Western Springs Park Dist. v. Lawrence

• Decision Date: 10 April 1931
• Docket Number: 20474.,Nos. 20473,s. 20473
• Citation: 343 Ill. 302,175 N.E. 579
• Parties: WESTERN SPRINGS PARK DIST. v. LAWRENCE. SAME v. LAWRENCE et al.
• Court: Illinois Supreme Court

343 Ill. 302

175 N.E. 579

WESTERN SPRINGS PARK DIST.

v.LAWRENCE.

SAME

v.LAWRENCE et al.

Nos. 20473, 20474.

Supreme Court of Illinois.

Feb. 18, 1931.

As Modified on Denial of Rehearing April 10, 1931.

Condemnation proceeding by the Western Springs Park District against Henry F. Lawrence, the Elmhurst State Bank, and others. Judgment of condemnation, and defendants named appeal.

Affirmed.

Appeals from the Circuit Court, Cook County; Craig A. Hood, judge.

John R. O'Connor, Alben F. Bates, and William M. Webster, all of Chicago, for appellant Elmhurst State Bank.

George P. Foster, of Chicago, for appellant Lawrence.

Frank W. Swett, of Chicago, for appellee.

HEARD, J.

Appellee, the Western Springs Park district, filed its petition in the circuit court of Cook county for the condemnation of a tract of land for park purposes, making the appellants. Henry F. Lawrence and the Elmhurst State Bank, trustee, and the village of Western Springs and others, parties defendant. Motions by appellants to dismiss were heard and overruled. A jury was impaneled which fixed damages, and a judgment of condemnation was rendered thereon, from which judgment the appellants severally appealed, and their appeals have been consolidated in this court.

Appellants' motions were based on the contention that a portion of the lands sought to be taken were described as public streets of the village of Western Springs, and that, being subject to a public use, they could not be condemned for another such use. The petition, after describing certain lots and blocks, contained the following: ‘So much of Spring street as shown upon the plat of said Mary J. Sweet's re-subdivision as lies north of the north line of Elm street as extended west; so much of Burlington avenue as shown on said plat of Mary J. Sweet's re-subdivision as lies between the east and west lines of block 1 in Mary J. Sweet's re-subdivision aforesaid as extended north, all in Cook county, Illinois.’ The petition also contained the allegation that all the land described in the petition and sought to be taken was private property, and gave the names of the persons who claimed to own the same, so far as known.

The land sought to be taken was all platted in September, 1892, and the plat was accepted and approved by the village board. As to the portion of Spring street described in the petition, it was stipulated that it had never been used as a street. The evidence shows that the only use which had ever been made of the portion of Burlington avenue described in the petition was the excavation of earth therefrom for making the embankment upon which the Chicago, Burlington & Quincy Railway was built and as a dump heap for waste material-old bed springs, automobile bodies, plaster, tin cans, and other rubbish. There were large trees over thirty years old growing on the alleged street. The evidence showed it was impassable, and that, in order to get to the dump heap, it was necessary to pass over adjoining property platted as lots. The evidence showed that from the time of its platting its use as a street was not possible by reason of its physical conformation.

The making and recording of the plat and its approval by the city council do not constitute an acceptance of it as a conveyance of the public grounds indicated on the plat. It was no more than an offer, which was not binding upon the municipal authorities until acceptance by them. The owner of property cannot, by making a plat of an addition to a city, impose upon the public authorities the burden of caring for the streets and alleys included in his subdivision of the property. The approval of the plat by the city council is evidence tending to show that the plat complies with the statute and the ordinances of the city, but it is not an acceptance of the streets and passageways shown upon the plat. Notwithstanding such approval, the city still has the right to elect what streets upon the plat shall become public highways and public charges upon the municipality for their maintenance. Nimpfer v. Village of Fox Lake, 334 Ill. 46, 165 N. E. 143;Hoerrmann v. Wabash Railway Co., 309 Ill. 524, 141 N. E. 289;People v. Massieon, 279 Ill. 312, 116 N. E. 639;Russell v. Chicago & Milwaukee Electric Railway Co., 205 Ill. 155, 68 N. E. 727. The evidence shows that the premises in question were never accepted by the village board as streets. The village was a party to the suit, and made no claim to the land as streets, and is not here complaining of the court's judgment of condemnation thereof. On the trial, appellee claimed that the land belonged to appellants, and it was included in the estimate of the value of the land condemned, and appellants' damages were increased thereby. Whether the so-called streets were subject to condemnation, appellants' property was, and they have no cause for complaint in the premises.

