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A. F. HARRIS et al. impleaded, etc.

V.

THE CITY OF CHICAGO.

Filed at Ottawa June 13, 1896.

1. EMINENT DOMAIN-section 15, article 9, of City and Village act, construed. Section 15, article 9, of the City and Village act, (Rev. Stat. 1874, p. 262,) providing that the court shall enter an order that the city or village may, "at any time thereafter," take possession of condemned property, has reference to a supplemental order to be made upon proof that the compensation has been paid or deposited, and not to the judgment rendered on the jury's finding.

2. SAME-taking possession of condemned lands—waiver of owner. The provision of the City and Village act, (Laws of 1891, p. 80,) that the city or village shall take and pay for lands condemned within two years from entry of judgment in the condemnation proceedings, may be waived in open court and the waiver made a part of the judgment of condemnation.

3. SAME-condemnation of street across railroad—easement only acquired. A judgment condemning a strip of land for a street across railway tracks and right of way upon a verdict in the usual form, making award of compensation without conditions, properly restricts the interest acquired to an easement instead of the fee.

4. SPECIAL ASSESSMENTS-when stipulation as to possession of condemned lands is no defense to special assessment. A supplemental petition for the confirmation of a special assessment to pay the compensation awarded on property taken by condemnation for a street should not be dismissed because it was incorporated in the judgment by stipulation that the city would not take certain railway lands condemned for six years unless the companies owning them should sooner elevate their tracks in accordance with a certain ordinance, as such stipulation, at most, only renders the judgment erroneous, and not void.

5. SAME-effect of city not taking immediate possession. A special assessment for the extension and opening of a street upon property specially benefited is not prevented by the mere fact that the city cannot, for a limited but uncertain time, take possession of a small portion of the land to be included in such street.

6. SAME what may be shown on application for judgment for special assessment. It seems that everything which shows that a special assessment should not be collected, and which cannot be interposed at the time of the application for judgment of confirmation, can be urged for defense upon application of the county collector for judgment of sale, and proper relief granted by the court.

7. SAME―indefinite postponement of possession of street-equitable relief. If objection that possession of part of land condemned for a street cannot be had for an indefinite period cannot be interposed as a defense to the application for judgment of sale for the assessment, a court of equity may afford relief if the city attempts to enforce payment unjustly.

8. EVIDENCE matters affecting benefits competent in special assessments. An ordinance, together with a stipulation in a judgment of condemnation for a street, which tends to show that at about the time of opening the street in question access to the property of the objecting owners will be had by means of another street the impassable condition of which was relied on to enhance the benefits, is admissible in evidence in a supplemental proceeding under section 53 of the City and Village act. (Hutt v. City of Chicago, 132 Ill. 352, and Edwards v. City of Chicago, 140 id. 440, distinguished.)

APPEAL from the Circuit Court of Cook county; the Hon. FRANCIS ADAMS, Judge, presiding.

HILLIS & McCoy, for appellants.

JOHN F. HOLLAND, and WILLIAM G. BEALE, Corporation Counsel, for appellee.

Mr. JUSTICE BAKER delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Cook county, confirming a special assessment in a supplemental proceeding under section 53 of article 9 of the Cities and Villages act, instituted for the purpose of raising the amount necessary to pay the compensation theretofore awarded for property taken by condemnation for opening Sixtieth street, from State street to Wentworth avenue, in the city of Chicago.

The supplemental petition recites that the aggregate amount awarded as just compensation for the various lots and parcels of property to be taken or damaged for the proposed improvement was $51,246.80, and prays for the appointment of commissioners to make an assessment to raise money to pay said awards and costs incurred and to be incurred in making and collecting said assessment. Commissioners having been appointed by the court and an assessment roll made and returned by the commis

sioners, the appellants herein appeared in the court below and filed objections to the said assessment being confirmed against their respective lots and parcels of property, on the ground, among other reasons, that their said lots would not be benefited by the proposed improvement, and that the judgment of the court in the condemnation proceedings which preceded the filing of the supplemental petition, in so far as it related to one of the parcels of land condemned, was not warranted by law.

