the plans, the court had no data before it from which it could determine what amount of land was necessary or needed for the construction of the work.

But it is said the motion of defendants was not made in apt time, and for that reason it was...