| Ill. App. Ct. | Jun 28, 1901
delivered the opinion of the court.
The only question requiring consideration is whether an action of assumpsit can be maintained against the city of Chicago, defendant in error, to recover the amount awarded as compensation for land sought to be taken in the condemnation proceeding.
It has been repeatedly held that the city has the right to abandon the condemnation and the improvement. It is under no legal obligation to pay the compensation awarded unless it shall choose to do so. It can not, however, lawfully take possession of the property unless with the owner’s consent, until it has so paid. City of Chicago v. Hayward, 176 Ill. 130" date_filed="1898-10-24" court="Ill." case_name="City of Chicago v. Hayward">176 Ill. 130 (131) and cases there cited. In the case before us, it appears that the city has taken possession of the property- in controversy with the assent of the owner. It is urged that such taking possession creates an implied contract between the city and the owner that the city will pay the compensation awarded, and that to recover this compensation assumpsit will lie. It must be borne in mind, however, that the adoption of any mode of payment by the city, whether by special taxation, by special assessment, by general taxation or out oí general funds, excludes the right to raise the money for payment in any other manner than the one adopted by the ordinance. Village of Hyde Park v. Corwith, 122 Ill. 441" date_filed="1887-05-12" court="Ill." case_name="Village of Hyde Park v. Corwith">122 Ill. 441 (446); People ex rel. v. Village of Hyde Park, 117 Ill. 462" date_filed="1886-01-25" court="Ill." case_name="People ex rel. Thatcher v. Village of Hyde Park">117 Ill. 462 (470). If, therefore, the city takes possession of the property with the owner’s consent, the implied contract, if any, must be that it will pay the compensation awarded out of money to be raised in the manner provided by the ordinance, and in no other manner. It would have no power to enter into a formal agreement to pay with money to be raised in any other manner, and a contract can not be implied against it which would bind it to that which it has no power to do by direct agreement. The city can not acquire lands for street purposes by private purchase, and the owner’s assent to the taking can not increase its powers in that respect, nor change the character of its obligation to such owner. The city can only acquire land for such purpose in the manner provided by the statute, viz., the passage of an ordinance and condemnation proceedings thereunder. The mode of payment provided by the ordinance must be strictly followed. But, if an action of assumpsit could be maintained, the city might be compelled to raise the money to pay a judgment recovered against it in such action in a mode not provided by the ordinance. Village of Hyde Park v. Corwith, 122 Ill. 441" date_filed="1887-05-12" court="Ill." case_name="Village of Hyde Park v. Corwith">122 Ill. 441 (445). The ordinance in the present case provides that the cost of the taking should be met by special assessment to the extent the property benefited might be legally-assessed therefor, the remainder only to be met by general taxation. It can not be met in any other manner.
The statute provides a remedy for the land owner where the city has taken possession of the property and not paid therefor. (Rev. Stat. Chap. 24, Par. 169.) In the present case the court entered an order in the original cause requiring the city to pay within a specified time the condemnation judgment, with interest from the time of taking, as the statute requires. The city has made default and upon application in that original cause, which by the statute is considered as still pending, the court would doubtless, as the statute further provides, “ dismiss the proceedings, and enter a several judgment in favor of such land owners for interest from the day of taking, and direct the issue of a writ of possession in favor of the several owners or their legal representatives or grantees respectively.” The proceedings may be dismissed notwithstanding possession has been taken. The owner has also the right to bring ejectment or trespass, or both, and recover his property with such damages as he may have sustained by the unlawful taking. Chicago, St. L. & W. R. Co. v. Gates, 120 Ill. 86" date_filed="1887-03-23" court="Ill." case_name="Chicago, St. Louis & Western Railroad v. Gates">120 Ill. 86; City of Chicago v. Hayward, supra, p. 135.
The judgment of the Superior Court must be affirmed.