176 N.E. 546 | Ill. | 1931
Lead Opinion
On October 21, 1927, appellee, the South Park Commissioners, under an ordinance passed September 21, 1927, filed its petition in the circuit court of Cook county to condemn *370 for park purposes 6.44 acres of land, including the property at 3735 Vernon avenue, in Chicago, the legal title to which was in Peter R. Boylan. The property was on the east side of the street between Thirty-seventh street and Thirty-eighth street. The lot was 35 feet wide and was improved with a two-story brick duplex flat-building. The petition was for the condemnation of the north half of the lot and the north half of the building. The building contained a basement flat and first and second floor flats, each consisting of a kitchen, two bed-rooms and a dining-room. On September 12, 1927, a written offer for the property was made by appellee to Boylan and refused. Prior to that date Boylan entered into a contract for the sale of the north half of the property, and Simpson L. Simmons, who then owned the contract, was in possession at the time the petition was filed. On December 25, 1928, before the trial, Boylan died and his seven heirs were made parties defendant. The defendants filed objections to the petition, the third, fifth and eighth of which were stricken from the record on motion of appellee. There was a trial by jury on March 4, 1930, there was a verdict and judgment for $4900, and Simmons has appealed to this court.
It is insisted that the court improperly struck from the record objections 3, 5 and 8. The third objection was that appellee was without money or means to pay for the property and had made no appropriation therefor. The fifth objection was that appellee was without the necessary funds and had made no appropriation or levy to develop the property for park purposes or for any purpose within its charter powers. The eighth objection was that appellee had never adopted any plan for the use of the land nor made an appropriation for it, and that the court was unable to pass upon the sufficiency of the money available for the construction of the work. In Village of Depue
v. Banschbach,
The first objection filed to the petition was that all parties in interest were not made parties defendant. The second objection was that no legal offer of purchase had been made to the respective parties in interest. It was stipulated that Boylan was the owner in fee simple at the time the petition was filed and that appellant held a contract of purchase; that Boylan died a year after the filing of the petition and before the trial, and his heirs were made parties defendant. InSt. Louis and Cairo Railroad Co. v. Postal Telegraph Co.
Under section 2 of the Eminent Domain act one of the conditions under which condemnation may be instituted is that the compensation to be paid for the property taken can not be agreed upon by the parties interested. It was stipulated that on September 12, 1927, Boylan was the owner in fee subject to the contract to Simmons, who was in possession, and that on that date the general attorney for appellee sent a letter to Boylan making an offer of purchase, *373
which was refused by Boylan. It is insisted by appellant that no attempt at settlement was made with him, therefore the condemnation proceedings cannot be sustained. InThomas v. St. Louis, Belleville and Southern Railway Co.
Appellant insists that the court erroneously, of its own motion, without a request from either party, directed the jury to view the premises, in violation of section 9 of the Eminent Domain act, which provides that the jury shall at the request of either party go upon the land and examine the same. This contention is not sustained by the evidence. In the examination of the jurors, counsel for appellee repeatedly asked questions based upon the assumption that the jury were to view the premises. After the jury were sworn the court asked who was to pay the expenses of the jury on their view of the premises. The attorney for appellee stated that he would ask counsel for appellant to pay half of the costs, whereupon counsel for appellant replied, "Why should I pay half? My client isn't asking the jury to view the premises." The attorney for appellee then said he would pay all of the expenses. While there may have been no direct request from appellee that the jury view the premises, it is apparent that it was its desire and intention that the jury do so, and the court was not in error in permitting such view.
Appellant contends that between October 21, 1927, the time the petition was filed, and March 4, 1930, the time of the trial, the condition of the premises had changed so that a view by the jury was prejudicial to appellant and the court was without power to permit such view. In eminent domain cases a view of the premises is required at the request of either party, and such view is in the nature of evidence and may be considered by the jury in making up their verdict. (Sanitary District v. Johnson,
A part of the sixth instruction given on behalf of appellee told the jury that they should not consider anything but the evidence introduced before them, their view of the premises and the law as laid down in the instructions. Appellant insists that this instruction was erroneous because it practically told the jury that the evidence and the view of the premises were to be given equal consideration. The instruction did not tell the jury that the evidence introduced on the trial and their view of the premises should be given equal consideration. When the instruction is considered as a whole it is apparent that its only purpose was to inform the jury as to the evidence to be considered by them in arriving at their verdict. InDepartment of Public Works v. Griffin,
Complaint is made of the eighth instruction given on behalf of appellee, which told the jury that they should disregard a mere fanciful or speculative estimate of the value of the land made by any of the witnesses if they believed from the evidence that the values testified to by any of the witnesses were fanciful or speculative. This instruction did not refer to the credibility of any witness. It merely cautioned the jury against the consideration of evidence based upon improper elements. In East St. Louis Light and Power Co. v. Cohen,
Complaint is made of the refusal of the court to give certain instructions offered on behalf of appellant. Instruction "A," offered on behalf of appellant, told the jury that the information derived from their personal view of the premises was not to be considered as evidence in the case; that the purpose of the view was to enable them to better understand the issues and apply the evidence, and that they were not authorized to consider any fact bearing upon the merits of the controversy derived from such view unless supported by the evidence. In Kankakee Park District v. Heidenreich,
Instruction "B," offered on behalf of appellant, told the jury that the owner was entitled to the value of the property for the highest profitable use for which it was available; that the jury might consider a capacity of such *377 property for a future use which they believed from the evidence might be anticipated with reasonable certainty though dependent upon circumstances which might possibly never occur, if from the evidence the jury believed that such facts enhanced the market value of the property sought to be taken. Instruction "C" told the jury that the owner was not required to make any pecuniary sacrifice, and that the municipality should pay what the property was reasonably worth for its highest and best use. Both of these instructions stated correct rules of law, but there was no evidence on which to base instruction "B" and both instructions were covered by other instructions given. The witnesses on both sides agreed that the highest and best use to which the property was adaptable was for residential purposes, which was the purpose for which it was being used at the time the petition was filed. Appellant himself testified to this fact, therefore there was no error in refusing instruction "B." The subject matter of these instructions was covered by instruction 2 given on behalf of appellant, which told the jury that even if the property was not being put to its highest and most advantageous use, the compensation to be awarded must be for the highest and best value as shown by the evidence. Instruction 4 given on behalf of appellant told the jury that just compensation meant a full indemnity for the loss sustained by the owner — that is, the payment of such a sum as would make the owner whole, so that on the receipt of the compensation he would not be richer or poorer because his property had been taken.
