#### Jay C. Newman et al. v. The City of Chicago.

Filed at Ottawa October 29, 1894.

1. Practice—in Supreme Court—petition for special assessment is part of record. The supplemental petition for special assessment in condemnation proceedings should be made a part of the record.

2. Special assessments—judgment in condemnation proceedings final. The judgment in the antecedent condemnation proceeding is final as to the question of a prior dedication, and is not subject to collateral attack in the supplemental assessment proceedings.

3. Same—cannot exceed benefits. A special assessment cannot exceed the benefits the property derives from the improvement, and when the special benefits are less than the total cost, the excess must be assessed against the village or city.

4. Same—assessment against city where total cost is to be raised by special assessment. Although an ordinance provides that the cost of the improvement shall be raised by special assessments alone, the commissioners may nevertheless assess a portion of the cost to the city or village, and it is necessarily implied that such portion shall be paid by general taxation.

5. Same—description of improvement. In determining the sufficiency of the description of the improvement contemplated, the entire ordinance should be considered.

6. Judgment—words in verdict and judgment rejected as surplusage. Where property is described in a petition for condemnation as “the east seven-eighths of lot 8,” and in the verdict and judgment as “the east seven-eighths feet of lot 8,” the word “feet” will be rejected as surplusage, and the judgment will stand as if the description was the same as in the petition.

Appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.

Mr. R. M. Wing, and Mr. Frank R. Grover, for the appellants:

Where an acceptance on the part of the town is deemed necessary, such acceptance need not be by any formal proceeding, but may be implied from its acts recognizing the road as a public highway. Angell on Highways, (3d ed.) sec. 162; 5 Am. & Eng. Ency. of Law, 415.

*470The public is an ever-existing grantee, capable of taking dedications for public uses. Warren v. Jacksonville, 15 Ill. 236; Alvord v. Ashley, 17 id. 363.

As to what slight circumstances will constitute an acceptance by the public or the municipal authorities, see Warren v. Jacksonville, 15 Ill. 236; Alvord v. Ashley, 17 id. 363; Waugh v. Leech, 28 id. 491; Rees v. Chicago, 38 id. 336; Hiner v. Jeanpert, 65 id. 430; Forbes v. Balenseifer, 74 id. 187; Dunn v. Pickard, 24 Ill. App. 423.

No one is bound by an adjudication to which he was not a party. Thomas v. People, 107 Ill. 517; Gage v. Busse, 114 id. 589; Freeman on Judgments, secs. 335-337.

An ordinance failing to prescribe the mode of making compensation is void and proceedings under it a nullity, and no mode except that provided by the ordinance can be followed. Hyde Park v. Thatcher, 13 Ill. App. 616; Watson v. Chicago, 115 Ill. 80.

The adoption of a mode of payment in an ordinance excludes the idea of payment in any other way, and where the statute provides a mode of exercising a given power it implies the exclusion of all other methods. Chicago v. Shepard, 8 Ill. App. 607; People v. Railroad Co. 62 Ill. 38; Smith v. Railroad Co. 68 id. 191; People v. Hyde Park, 117 id. 470.

A record may be amended to make it state what happened, but orders cannot be entered nunc pro tunc merely to cure mistakes of parties, counsel or court. Ogden v. Lake View, 121 Ill. 422.

Amendments to the record should not be allowed after the close of the term of court at which the record was made, unless there are some memoranda, minutes or notes of the judge, or something appearing on the records or files, to amend by. People v. Anthony, 129 Ill. 218.

After term at which final judgment is rendered the court has no power over the judgment, except to amend it in form or to correct clerical errors. Goucher v. Patterson, 94 Ill. 525; Railroad Co. v. Holbrook, 72 id. 419; Windett v. *471 Hamilton, 52 id. 180; Savings Institution v. Nelson, 49 id. 171; McKinley v. Buck, 48 id. 488; Troutman v. Hill, 5 Ill. App. 396; Bryant v. Vix, 83 Ill. 11.

The question of dedication in suits at law has been repeatedly held to be a question to be fairly left with the jury, under proper instructions from the court. Harding v. Town of Hale, 61 Ill. 192; Waugh v. Leech, 28 id. 488; Daniels v. People, 21 id. 439.

It is only third persons who have the right to collaterally impeach judgments. They are accorded this right because, not being parties to the action, nothing determined by it is, as to them, res judicata. Freeman on Judgments, (3d ed.) secs. 334-337.

Mr. M. W. Robinson, Mr. Lockwood Honoré, Mr. Adolph Kraus, Corporation Counsel, and Messrs. Ma-her & Gilbert, for the appellee:

In the trial of special assessment proceedings the question of dedication is not a proper question for the consideration of the court, nor should any evidence be heard to show a dedication in a special assessment proceeding. Goodwillie v. Lake View, 137 Ill. 51.

