#### The Chicago and Northwestern Railway Company v. The City of Chicago.

Filed at Ottawa

March 29, 1890.

1. Eminent domain—strict construction. Private property can only be taken for public use by consent of the owner, or by a proceeding to condemn, in strict conformity with law. The fact that the owner may interpose a groundless defense will not justify a departure from the statutory requirements.

2. Same—of the petition—requisites as to description of property sought to be taken or damaged. The statute (chap. 24, art. 9, sec. 5,) requires that the petition for the condemnation of land for a public improvement shall contain a reasonably accurate description of the lots, the parcels of land and property which are sought to be taken or damaged.

3. Same—description must control—throughout the proceedings. The property sought to be condemned for public use should not only be described in the petition with reasonable certainty, but that description should be followed in the subsequent orders, and in the verdict of the jury'and judgment of the court.

4. So where the ordinance for widening a street, and the petition for the condemnation of land for such purpose, describe the land as all that part of a lot or lots lying north of a diagonal line through the lots, the city can not, on the hearing, abandon such description, and condemn land differently situated. On such a petition the city can not condemn land for a new street.

Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

Mr. W. C. Goudy, for the appellant:

There was no ordinance in force authorizing the condemnation of the property described in the petition. Sec. 18, art. 3, of city law; Guild v. Chicago, 82 Ill. 472.

The city was bound to follow the description contained in, the petition and ordinance. A variance therefrom is fatal., There is no description of the property in the judgment.

*373There was no power to take the land for a street, as it was a part of the right of way of the railway company, occupied by its main tracks. Railroad Co. v. Railroad Co. 122 Ill. 477.

Mr. Jonas Hutchinson, and Mr. Francis E. Halligan, for the appellee:

The city had the right to open a street in or across appellant’s right of way. Rev. Stat. chap. 24, art. 5, sec. 1, par. 89.

Railroad right of way is subject to the power of eminent domain. Railroad Co. v. Railroad Co. 96 Ill. 274; Railway Co. v. Railroad Co. 97 id. 506; Railroad Co. v. Railroad Co. 113 id. 156.

Mr. Justice Wilkin

delivered the opinion of the Court:

This was a proceeding in the Superior Court of Cook county, to condemn private property for the purpose of widening a street. By section 1 of an ordinance passed by the common council of the city of Chicago it had been provided, “that George street be ordered widened between Carpenter street and May street, by condemning therefor all that part of lots 24, 26 and 27, assessor’s division of part of block 6, Ellston’s addition to Chicago, lying northerly of a line drawn from the north-west corner of said lot 27 to a point in the east line of said lot 24, six feet north of the south-east corner thereof, in accordance with the plan hereto annexed.” The line described as drawn from the north-west corner of lot 27 to a point in the east line of lot 24, is a diagonal line, running from north-west to south-east. The petition describes the parts of lots to be taken or damaged, as all that part of lots 24, 26 and 27 lying northerly of said diagonal line. Appellant is alleged to be the owner of lot 24. This lot is bounded on the east by Carpenter street, and on the north by George street, which, by the ordinance, is ordered widened. That part of it sought to be condemned, as described in the ordinance and petition, is 34 feet 2 inches wide at the east end, and 11t605q- feet wide at the *374west end. In making its proof on the hearing, the city divided this part of the lot into two subdivisions, asking the witnesses the value, first, of a strip 19^-0 f06* wide immediately north of said diagonal line, and then of the remainder thereof. The first of these subdivisions was estimated by petitioner’s own witnesses to be worth from $1000 to $1050, and the remainder from $250 to $350. The verdict of the jury was as follows:

“We, the jury, find the just compensation to b'e paid to the owner or owners of the following described lots, pieces and parcels of land and property sought to be taken or damaged for the proposed improvement, as follows, to-wit: To the owner or owners of all that part of lot 24, in assessor’s division of part of block 6, of Elision’s addition to Chicago, lying northerly of a line drawn from the north-west corner of lot 27, in said division, to a point in the east line of said lot 24 six feét north of the south-east corner thereof, (except that part of said lot 24 lying northerly of a line 14^%- feet distant from and parallel with said first mentioned line, and northerly thereof,) one thousand dollars ($1000). * * * And we, the jury, find that no other property will be taken or damaged by the proposed improvement.”