Complaint is made of other instructions refused on behalf of appellant but it will not be necessary to consider them in detail.
V.K. Brown, a witness called on behalf of appellee, testified as to the population of the territory around the prospective park and the size, location and equipment of the various small parks under the jurisdiction of appellee. He *378 also testified how this proposed park was to be equipped with baths, swimming pools, lockers, playgrounds, etc. On cross-examination he stated that he did not know of any plan similar to the one he had described which was to be adopted by appellee, and that in such a park appellee had spent approximately $400,000 on buildings. He was asked if he knew of any official appropriation of $400,000 by appellee for the park in question. Objection was sustained to this question and the ruling is assigned as error. Brown was called as a witness by appellee on the issue as to the necessity for the acquisition of the land in question. He did not testify in chief as to objections 3, 5 and 8. Appellee did not ask him with reference to any appropriation, and the objection was properly sustained upon the ground that it was not proper cross-examination.
George F. Iliff, a witness for appellee who was a real estate agent, testified to a similar sale made by him in the vicinity for about $5000. He testified that he had no knowledge as to whether the owner who sold this property was compelled to sell. A motion was made by appellant to strike this evidence on the ground that it did not show that the sale was voluntary. InChicago and Western Indiana Railroad Co. v. Heidenreich, supra, it was held that it was error to refuse to admit evidence of a sale of similar property where it appeared that an individual made the purchase for an undisclosed railroad company and there was no evidence that the sellers were subject to any influence compelling them to sell. In City of Chicago v. Mullin,
Appellant attempted to prove by the witness Enright, a contractor and builder, what it would have cost to put the *379 building in first-class repair in October, 1927. An objection was sustained to this evidence and this ruling is assigned as error. The value of the property in this case was to be determined from its condition at the time of the filing of the petition. The cost of putting it in repair was immaterial, and the court did not err in rejecting such testimony. Enright also testified that the only time he saw the building was in March, 1930. He was asked whether he could tell from his experience as a contractor and from his examination at that time as to the condition of the building in 1927. An objection was properly sustained to this question because the witness had no basis for an answer. There was evidence from other witnesses who knew the condition of the building at the time the petition was filed, and the conjecture of this witness was immaterial.
Appellant insists that the verdict is against the weight of the evidence. The evidence shows that the premises were sold in 1923 by Boylan to Mont McGill under a contract for a deed reciting a consideration of $6250. At the time the contract was executed $200 was paid, $650 was to be paid on May 1, 1923, and the balance was to be paid at the rate of $50 and interest on the unpaid balance on the first day of each month. A deed was to be executed when $4250 had been paid. The contract was assigned several times and it finally became the property of appellant in February, 1926. Appellant testified he paid $1200 when the contract was assigned to him and a year later paid $1300. There is no evidence to show what was the balance due at the time of the assignment to appellant. The statement of payments on the reverse side of the contract is not in evidence. The two initial payments of appellant and his subsequent monthly payments made a total of $3100. Appellant testified to certain improvements made by him amounting to about $235. In addition thereto an alley adjoining the property was paved. There were five installments of $15 each, two of which are unpaid. There was *380
an assessment for widening a street, but the amount is not shown and some of the installments are unpaid. When appellant bought the premises he was receiving $20 a month for the basement flat, $30 a month for the top floor and he was occupying one room on the first floor. He was permitted to express his opinion that the value of the property was $7000. The amount which appellant had invested in the property at the time the petition was filed was substantially the amount of the verdict, or less. Cavaney, a witness for appellant, testified that the property was worth $6500. Iliff, a real estate agent who had sold other property in the neighborhood similarly situated, testified that in his opinion the property was worth $4750. McClellan, another witness for appellee who was in the real estate business in the vicinity and had sold property similarly situated, testified that in his opinion it was worth $4500. The verdict was for $4900. Damages awarded will not be disturbed unless the verdict is clearly and palpably against the weight of the evidence, and this is especially true where the jury viewed the premises. (City of Chicago v. McGowan,
We find no reversible error, and the judgment is affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Partlow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Judgment affirmed. *381