To constitute a dedication of land to public use, there must be an offer to dedicate, evidenced by words, acts or permission, and the offer to dedicate must be accepted by the proper municipal authorities. There can be no complete dedication until there is an offer by the, owner and an acceptance by the proper municipal authorities. Princeton v. Templeton, 71 Ill. 88; Trustees v. Walsh, 57 id. 370; Grube v. Nichols, 36 id. 96; Littler v. Lincoln, 106 id. 354; Winnetka v. Railroad Co. 124 id. 235.

The evidence to prove dedication must be clear and satisfactory, both as to the offer to dedicate and' its acceptance by the proper authorities. To doubt as to either of these conditions is to decide against the alleged dedication. Grube v. Nichols, 36 Ill. 96; Trustees v. Walsh, 57 id. 370; Kyle v. Logan, 87 id. 624; Littler v. Lincoln, 106 id. *472369; Gentleman v. Soule, 32 id. 272; Baker v. Johnson, 21 Mich. 346; Forbes v. Balenseifer, 74 Ill. 187; Irving v. Ford, 65 Mich. 249; Insurance Co. v. Littlefield, 67 Ill. 373.

To sustain the theory of highway by prescription the proof must show a continuous, uninterrupted user, adverse to the owner and under a claim of right, for twenty years. Gentleman v. Soule, 32 Ill. 272; Warren v. Jacksonville, 15 id. 236.

The judgment in a condemnation case is in the nature of a judgment in rem, and is binding against all the world. 21 Am. & Eng. Ency. of Law, 274.

As to the fact that the city did not provide specifically in the ordinance for the payment of that part of the cost which should be assessed against the city, it is to be noted that this court has previously held, in Kimble v. Peoria, 140 Ill. 157, that it is no objection to-a special assessment that there is no appropriation to pay the city’s part of the cost of an improvement.

Equality in special assessments is no longer required. Murphy v. People, 120 Ill. 236; Walters v. Town of Lake, 129 id. 29.

Mr. Justice Magruder

delivered the opinion of the court:

This is an appeal from a judgment of the Superior Court of Cook County, confirming a special assessment in a supplemental proceeding under section 53 of Article 9 of the City and Village Act, instituted for the purpose of raising the amount necessary to pay the compensation theretofore awarded for property taken by condemnation for opening Sixty-fifth Court between Stewart Avenue and Honoré Street. The supplemental petition is not in the record; and,- although its omission is not referred to by counsel on either side, we allude to it for the purpose of deprecating the practice of making up the records in this class of cases without inserting the supplemental petition. (Ayer v. City of Chicago, 149 Ill. 262; Guild, Jr. *473v. City of Chicago, 82 id. 472). Section 53 not only provides for filing said petition and prescribes the scope of its prayer, but also states that the court shall have power to appoint the three commissioners “after” said petition shall have been filed; showing that the petition lies at the foundation of the supplemental proceeding.

The main objection discussed by counsel for appellants is, that the land embraced in the petition for condemnation had been dedicated to the public for a highway or street prior to the institution of the condemnation proceeding. In the first place, it is claimed that the question of a prior dedication should have been submitted to a jury for determination, and that the court erred in overruling a motion made by appellants for such submission, and in hearing evidence and deciding the question without a jury. In the recent case of Gage v. City of Ghicago, 146 Ill. 499, we decided, that an objection raising that question does not present an issue, which the property owner is entitled to have submitted to a jury; and we see no good reason for not adhering to the decision.

Here, as in the Gage case, supra, the trial court permitted the parties to introduce a large mass of evidence upon the question of such prior dedication. This evidence was somewhat conflicting, some of it showing circumstances which tended to establish that there had been a dedication, and some of it showing circumstances which tended to negative the fact of a dedication. After a careful examination of all the testimony, we are not prepared to say that the trial judge did not reach a correct conclusion in finding that there had been no dedication, if, indeed, he was bound to consider the evidence at all, which was introduced upon that subject.