Motion by appellant for a new trial being overruled, judgment was rendered on the verdict, as follows:

> “And the court being fully advised in the premises, it is considered and adjudged by the court that the respective sums of money awarded by the jury, in and by their said verdict, to the owners of the said lots, pieces and parcels of land and property, are-, and each of them is, a just compensation to the owner or owners thereof for the taking and damaging of said lots, pieces and parcels of land and property, by the proposed public improvement mentioned in said petition; and said owner or owners shall, respectively, accept from said city of Chicago such sum or sums as are so awarded on account of the Jots, pieces and parcels of land and property so owned by him, her, it or them, respectively, all of said lots, pieces and *375parcels of land and property being in the city of Chicago,■county of Cook, and State of Illinois; and that upon payment into this court, by the said city of Chicago, of said several sums ■of money for the use of the owner or owners of any or each of the said lots, pieces and parcels of land, and property, or upon proof made to or before this court that the said sums of money, or any of them, have been paid to the owner or owners, respectively, of said lots, pieces and parcels of land and property, the said city of Chicago shall have the right, at any time thereafter, to take possession thereof and damage the property in respect to which such compensation shall have been so made or deposited.”

Appellant brings the case up. Several grounds of reversal are urged. It is important to notice but two of them.

It will be seen, from the foregoing statement, that the improvement for which property was sought to be condemned, as provided by ordinance, was the widening of George street, and that its width was to be increased by adding thereto all that part of lots 24, 26 and 27 northerly of the diagonal line therein ■described. The petition very properly described the property to be taken as all that part of said lots, the statute requiring that it should contain a reasonably accurate description of the ■lots, parcels of land and property which would be taken or. damaged. (1 Starr & Curtis, art. 9, sec. 5, chap. 24, p. 488.)' ■On the hearing, however, the ordinance and petition were wholly abandoned as to the description of property to be condemned, and an effort made to condemn a strip through lot 24, northerly of said diagonal line, 19 feet wide. Clearly, that ■could not be done,—first, because no such improvement was provided for in the ordinance; and second, because the petition asked for no such condemnation. It will readily be seen that condemning the 19/^ feet of said lot northerly of said line, would not have widened George street at all at Carpenter,' ■street, but would have left a triangular piece of lot 24 in its, north-east comer, between George street and that part con*376demned. In other words, what the city sought to do on the-hearing, was to condemn a part of lot 24 for a new street from.Carpenter to George, instead of merely widening George street..

Again, the verdict of the jury not only ignores 'the description in the ordinance and petition, but all the evidence in the-case, and finds just compensation, only, for a strip of said lot 24, 14^5- feet wide, northerly of said line. The judgment, however, is, that the sum of money awarded by the jury “is a-just compensation to the owners thereof for the taking and damaging of said lots, pieces and parcels of land and property™ by the proposed public improvement mentioned in said petition.” The property sought to be condemned should not only-be described in the petition with reasonable certainty, but that, .description should be followed in the subsequent orders, and-in the verdict of the jury and judgment of the court. Galena and Chicago Union Railroad Co. v. Pound et al. 22 Ill. 399 S. and I. S. E. Railway Co. v. Turner, etc. 68 id. 187.

It is contended by counsel for appellee, that notwithstanding-these irregularities, appellant should not be allowed to take-advantage thereof, because, as is said, they were brought about by its unwarrantable contention that a part of said lot was-held by.it as railroad right of way, and was not subject to condemnation. In the present state of the record, we do not feel called upon to decide whether or not that claim was without foundation; but it certainly can not be seriously contended' that because appellant may have interposed a groundless defense, the city might therefore take its property for public use-without proceeding in conformity with law. Private property can only be taken for public use by consent of the owner, or-by a proceeding of condemnation in strict conformity with law. (Tlyslop et al. v. Finch, 99 Ill. 183, and cases cited.) Here the-statutory requirements have been wholly disregarded.

The judgment of the Superior Court is reversed, and the.cause remanded.

Judgment reversed.