233 Ill. 508 | Ill. | 1908
delivered the opinion of the court:
In a condemnation proceeding under the Eminent Domain act the jury is empaneled to fix the amount of compensation and damages which are to be paid to the owner or owners and parties interested in'the property sought to be condemned, and it has nothing to do with the title to the property sought.to be taken. The question of title, if any such question is raised, should be determined and settled by the court prior to the time the questions of compensation and damages are submitted to the jury. (Chicago and Milwaukee Electric Railroad Co. v. Diver, 213 Ill. 26; Lieberman v. Chicago and South Side Rapid Transit Railroad Co. 141 id. 140.) We think, therefore, the trial court adopted a proper practice by requiring all persons claiming an interest in the Clark property to litigate and settle their interests in that property before the court prior to the empaneling of the jury to determine, the compensation and damages which the railway company should pay to the owner or owners and parties interested in said property, to the end that the amount to be paid to each owner or person interested in the said property might be separately determined by the jury. In the determination and settlement of the interests of the respective parties in and to said premises the court was not restricted to mere legal titles, but had the. power to ascertain the rights of the parties therein, whether such rights were legal or equitable in their nature. (Metropolitan West Side Elevated Railway Co. v. Eschner, 232 Ill. 210.) While it has been held that in the trial of a condemnation suit either party is entitled to have a jury, and the introduction of evidence and mode of conducting the trial after the jury is empaneled is according to the rules of practice in trials at law, and in that sense a proceeding to condemn property under the Eminent Domain act is a legal and not an equitable one, (Union Mutual Life Ins. Co. v. Slee, 123 Ill. 57; Grand Tower and Cape Girardeau Railroad Co. v. Walton, 150 id. 428;) in the determination and settlement of the title of the parties to a condemnation suit to the property sought to be condemned, equitable as well as legal rights must be taken into consideration, and in the settlement of the question of title the proceeding is equitable in its character.
It appeared from the evidence that the appellants were in possession of portions of the premises sought to be condemned, under leases which were void under the Statute of Frauds. It, however, appeared that the appellants each took possession of the portion of the premises covered by their respective leases, under such leases; that each had made valuable improvements thereon, and that they had each paid to the owner of the fee all rent provided by said leases to be paid, and that she had accepted such rent. While, at law, such part performance on the part of the appellants would not take said leases out of the Statute of Frauds, in equity it would. We think, therefore, the trial court erred in determining and settling the rights of the appellants in and to the premises sought to be condemned, as against the owner of the fee.
The judgment of the superior court will therefore be reversed and the cause remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.