The appellee has assigned a cross-error to the effect, that the court below érred in permitting proof to be heard on the question of dedication. We are inclined to think that the cross-error is well assigned. The supplemental proceeding, provided for in section 53, is collat*474eral to the condemnation proceeding. The condemnation judgment is final and conclusive as to the parties thereto, until it is reversed or vacated. Hence, the questions properly arising in the condemnation proceeding can not be relitigated in the supplemental proceeding, the object of the latter being merely to raise funds to pay the judgment of condemnation already entered. (Goodwillie v. City of LakeView, 137 Ill. 51; Gage v. City of Chicago, supra). The objection, that there was a former dedication amounts to the assertion, that the property condemned was not private property, but belonged to the city or public. The question, whether the property condemned was private property or not, was an issue involved in the condemnation proceeding. The city or village has power to condemn private property only under article 9, and not public property. Section 4 of article 9 authorizes the petition for condemnation to be filed, when an ordinance is passed for the making of a local improvement, “the making of which will require that private property be taken or damaged for public use;” and,.by the terms of the same section, the prayer of the petition must be, that “the just compensation to be made for private property to be taken or damaged for the improvement * * * shall be ascertained by a jury.” Section 14 of article 9 provides, that “any final judgment * * * rendered •x- * -x- Up0n any finding * * * of any jury or juries shall be a lawful and sufficient condemnation of the land or property to be taken,” etc. (1 Starr & Cur. Ann. Stat. pages 488, 491).

It would seem to follow, that the judgment in condemnation, not being subject to collateral attack in the' supplemental proceeding, must be ¿regarded as a determination of the question sought to be raised by the objection now under consideration. It is not made to appear, that the court rendering the judgment did not have jurisdiction as to the subject matter, and over the proper parties.

*475It is said, that the ordinance, providing for the opening of the street is invalid, because it does not provide, that, in case the cost of the improvement exceeds the amount which can be assessed as special benefits against the property, the balance of the cost shall be raised by general taxation. In other words, it is claimed that the ordinance makes only partial provision for the payment of the cost of the improvement. The second section of the ordinance is as follows : ■

> “Section 2. That the cost and expense of said improvement shall be defrayed by a special assessment upon the property specially benefited thereby, to the extent of such special benefits, such special assessment to be made and levied in accordance with the provisions of article nine (9) of an act of the General Assembly of the State of Illinois entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, A. D. 1872.”

The total cost of the improvement was $15,334.35, of which, as shown by the report of the commissioners, $15,032.00 was assessed against property specially benefited, and $302.35 against the city. It is said that the ordinance contains no provision which covers, or authorizes the payment of, the sum of $302.35.

Usually ordinances of this character contain a clause, that the amount, if any there shall be, over and above the special benefits to the property shall be paid for by general taxation. (Watson v. City of Chicago, 115 Ill. 78). Is such a clause necessary to the validity of the ordinance? Section 2 of article 9 provides, that, “when any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment, or by special taxation of contiguous property, or general taxation, or both.” We have held, that one improvement cannot be made by both special assessment and special taxation, yet that either of those methods may be combined with general taxation. (Kuehner *476v. Freeport, 143 Ill. 92). But, while this is so, section 2 certainly authorizes a local improvement to be made by special assessment alone, as well as by special assessment and general taxation combined. (Ricketts v. Village of Hyde Park, 85 Ill. 110). A special assessment cannot exceed the benefits the property clerives from the improvement. (City of Sterling v..Galt, 117 Ill. 11). Wherevér the ordinance provides for making the improvement by special assessment, it may turn out that the special benefits will be less than the total cost; and, when such is the case, the excess must be assessed against the city or village. By section 23, the commissioners take an oath to assess the cost of the improvement upon the city or village, and the property benefited. By section 24 the commissioners estimate what proportion of the total cost will be of benefit to the public, and what proportion will be of benefit to the property to be benefited, and apportion the same between the city or village and such property, so that each may bear its relative equitable proportion. Hence, the power to make the improvement by special assessment alone necessarily involves and includes the power, through the commissioners, to apportion a part of the cost, that will be of benefit to the public, to the city ór village. Here, section 2 of the ordinance virtually adopts article 9, and makes section 24 of that article a part of the ordinance. We are, therefore, inclined to hold, that where the ordinance provides for making the improvement by special assessment alone, and especially where it provides specifically and in'terms, that the special assessment must be made and levied in accordance with article 9, it thereby also provides, by necessary implication, that the excess of the cost over the special benefits is to be paid by general taxation,- for whatever part of the cost is apportioned to the city can only be paid in that way. (Walters v. Town of Lake, 129 Ill. 23; Kimble v. City of Peoria, 140 id. 157).

