The South Park Commissioners v. Dunlevy

• Citation: 1878 WL 10228,91 Ill. 49
• Parties: THE SOUTH PARK COMMISSIONERSv.FRANCIS DUNLEVY et al.
• Decision Date: 30 September 1878
• Court: Supreme Court of Illinois

91 Ill. 49

1878 WL 10228 (Ill.)

THE SOUTH PARK COMMISSIONERS

v.FRANCIS DUNLEVY et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding.

Mr. RICHARD S. THOMPSON, and Mr. JOHN N. JEWETT, for the plaintiff in error.

Mr. E. ROBY, and Messrs. MCCAGG, CULVER & BUTLER, and Messrs. WILLIAMS & THOMPSON, for the defendants in error.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was a proceeding, instituted in the circuit court of Cook county, by the South Park Commissioners, for the condemnation of two certain tracts of land, containing twenty acres each, for park purposes.

The petition in the case was filed on the 18th day of April, 1873, but the trial which resulted in the judgment under consideration was not begun until the 18th day of December, 1876, and was not concluded until January 8, 1877, when a verdict was rendered, in which the value of one tract of land was estimated at $74,783.41, and the value of the other tract at $49,856.20.

The commissioners entered a motion for a new trial, which was overruled on the 2d day of June, 1877, and judgment entered upon the finding of the jury, to reverse which the park commissioners have sued out this writ of error, and contend, by their counsel, that the judgment should be reversed, on the following grounds:

1. The court erred in refusing to admit the evidence offered by the plaintiff to show the value of the property in question at the time of the trial; and in limiting the inquiry as to the value of the property to April 18, 1873, the date when the petition was filed.

2. The court erred in instructing the jury to add to their estimate of the value of the land on April 18, 1873, interest at the rate of six per cent per annum, from April 18, 1873, to the time at which the instruction was given, and to include the same in the verdict.

3. The court erred in entering the order or judgment on the verdict in such manner that the amount found by the verdict should bear interest from the date of the entry of such order until payment.

4. The court erred in admitting evidence as to what would have been the value of the property had it been subdivided into lots, blocks, streets, etc.

5. The court erred in admitting evidence of valuation based upon the special benefits the property received from its supposed frontage upon the South Park.

6. The evidence does not support the verdict.

These several grounds of reversal will be considered in the order in which they have been made by counsel for the commissioners.

In regard to the first question presented, it probably would not have arisen had a trial occurred soon after the petition was filed, but owing to the long delay in a trial of the cause, after the petition was filed, property depreciated, and consequently the question, when the value should be placed upon the property, became an important one to the parties in interest.

Section 2 of the act to provide for the exercise of the right of eminent domain, in force July 1, 1872, under which this proceeding was commenced, provides that when the party authorized to take property under the act can not agree with the owner or party interested as to the amount to be paid for the same, application may be made to the judge of the circuit or county court by filing a petition either in vacation or term time.

Section 3 provides that if a petition is presented in vacation the judge shall note thereon the day of presentation and also the time when he will hear the same. These sections of the act would seem to imply that it was contemplated that a speedy trial and determination of the amount of damages to be allowed as compensation for property to be taken would be had after a failure to agree upon the amount, and if a trial should be had immediately after the parties had failed to agree upon the amount, and the petition had been filed, there would be no probability of a rise or fall, in the market, of the value of the property. Why should the statute provide for the petition to be presented to the judge in vacation, and for him to fix upon a time for trial, unless it was intended that the compensation should be at once ascertained, and the value be confined to the time of filing the petition? But independent of the statute, the evident object and import of filing a petition where parties can not agree, is to ascertain the just and true amount of compensation for property to be taken, not five years before the petition is filed, or three or five years thereafter, but at the time of filing the petition. Suppose the property in question was worth, at the time the petition was filed, $100,000, and the commissioners, knowing that to be its true value, had provided themselves with money necessary to pay that amount of damages, and filed a petition to condemn the property, but owing to delays, which are sometimes incident to legal proceedings, over which the commissioners had no control, a trial was not had until three years after the petition was filed, and in the meantime, the property had increased in value to $200,000, would it be reasonable to hold that this increased valuation could be proven, and the commissioners compelled to take the property at double its value when they instituted proceedings to condemn and take it? We apprehend a rule of this character would neither be reasonable nor just, and yet the principle contended for by the commissioners would lead to this result.

In an action for a breach of contract for a failure to deliver goods, the true measure of damages is the value of the goods at the time required by the contract for delivery, and in an action for a conversion of property, the evidence is confined to the value at the time of conversion, and in neither case can proof be introduced of the value of the property after suit commenced, as was aptly illustrated by counsel for the defendants. The same principle may be applied to a case of this character. The filing of the petition is the commencement of the action. Those interested in the land by that act are brought into court, and the inquiry is, what amount shall be then allowed as a just compensation for the property described in the petition.

Counsel for the commissioners have, however, referred to Cook v. The South Park Commissioners, 61 Ill. 115, as an authority in support of their view of the case. In that case, on the trial in the circuit court, the evidence, in regard to the value of the land which the commissioners petitioned to have condemned, was confined to the value of the land at the time the Park act went into force. This was held to be error, and it was said: “The legislature has not the power, by mere declaration of law, to set apart the land of the citizen for the use of corporations, and divest the owner of the right to sell and improve it. It can not, by arbitrary enactment, take property for public use, and limit the owner's right to recover compensation to the date of the law, when the property might greatly enhance in value between the passage of the law and the time when proceedings to condemn are commenced. We therefore think that the evidence excluded by the court should have been admitted, and that the value of the land should...