267 Ill. 588 | Ill. | 1915
delivered the opinion of the court:
This was a proceeding in the county court of Cook county brought by the appellee district to condemn land, including some owned by appellant, in the northwestern portion of Chicago, for a park. Erom the verdict of the jury and the judgment entered thereon as to his property appellant appealed to this court.
The Northwest Park District is a. municipal corporation organized under an act to provide for the organization of park districts and the transfer of submerged lands to those bordering on navigable waters, in force July i, 1895. (Hurd’s Stat. 1913, p. 1765.) Appellant had made a contract to purchase this property January 24, 1914, but the deed conveying the same was not executed and delivered until April 2, 1914, six days after the petition for condemnation was filed. Appellant thereafter filed a cross-petition setting out his interest in the property and stating that the land was not necessary for the public use in question. When the case was called for trial appellant called up the cross-petition and moved the court to dismiss the proceedings for that reason. Affidavits were offered in support of this motion, and, so far as the abstract shows, no evidence was offered by appellee showing the necessity for taking this property for the purposes of the district. .The petition should have alleged that the property sought to be condemned was necessary for the public use specified. It contained no clear or specific allegation on this question and was faulty in that regard. The motion having been made to dismiss on the ground heretofore stated, the burden rested upon appellee to show the necessity for taking this land. The question of the abuse of power by a petitioner in condemning property for park uses is a preliminary one and must be heard by the court before the jury trial. There being no averment in the petition of necessity for the use of this property, and no proof having been offered by appellee showing such necessity, the court erred in overruling appellant’s motion to dismiss the petition. City of Chicago v. Lehmann, 262 Ill. 468, and cited cases.
Counsel for the petitioner, however, argue that this motion to dismiss was heard before Judge John E. Hillskotter while the bill of exceptions was signed by Judge Frank G. Plain, and that as no bill of exceptions as to this question was signed by Judge Hillskotter the law will presume he acted on sufficient evidence to sustain his ruling on this motion. The abstract does not show anything as to two different judges having taken part in the trial nor as to what judge signed the bill of exceptions. Under the rules and practice of this court the abstract must be sufficient to present every error and exception relied upon. . If it is not sufficient for a full understanding of the questions presented for decision the opposite party should file a further abstract, making the necessary corrections. The abstract on file must be assumed by this court to be accurate. (Gibler v. City of Mattoon, 167 Ill. 18; Rehfuss v. Hill, 243 id. 140.) Furthermore, assuming that this motion was heard and passed upon by Judge Hillskotter, the bill of exceptions containing this motion and affidavits in support is signed by Frank G. Plain as trial judge and O. K.’d as correct by counsel for appellee and states it contains all the evidence heard on the trial. Besides, counsel also signed a stipulation that the original bill of exceptions signed by Judge Plain should be incorporated into the record instead of a copy. This being so, the conclusion is inevitable .that counsel agreed that Judge Plain should sign this bill of exceptions and that it is correct, and they cannot now raise this question. (Lederbrand v. Pickrell, 167 Ill. 624; Brethold v. Village of Wilmette, 168 id. 162; Illinois Central Railroad Co. v. Jennings, 229 id. 608.) It is therefore unnecessary to consider whether counsel for appellant could raise this question for the first time in their briefs rather than on a motion to dismiss, or whether counsel for appellant is right in arguing that this question, of necessity, on account of the faulty petition herein, can be raised by a motion in arrest of judgment, regardless of any evidence submitted on the motion to dismiss.
Counsel for the appellant further argue that the court erred in refusing to admit testimony as to the valuations placed upon long-term leases for property in the vicinity of that sought to be condemned. The property here in question was vacant and unoccupied. Most of the evidence offered by appellant as to leasehold interests was as to property some distance away, covered with buildings. While there should be liberality in admitting evidence to enable the jury to determine value, (City of Chicago v. Lehmann, supra,) no general rules can be laid down that will govern in all cases. The degree of similarity that must exist between the property concerning which proof is offered and the property taken, and the nearness in respect of time and distance, are matters which must be left very largely to the sound discretion of the trial judge. (Aledo Terminal Railway Co. v. Butler, 246 Ill. 406; Illinois Central Railroad Co. v. Roskemmer, 264 id. 103; 2 Lewis on Eminent Domain,—2d ed.—sec. 443.) Evidence as to long-term leases of property in a great city, or as to the rental value of other property similarly situated, may or may not be competent, depending upon the particular facts of the case. Some of the leases offered here were only for fifteen years. That is hardly a “long-term lease,” as the phrase is usually understood. Under the decisions of this court, on the facts in this record we are not disposed to hold that the court erred in its rulings on the admission of evidence. See Atchison, Topeka and Santa Fe Railroad Co. v. Schneider, 127 Ill. 144; Pullman Co. v. City of Chicago, 224 id. 248; Geohegan v. Union Elevated Railroad Co. 266 id. 482.
The judgment of the county court will be reversed and the cause remanded for further proceedings in harmony with the views herein expressed.
Reversed and remanded.