Frank W. Swett represented appellee, and George P. Foster, while technically only representing appellant Lawrence, in fact throughout the entire trial represented both appellants, and was the only person who examined and cross-examined the witnesses and made the arguments to the jury for both appellants. Of the premises sought to be condemned, a narrow strip containing .112 of an acre belonged to some Sweet heirs who are not complaining of the judgment, and the remainder, including the so-called streets and called on the trial ‘the larger tract,’ contained 12.169 acres. Before argument to the jury was commenced, the court stated that it was customary to submit a form of verdict, and inquired of counsel if they had checked it over. Swett then handed the typewritten form of verdict later used to counsel for appellants, who were told by the court to ‘check it over.’ Counsel for appellants then examined the form of verdict, after which Foster handed it to the court, stating,‘We have no objection.’ This form contained no reference to the so-called streets. After the arguments to the jury were concluded, the following took place:

‘The Court: Counsel on each side, I am confused about this verdict. Will you please step forward. I think the jury will be confused, too. I notice there are two separate parcels here. The jury will be obliged to divide their verdict, I take it, on the matter of ownership. I tell you what I had better do, if it is agreeable to both of you: Take a red pencil and mark that tract so the jury differentiates on the map-so the jury will know what it is all about.

‘Mr. Swett: The testimony on that 12-foot strip was that it was the same acreage value.

‘The Court: Just a minute. Take a red pencil and mark that part there-mark it ‘No. 2.’ Then on the verdict we will--

‘Mr. Swett: If the court please, it is .112 of an acre in lot ‘A.’ I think if we mark it any more-it is referred to all through the case as .112 of an acre, lot ‘A.’ Whatever you say we will do.

‘The Court: Well, I thought it would be a good idea to mark that with a red pencil or a pencil of some sort. Mark it ‘No. 2,’ and the rest of the property will be ‘No. 1.’ Then I will mark it in the verdict the same I will mark it ‘No. 1’ and I will mark this little special strip of property ‘No. 2.’ Otherwise the jury might be confused in this long trial and fill in the wrong blanks and we would have all this work to do over again. We don't want to do that. Make it as clear as possible.

‘Mr. Swett: Is exhibit ‘A’ here?

‘(Mr. Foster picks up from the table a blue-print which is a duplicate of petitioner's exhibit ‘A.’)

‘Mr. Swett: That is one of those the jurors had.

‘(Two copies of the blue-print, petitioner's exhibit ‘A.’ were by stipulation used by the jury throughout the trial for reference.

‘The Court: Use any kind of a pencil-a blue pencil. Take this blue pencil.

‘Mr. Swett: Have that plat market exhibit ‘A.’

‘Whereupon said plat was handed to respondents' reporter by Mr. Foster and marked ‘Defs. A’ and received in evidence to be used for reference by the jury. No. 1 as marked on this plat included the so-called streets. After instructing the jury as to the law the court read the form of verdict to the jury and stated:

‘Now here, gentlemen, when you come to that place at the top of the second page in this verdict you will find I have marked a ‘1’ right beside it. [The court shows form of verdict to the jury.] That ‘1’ means all of the property in this lawsuit except the little strip which is called to your attention by the figure ‘2.’ It is within the white line. It is called lot ‘A.’ It just this little fraction of an acre down here; see? [Pointing to Def.'s exhibit ‘A.’] Now, when you come to ‘1’ in the verdict put in the full cash market value of all the property, with the exception of that little strip, which you have to value separately. Now, do you all understand that, so that when you come to this first place in the verdict marked ‘1’ you put in the value of the whole property with the exception of that little strip which is called lot ‘A’?'

The jury then retired to their jury room, taking with them the plat upon which the tracts were marked in pencil with the figures ‘1’ and ‘2,’ with directions, by agreement of all parties, that, if a verdict was reached, the jury...