*477It is objected, that the ordinance does not specify the nature, locality and description of the improvement, because, by providing that the court or street be opened “between Stewart Avenue and Honoré Street,” it does not specify at what point between those two streets the street to be opened is to begin, nor at what point it is to end. There would be force in this objection, if the ordinance contained no other designation of the locality of the improvement than that already indicated; but its first section provides that “Sixty-fifth court be and the same is hereby opened between Stewart Avenue and Honoré Street by the condemnation for that purpose of the following described lots, pieces and parcels of land, towit: the south 30 feet of lots 7 and 8 and the north 30 feet of lots 9 and 10 in block 11; also, the south 33 feet of lot 8 and the north 30 feet of lots 9 and 10 in block 12 in Linden Grove, a subdivision of the N. W. 35 acres,” etc. A reference to the plat of the subdivision shows that the south 30 feet of lots 7 and 8 and the north 30 feet of lots 9 and 10 in block 11 is a strip of land 60 feet wide running from Stewart Avenue on the east westward to Wright Street on the west; and that the south 33 feet of lot 8 and the north 30 feet of lots 9 and 10 in block 12 is a strip of land 63 feet wide running from Wright Street on the east westward to Honoré Street on the west, not including the south half of lot 7 in said block 12, being 33 feet wide and 234 feet long at the west end of the proposed street, which part of said lot 7 had been previously dedicated by recorded plat. We think that the description sufficiently designates the extent of the land sought to be condemned.

It is claimed, that the court erred in permitting the verdict and judgment in the condemnation proceeding to be amended after the term, at which the judgment was rendered, had passed. By the verdict compensation was awarded “to the owner or owners of the south 33 feet of the east seven-eighths feet of lot 8, block 12, $1980.00.” The judgment of condemnation followed the verdict. The *478amendment permitted the word, “/eei” to be stricken out, so as to make the verdict and judgment read: “to the owner or owners of the south 33 feet of the east seven-eighths of lot 8, block 12, $1980.00.”

We deem it unnecessary to discuss the question, whether the court had- or had not the power to allow this amendment after the term had passed, because we think that the verdict and judgment without amendment ought to be construed to have no other or different meaning than they would have after the amendment. If this is so, the amendment was immaterial, and no ■ substantial change in the judgment was produced by it.

If the description of lands in conveyances and judicial proceedings can be made certain by rejecting that which is repugnant or false, it will be done, so as to effectuate the intention; and a subordinate feature or circumstance of the description will sometimes be rejected as surplus-age, in order to allow the complete and correct description to stand alone. (Holston v. Needles, 115 Ill. 461; Swift v. Lee, 65 id. 336; Kruse v. Wilson, 79 id. 233).

In interpreting the meaning of the verdict and judgment in this case, the court will look to the petition- in the condemnation case, and the copy of the ordinance thereto attached. The ordinance provides, that the street shall be opened by condemning “the south 33 feet of lot 8.” Lot 8 is 234 feet long. The petition asks for the condemnation of lot 8 by the following descriptions: “the south 33 feet of the west one-eighth of lot 8,” and. “the south 33 feet of the east seven-eighths of lot 8, block 12.” The only award as to lot 8 made by the verdict besides that above stated is as follows : “to the owner or owners of the south 33 feet of the west one-eighth of lot 8, block 12, $175,00,” that is to say, a strip 33 feet wide and 29.25 feet long. It is evident, that the insertion of the word, “feet,” after the word “seven-eighths” was a mere accident • or mistake in reducing the verdict to writing. Otherwise, the verdict awards compensation for a strip whose *479length is only 29.25 feet plus seven-eighths of a foot, or 30 feet and one-eighth of a foot (80¿-), while the ordinance calls for the condemnation of a strip whose length is 234 feet.

Section 5 of said article 9 provides, that the petition for condemnation shall contain “a reasonably accurate description of the lots, parcels of land and property which will be taken or damaged, and the names of the owners and occupants thereof so far as known,” etc. Section 7 directs, that a jury shall be empanelled “to ascertain the just compensation to be paid to all of such owners and occupants aforesaid.” Under these sections it is clear, that the jury must ascertain the compensation to be paid to the owners of the property described in the petition. The property described in the petition here is “the east seven-eighths of lot 8,” or 204.75 feet, and not “the east seven-eighths feet of lot 8,” which is only seven-eighths of one foot. When the verdict is read in connection with the petition, the meaning and intention of the jury are clear, and require a rejection of the word, “feet,” from the description as repugnant or false, and as surplusage. Section 8 of article 9 provides, that, where compensation is awarded by a jury for property not described in the original petition, a statement shall be filed, describing such property. Here, no statement was filed describing “the east seven-eighths feet of lot 8.” The verdict would be absurd upon its face, if its intention was to award $175.00 for 29.25 feet at the west end of a strip 234 feet long, and $1980.00 for seven-eighths of a foot at the east end of said strip.

We find no error in the giving or refusal of instructions, or in the admission or exclusion of evidence.

There being no error in the record sufficient to justify a reversal, the judgment of the Superior Court is affirmed.

Judgment affirmed.