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It is provided in section 10 of article 9 of the Cities and Villages act, that upon the return of the verdict of the jury in a proceeding for the condemnation of property for a local improvement the court shall order the same to be recorded, and shall enter such judgment or decree as the nature of the case may require. And it is provided in section 14 that any final judgment or judgments rendered by the court upon the 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. Here, the parties to the condemnation proceeding were the city of Chicago and the two railroad companies, and the court had full jurisdiction of said parties, and the passage of the ordinance for the proposed local improvement and the filing of the petition gave the court jurisdiction of the subject matter. Therefore the judgment that was rendered, even if it can be regarded as erroneous, was not invalid and void. In Newman v. City of Chicago, 153 Ill. 469, this court said that the condemnation proceeding is final and conclusive as to the parties thereto until it is reversed or vacated, and that hence the questions properly arising in the condemnation proceeding cannot be re-litigated. in the supplemental proceeding, the object of which is merely to raise funds to pay the judgment of condemnation already entered. And in Goodwillie v. City of Lake View, 137 Ill. 51, which was a supplementary proceeding to raise money by a special assessment to pay for lands to be taken by a municipality for opening and extending a street, it was held that the city might levy a special assessment before it had acquired, by condemnation or otherwise, all the ground required for the street.
Appellants seem to place reliance on the provision in section 15 of said article 9, that 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. That section does not relate to the judgment to be
rendered by the court upon the finding of the jury, but to a supplemental order to be made by the court upon proof that the compensation fixed by the verdict, and the judgment based thereon, have been paid or deposited as directed by the court. The petitioner does not have the right to take possession at any time after the entry of the verdict and judgment awarding just compensation, but only after the payment of such compensation or the entry of the supplemental order above mentioned.
Appellants also rely on the amendment or proviso of June 18, 1891, to section 53 of said article 9. (Laws of 1891, p. 80.) It is therein provided that the city or vil lage shall take and pay for the lands sought to be taken or damaged, within two years of the entry of judgment in the condemnation proceedings. This provision was manifestly enacted for the benefit and protection of the owner of the land whose property is sought to be taken or damaged, and the doctrine is, that a party may waive not only a statutory, but even a constitutional, provision made for his benefit. (Chicago, Milwaukee and St. Paul Railway Co. v. Hock, 118 Ill. 587, and authorities there cited.) Here the benefit of the statute was waived in open court, and, by agreement of the city and the railway companies, made a part of the judgment of condemnation.
Assuming that the extension and opening of Sixtieth street are a local improvement, and that there is a valid ordinance for such improvement, and that the property of appellants will be specially benefited thereby, we are unable to see upon what theory of law or of justice the mere fact that the city is prevented, for a limited but uncertain time, from taking possession of a small portion of the land that is eventually to be included in such street as extended, works the result of rendering it unlawful to make any special assessment whatever upon appellants' property for the purpose of the proposed improvement.
But it is urged that the money, if collected now, will lie in the city treasury four or five years and the people
who pay it will be getting no benefit during that time, and that the city has tied its hands and cannot open the street for a number of years, and has no right to collect, or even levy, the assessment unless it is ready and able to use it. The $900 awarded the railway companies is but a small part of the $51,246.80 to be levied. As soon as said, companies elevate their tracks at the place of their intersection with Sixtieth street, in compliance with the ordinance of July 9, 1894, the city will have the right to take possession of or damage the property for which said compensation was allowed said companies. It is only in the contingency the tracks at that place are not elevated sooner, that the taking of possession is postponed until the expiration of six years from the date of the judgment of condemnation. The provisions of the ordinance and the terms of the stipulation indicate that an immediate commencement and continuous prosecution of the work of elevating the tracks were contemplated and provided for, and at the time the motion to dismiss was submitted to the circuit court, the attorney for the city offered to stipulate that the assessment roll should not be certified to the collector until the tracks were elevated.
It does not appear to us that the mere making of an assessment seriously jeopardizes the rights or the interests of appellants. It seems that everything which shows that a special assessment ought not to be collected, and which cannot be interposed at the time of the application for judgment of confirmation, can be urged as a defense upon the application of the county collector for judgment of sale and proper relief granted by the court. (Boynton v. People ex rel. 159 Ill. 553.) And even if this be not so, then, if the city should attempt to enforce payment of the assessments at a time and under circumstances that would be unjust and inequitable, a court of equity would afford adequate relief. Holmes v. Village of Hyde Park, 121 Ill. 128; Goodwillie v. City of Lake View, supra.
Second-The claim that the condemnation judgment as to the strip of land across the railway tracks and right of way was not in accordance with the verdict of the jury, and therefore invalid, and that the objections filed in that behalf should have been sustained, is without merit. The contention is, that the judgment did not conform to the verdict of the jury because such verdict was in the usual form, awarding $900, without conditions, for the property therein described, whereas the judgment awarded that amount of compensation but restricted the interest in the property to be acquired to a mere easement therein for the sole purpose of the proposed improvement, instead of providing that the city should acquire the fee to the property. In Illinois Central Railroad Co. v. City of Chicago, 141 Ill. 586, this court held that in a proceeding by a city against a railway company to condemn a part of its right of way and tracks for the extension of a public street over or across such right of way and tracks, a judgment of condemnation, no matter in what language couched, will not take the land itself or the exclusive use thereof, but that the city will acquire only a mere easement to cross or pass over such right of way and tracks.
Third-The action of the circuit court in refusing to admit in evidence before the jury the ordinance of July 9, 1894, and in connection therewith the condemnation judgment against the railway companies, presents a more serious question. The evidence shows, or tends to show, that the district assessed for opening Sixtieth street extends a quarter of a mile south of Sixty-first street and half a mile west of Wentworth avenue; that while the district is populous, it is in a pocket, by reason of the railroad rights of way and tracks which must be crossed in order to reach State street; that the property of most of the objectors and of appellants either fronts on Sixtyfirst street or is south of it, or west of Wentworth avenue, and that while Sixty-first street is a through street, yet
its crossing over the rights of way and tracks is only by means of a viaduct, and this viaduct is narrow, is occupied by several street car lines, is crowded, and is so high and its grade so steep that it cannot be used by traffic teams. The city relied largely upon the evidence it introduced tending to prove the above facts, in order to show that the property of appellants would be specially benefited by the opening of Sixtieth street between State street and Wentworth avenue, it being the next street north from Sixty-first street. One of the witnesses for appellee testified, in express terms, that Sixty-first street is the natural outlet for the locality here in question, if it only had proper facilities for crossing the railway tracks, which it had not. The ordinance that was excluded from the jury made provision for a sub-way sixty-six feet wide, under the railroad rights of way and tracks at Sixty-first street as well as for such a sub-way at Sixtieth street, and said ordinance, taken in connection with the stipulation and agreement embodied in the condemnation judgment for the postponement of the time when the city could take possession of the Sixtieth street crossing, tended to prove that there would be ample crossing facilities at Sixty-first street at or about the same time that Sixtieth street could be opened, and that therefore the benefits to the property of appellants by the opening of Sixtieth street would be inconsiderable, if any. All natural and probable results that will flow from a contemplated improvement may properly be considered in estimating benefits, and we think that the testimony that was excluded was both competent and material.
Appellee urges that it was not error to exclude the proffered evidence, because it is improper, in estimating benefits, to take into consideration future action of the municipality making the improvement, and relies upon the cases of Hutt v. City of Chicago, 132 Ill. 352, and Edwards v. City of Chicago, 140 id. 440. Said cases do not apply to the case at bar. It was held in those cases that future