22 N.E.2d 929 | Ill. | 1939
On December 1, 1932, the county of Will filed a petition in the county court to condemn certain land for the purpose of constructing a highway. The petition described all the land sought to be condemned as the property of Clarence M. Cleveland, who with his wife and tenant were made the sole defendants. However, the south end of the strip was a part of the land that had been conveyed to school district No. 158 of the township of Frankfort, and it was not made a defendant. After the petition was filed the case was continued several times at Cleveland's request. On December *112 9, 1933, defendants filed a motion to dismiss. The school district on December 20, 1933, procured a temporary injunction from the circuit court of Will county restraining further proceedings in the condemnation suit. The record shows that Cleveland was largely instrumental in obtaining this injunction. On December 27, 1933, the county court overruled the motion to dismiss and a week later ordered the cause continued until the disposition of the injunction suit in the circuit court. While the temporary injunction was in force, the county changed the route to a different part of Cleveland's land and so that it would not cross the school property. Cleveland was not opposed to the construction of the highway along the new route, and on December 24, 1935, entered into an agreement whereby the county paid him $2600 for land taken, for damages to land not taken, and for damages to his tenant. The injunction and condemnation suits were dismissed on December 30, 1935, and February 10, 1936, respectively. Immediately after the dismissal of the condemnation suit Cleveland filed a claim in the county court for costs, expenses, and attorney's fees. The county denied that he was entitled to any amount on the theory that the suit had been compromised, rather than abandoned. After disallowing more than $1000 of Cleveland's claim, the county court gave him a judgment for $2850.66, and this appeal followed.
The material part of section 10 of the Eminent Domain act (Ill. Rev. Stat. 1937, chap. 47, par. 10) reads: "Provided, that in case the petitioner shall dismiss said petition before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by *113
such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs." We have held this statute applicable where petitioner abandons its suit either before or after verdict. (Sanitary District v. Bernstein,
The judgment of the county court is reversed.
Judgment reversed. *114