Woollacott v. City of Chicago

• Decision Date: 19 October 1900
• Citation: 58 N.E. 426,187 Ill. 504
• Parties: WOOLLACOTT v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

187 Ill. 504

58 N.E. 426

WOOLLACOTT

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from superior court, Cook county; Jonas Hutchinson, Judge.

Proceeding by John S. Woollacott against the city of Chicago. From a judgment for defendant, petitioner appeals. Affirmed.

[187 Ill. 504]1. The proviso in article 9, § 53, of the city and village act, passed as an amendment in 1891 (1 Starr & C.Ann.St. [2d Ed.] p. 779), authorizes the court, where property has been condemned for public purposes, and has been taken possession of by the city or village, but has not been paid for, after two years from the judgment of condemnation, on motion of the owner of such property, to enter an order requiring the city or village to pay the amount of the judgment, with interest from the time of such taking, within a short day to be fixed by the court, and in default thereof to dismiss the proceedings, and enter a judgment in favor of the owner or his legal representatives or grantees. Held, that a judgment for interest can only be entered under such provision where a writ of possession is awarded, and that such writ cannot be granted in favor of an owner who has by his own act, since the entry of the judgment of condemnation, dedicated the property as a street, and by the sale of adjacent property with reference to such street estopped himself, as against his grantees, from claiming the same as private property.

2. Where an owner executed and filed a plat of property, designating a portion thereof as a street, which, under the statute, would operate as a dedication as effectually as a deed, the fact that proceedings had previously been instituted to condemn the property for street purposes in which a judgment of condemnation had been entered, but the award had not been paid, does not negative an intention to make a voluntary dedication by the plat which will defeat the same, conceding such intention to be essential to a statutory dedication, because the owner is bound to know that under the statute the city may dismiss the condemnation proceedings, and especially where the owner had himself filed a motion for their dismissal, which was still pending and undetermined.

3. Where an owner has executed, acknowledged, and filed a plat of his property, on which a certain portion is designated as a street, has sold lots to third persons with reference to such plat as fronting upon such street, which they have improved, and the municipality has taken possession of and improved the street, he is estopped, both as against his grantees and the municipality, to deny his intention to make a dedication of the street.

This is a proceeding stated by counsel to be under section 53, as amended in 1891, of article 9 of the city and village act of 1872. The proceeding was begun by petition filed on March 24, 1900, nunc pro tunc as of March 8, 1899, setting forth the condemnation and supplemental assessment proceedings hereinafter mentioned; and also setting up the repealing of the ordinance of condemnation, and the vacation of the judgment of condemnation, and of the judgment affirming the special assessment, and the dismissing of the petitions therein; and also setting up that the city has assumed the control and use of the property condemned without paying compensation or damage therefor; and praying that a judgment be entered in accordance with the terms of the statute in such cases made and provided, awarding interest on the amount of said judgment from the date of taking possession of said property by the city, and further directing the issuance of a writ of possession for said property in favor of the petitioner. On March 24, 1900, the court rendered a judgment, finding the issues for the respondent, the city of Chicago, and directing that the city recover of the appellant its costs and charges, and have execution therefor, to which the appellant excepted. The present appeal is prosecuted from the judgment entered, or finding made, on March 24, 1900, as aforesaid.

The facts are substantially as follows: On November 15, 1886, the board of trustees of the town of Lake View passed an ordinance for opening and extending Lake View avenue from the south line of St. James place to the north line of Fullerton avenue, the avenue as opened and extended to be of the width of 50 feet, and the east line thereof to be the east line of the S.W. 1/4 of section 28, township 40 N., range 14 E. of the third principal meridian. On November 22, 1886, the town of Lake View filed in the superior court of Cook county its petition for the ascertainment of just compensation to be awarded to the owner or owners of property to be taken or damaged for the opening and extending of Lake View avenue as aforesaid. Among the property to be taken for said improvement, and described in said petition, was a strip of land 50 feet in width off the easterly line of lot 4 and off the south 27 1/2feet in width of lot 3, all in Assessor's division of lot 4 of Wrightwood, being a subdivision of said S.W. 1/4. At that time William C. Goudy was the owner of the strip of land 50 feet in width as above described. On November 2, 1887, the jury returned a verdict awarding to the owner of said strip $5,000. On January 7, 1888, judgment of condemnation for $5,000 was rendered upon the verdict. At that time William C. Goudy was the owner of the whole of said lot 4 and of the south 27 1/2 feet of said lot 3. At that time, also, David Goodwillie, or his wife, Cecelia Goodwillie, was the owner of lot 2 in said Assessor's division, and of said lot 3, except said strip of land 27 1/2 feet in width off the southerly side of said lot 3.