In the condemnation suit which preceded the filing of the supplemental petition there were two separate verdicts and judgments. One of said verdicts awarded amounts aggregating the sum of $50,346.80 for various parcels of land to be taken for the purpose of opening said street. The judgment on this verdict provides that "upon payment to the county treasurer of Cook county, Illinois, by said city, of the said several sums for the use of the owner or owners of any or each of said parcels of property, or upon proof made that the said sums of money, or any of them, have been paid to the owner or owners, respectively, of said parcels of property, the city of Chicago shall have the right, at any time thereafter, to take possession of and damage the property in respect to which compensation shall have been so paid or deposited." The other verdict awarded to the owner or owners of a part of the right of way of the Chicago, Rock Island and Pacific Railway Company and the Lake Shore and Michigan Southern Railway Company (describing the part particularly) the sum of $900 as just compensation to be paid to the owner or owners of said parcel of land sought to be taken or damaged for the proposed improvement.

In the judgment of the court rendered on this latter verdict there is incorporated a provision which reads as follows: "And it is further ordered and adjudged, by agreement of the city of Chicago, by its attorneys, and the said railway companies and each of them, by their

attorneys, said agreement being now made and entered into in open court, that upon payment to the county treasurer of Cook county, Illinois, by the said city of Chicago, of the said sum of money for the use of said railway companies, or upon proof made to or before the court that the said sum of money has been paid to said railway companies, the city of Chicago shall, with respect to the property for which said compensation shall have been paid or deposited, have the right to take possession of or damage the same at any time after the expiration of six years from the date of the entry of this order, or at such time prior thereto as said railway companies shall, in compliance with an ordinance of the city of Chicago passed July 9, 1894, construct, erect and elevate the plane of their tracks where the same cross Sixtieth street, in the city of Chicago, or would cross said street if it were extended and opened across the rights of way of said companies, the possession and right of said city of Chicago in the property before mentioned being solely for the uses and purposes of the public improvement, as set forth in the petition filed herein, the postponement of the time for the taking of such possession, as herein provided for, being the condition on which this order is made."

Said ordinance of July 9, 1894, requires the Chicago, Rock Island and Pacific Railway Company and the Lake Shore and Michigan Southern Railway Company to elevate their tracks in the city of Chicago for a distance of five and one-third miles south from a point near Eighteenth street, in said city of Chicago, and provides that a sub-way shall be constructed under said tracks thus elevated, at Sixtieth street, and also makes provision for a similar sub-way under the tracks at Sixty-first street, and requires that the elevation of said railroad tracks for the whole of said distance be completed by August 1, 1899, but leaves it to the discretion of the railroad companies whether they will complete the elevation of the tracks in a shorter period or not.

Prior to the trial on the assessment roll, the objectors in the court below, appellants here, moved the court to dismiss the petition for a special assessment to cover the cost of the proposed improvement, for the reason that the city had stipulated and agreed not to take possession of a portion of the property condemned within six years from the date of the judgment of condemnation unless the railroad tracks should be elevated before that date. But the court overruled the motion, and exception was taken.

At the trial before the jury upon the objections that the property of the objectors will not be specially benefited by the proposed improvement, and that the assessments upon their property exceed the benefits which will accrue to said property from such improvement, the attorneys for the objectors offered in evidence a certified copy of the judgment order of condemnation as to the said part of the right of way of the Chicago, Rock Island and Pacific Railway Company and Lake Shore and Michigan Southern Railway Company, and also offered in evidence the ordinance of July 9, 1894, requiring said railway companies to elevate their tracks. But the court, over the objections and exceptions of appellants, excluded both said judgment order and said ordinance from the jury.

The verdict of the jury and judgment of the court confirmed the special assessments upon the property of appellants as the same appeared upon the assessment roll that was returned into court by the commissioners.

First-In our opinion it was not error to overrule the motion to dismiss the supplemental petition, for the reason that by stipulation of the parties it was incorporated in one of the condemnation judgment orders that the city would not take possession of the premises therein condemned until after the expiration of six years from the date of such judgment, unless prior thereto the railway companies should, in compliance with the ordinance of July 9, 1894, elevate the plane of their tracks at the place where the same would cross the proposed Sixtieth street.

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