The City of Chicago v. Barbian

• Decision Date: 30 September 1875
• Citation: The City of Chicago v. Barbian, 80 Ill. 482, 1875 WL 8783 (Ill. 1875)
• Parties: THE CITY OF CHICAGOv.JOSEPH BARBIAN.
• Court: Illinois Supreme Court

80 Ill. 482

1875 WL 8783 (Ill.)

THE CITY OF CHICAGO

v.JOSEPH BARBIAN.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. T. LYLE DICKEY, and Mr. FRANCIS ADAMS, for the appellant.

Messrs. NISSEN & BARNUM, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This appeal is prosecuted to reverse a judgment of the court below overruling the respondent's demurrer to the petition of the relator.

The mandamus asked for is to compel the levy and collection of a tax for the payment of a sum, ascertained and reported by a jury, and adjudged by a court of competent jurisdiction to be compensation, for damages to be sustained by the relator to certain property, by reason of the widening of North State street, in the city of Chicago.

After the return of the jury, ascertaining and reporting the amount of damages to be sustained to the relator's property, by the contemplated improvement, the respondent, by its attorney, entered its motion for a new trial. Without this motion having been disposed of by the court, the record shows as follows:

“On this, the 3d day of December, A. D. 1873, being one of the days of the December term, A. D. 1873, of the court, comes John A. Huck, one of the defendants herein, as owner, by Barnum & Nissen, his attorneys, and in open court enters a remittitur of the sum of $7000 from the amount of $30,000 awarded by said jury as damages for arched cellars and other improvements on lots 4, 5, 6, 7 and 8, of block 4, of H. O. Stone's sub-division of Astor's addition to Chicago, and original lot 8, of Astor's addition to Chicago. * * * *

And thereupon the city of Chicago, by M. F. Tuley, counsel to the corporation, moves the court for leave to withdraw the motion of plaintiff for a new trial, which motion is granted. And thereupon, on motion of M. F. Tuley, counsel to the corporation, the court doth order and adjudge that the respective owners of the several pieces or parcels of land, improvements and property hereinafter described, receive of the said city of Chicago the respective sums of money awarded by said jury as the just compensation for taking and damaging such land, improvements and property respectively, less the said amount so remitted, as follows, to-wit.”

Then follows a description of the property, after which the record proceeds:

“And it is further ordered, that the city of Chicago pay the said several sums of money, together with the amount of costs of this proceeding (to be taxed), into this court, and that upon such payment being made into this court, the said city of Chicago shall have the right, at any time thereafter, to take possession of or damage the said improvements and property, in respect to which such compensation shall have been so paid or deposited as aforesaid.”

Afterwards, and on the 1st day of June, 1874, the respondent, by an ordinance then adopted, repealed the ordinance under which the proceedings for condemnation were had, and discontinued all further proceedings for making the improvement thereby contemplated.

It is not pretended that any portion of the relator's property has been actually taken or damaged by the respondent for the contemplated improvement, but the contrary is conceded to be the fact.

The only question we find it necessary to examine is, did the relator have a vested right in the order or judgment of the court, before recited, which was not defeated by the respondent discontinuing the contemplated improvements, and failing to take or damage the relator's property, as contemplated by the proceedings for condemnation?

Under the present constitution the relator was entitled to have compensation made to him before his property could be taken or damaged; People ex rel. v. McRoberts, 62 Ill. 38; and, therefore, no judgment or order of court, of binding force, could be entered in advance of the taking or damaging of property, and the making of compensation therefor, conferring upon the applicant for condemnation a present right in the property; all that could be done being to enter a judgment or order vesting the right to take or damage the property as desired, upon the performance of the condition precedent of making the compensation ascertained by the verdict of a jury.

The statute under which this condemnation proceeding was instituted and carried on, art. 9 of chap. 24 of Revised Statutes of 1874, p. 232, pursues this requirement of the constitution, and provides by § 14: “Any final judgment or judgments, rendered by said court, upon any finding or findings of any jury or juries, shall be a lawful and sufficient condemnation of the land or property to be taken upon the payment of the amount of such finding, as hereinafter provided.” * * And, by § 15: “The court, upon proof that said just compensation, so found by the jury, has been paid to the person entitled thereto, or has been deposited as directed by the court, * * * shall enter an order that the city, or village, shall have the right, at any time thereafter, to take possession of or damage the property in respect to which such compensation shall have been so paid or deposited, as aforesaid.”

This would seem to clearly indicate, first, that the judgment to be rendered on the verdict of the jury is conditional, and is to be a sufficient judgment of condemnation only when payment shall be made of the amount of the finding; and, second, that no right, either to take or damage the property, shall vest in the applicant for condemnation, until such payment shall have been made. Until then, the owner is entitled to the...