A supplemental petition was filed under said section 53, praying that an assessment be made for the purpose of raising the amount necessary to pay the compensation and damages awarded for the property taken or damaged. In this supplemental proceeding the commissioners filed their assessment roll on January 21, 1888, and reported that lot 4, and the south 27 1/2 feet of lot 3, except the east 50 feet thereof, was specially benefited in the sum of $4,628.75, being only $371.25 less than the condemnation judgment. December 3, 1888, the said assessment roll and report were confirmed. Goodwillie and Goudy filed objections to the confirmation of the assessment, and took an appeal to this court from the judgment confirming the same. This appeal was finally disposed of on March 30, 1891, as may be seen by reference to the case of Goodwillie v. City of Lake View, 137 Ill. 51, 27 N.E. 15. After the filing of the original petition, the city of Lake View was substituted for the town of Lake View; and thereafter, on June 29, 1889, the city of Lake View became annexed to the city of Chicago, and the city of Chicago entered its appearance in said proceeding, and assumed the direction and control of the proceedings of condemnation and supplemental assessment. Said lots 2, 3, and 4 are long lots, running east and west, and extending eastward from North Clark street to Lincoln Park.

While the appeal from the judgment of confirmation was pending, Goudy and Goodwillie made a new subdivision of said lots 2, 3, and 4, known as “Goudy & Goodwillie's Subdivision of Lots 2, 3, and 4 in Assessor's Division of Lot 4,” etc. By this subdivision, a street called “Roslyn Place” was made to run east and west, and north of the property owned by Goudy; and said lot 4, and the south 27 1/2 feet of said lot 3, so as aforesaid owned by him, were subdivided into lots numbered from 18 to 33, inclusive. Of these lots, lots numbered from 18 to 30, inclusive, ran north and south, and fronted on Roslyn place, while lots numbered from 31 to 33, inclusive, ran east and west, and fronted on Clark street. In this subdivision lot 18 was the most easterly lot, and embraced the strip of land 50 feet wide mentioned in the condemnation judgment for $5,000. On November 6, 1890, Goudy and wife deeded to appellant, John S. Woollacott, for an expressed consideration of $75,000, said lots from 18 to 33, inclusive, of Goudy & Goodwillie's subdivision above named. This deed contains the following recital: “The covenants in this deed shall not apply to the west fifty feet of said lots 31, 32, and 33, and also proceedings for condemnation of said lot 18, and a special assessment for opening and extending Lake View avenue.”

On March 19, 1892, appellant and Goodwillie filed a petition in the original suit above described, under section 53 of article 9 of the city and village act as amended in 1891, and therein described the proceedings for the opening and extending of Lake View avenue to the uniform width of 50 feet from the south line of St. James place to the north line of Fullerton avenue, as above set forth. Said petition so filed on March 19, 1892, stated that, although more than two years had elapsed since the entry of judgment in said proceeding, yet that no part of the lands of Goudy and Goodwillie, or of any of them, had been taken or damaged for said improvement or otherwise, and that no part of the several sums awarded to be paid for said lands had been paid for them or for any part thereof; and the petition prayed that the court would enter an order that the city of Chicago should pay for said lands, so proposed and ordered to be taken, the said sums awarded therefor in said judgment, within a short day to be fixed by the court, not later than 20 days from the date of entering of such order, and that, in default thereof, the proceedings be dismissed, so far as the same related to the lands of petitioners, appellant, Woollacott, and said Goodwillie. The city of Chicago filed an answer to said petition of Woollacott and Goodwillie, and stated in said answer that the delay in the prosecution of the proceeding, if any, had been caused by Goudy and Goodwillie, who filed objections to the assessment, and took an appeal to the supreme court of the state, which was not finally disposed...