Schreiber v. Chicago & Evanston Railroad

Mr. Justice Scholfield delivered the opinion of the Court: This was a proceeding in the Superior Court of Cook county, to condemn a strip of ground, fifty feet in width, over a certain block in the city of Chicago, for right of way for a railroad. The fee in the ground sought to be condemned was in Henry W. Kingsbury. While he was a minor, his guardian executed ground leases of the block, as follows: From May 1, 1879, to May 1,1881, to Charles Mears; from May 1, 1881, to May 1, 1882, to Schreiber & Knaak, the appellants; from May 1,1882, to December 15,1883, to the same parties. Immediately after the execution of the lease to Mears, he erected on the part of the block of which condemnation is sought, certain brick and framed buildings to enable him to carry on a planing-mill and furniture factory, and he used the buildings for that purpose until the 20th of January, I860, when he sold the buildings and his leasehold interest to Schreiber & Knaak, the appellants. After this time the appellants used the buildings for the same purpose. Neither of the leases .contained any provision with reference to the improvements, nor mentioned that there were improvements. Kingsbury became of age on the 15th of December, 1883, the day on which the last lease expired. The appellants did not surrender possession to Kingsbury, but remained in possession, and it is stipulated they are now holding over under said leases, and paying rent to Kingsbury. The petition was filed on the first of May, 1883, and there was a hearing as to the rights of Kingsbury, and the compensation to be paid to him, at the May term of the court, 1884, but the claim of appellants was not heard until the May term, 1885. The court found, at that time, that the amount awarded to Kings-bury had been paid to him, and that appellee was entitled to possession, except as against the claim-of appellants. The court also then further found, and so held, that appellants had no further right of possession as lessees, and that they could not recover for the value of the improvements and the cost of the removal of the machinery, and for damage to their business. Our statute provides that “the judge or court shall, upon such report, ”—i. e., report of the jury assessing damages,— “proceed to adjudge and make such order as to right and j ustice shall pertain, ordering that petitioner enter upon such property and the use of the same, upon payment of full compensation, as ascertained as aforesaid; and such order, with evidence of such payment, shall constitute complete justification of the taking of such property.” (Eev. Stat. 1874, p. 477, sec. 10.) And so we have held, that until the compensation is paid, there is no right to enter upon the premises, —that until that time, the company seeking condemnation has the right to abandon the location and adopt another. St. Louis and Southeastern Railway Co. v. Teters, 68 Ill. 144; Chicago and Iowa Railroad Co. v. Hopkins, 90 id. 317; Chicago v. Barbian, 80 id. 482; South Park Commissioners v. Dunlevy, 91 id. 49. We can not, therefore, hold, as counsel for appellants contend should be held, on the authority of Muller v. Earl, 35 N. Y. Sup. Ct. (Jones & Spencer,) 472, that the filing of the petition to condemn was such an appropriation of the buildings that appellants could not lawfully remove them. As we said in Chicago v. Barbian, supra: “The rights of the parties are correlative and have a reciprocal relation, the existence of the one depending on the existence of the other. When the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation; but since no vested right can be acquired in the property, without the owner’s consent, until compensation shall be paid, it must follow there can be no vested right in the compensation until after the amount is paid. ” This was quoted with approval in South Park Commissioners v. Dunlevy, supra. Quite clearly, so long as the company is not bound to the location,'but may change it and adopt another, the land owner can not be bound. He may, until the selection by the company becomes binding, do any act that an owner may do with his own, not materially interfering with the condemnation proceedings and the object sought to he accomplished thereby. From this it must follow that appellants were at perfect liberty to enter upon the premises at any time before the expiration of the lease on the 15th of December, 1883, and remove their machinery and buildings, assuming, as they claim, that the latter fall within the description of “trade fixtures.” It did not require, as- seems to be supposed, notice: to terminate the lease on the 15th of December, 1883. Our statute provides that “when the tenancy is for a certain period, and the term expires by the terms of the lease, the tenant is then bound to surrender possession, and no notice to quit or demand of possession is necessary.” Eev. Stat. 1874, sec. 12, chap. 80. It does* not appear "that there was any covenant of renewal, and hence, at the time the petition was filed, the only rights the tenants had were to enjoy the unexpired term, and remove their fixtures. Could they, after the petition was filed and summons served, and they thus had notice of the intention to appropriate the property to the uses of the right of way, and that the requisite steps were then being taken to execute that intention', acquire new rights in th.e use of the property, adverse to the petitioners ? We think not. Notwithstanding that until the compensation is paid there is no right to enter into possession of the premises, yet when the compensation is paid the right vested, in the company relates back to the time of the filing of the petition; and upon that principle we have held that the compensation to be paid in-such cases must be fixed by the.valuation of the property at the date of the-filing of .the petition. (South Park Commissioners v. Dunlevy, supra.) Any rights in the property condemned, the tenants may have obtained by holding over, as against Kingsbury, they obtained pendente lite, and, therefore, subordinate to the rights of the petitioners. We know of no reason why they might not have removed their buildings, etc., at any time, while, as between them and the owner of the fee, they were trade fixtures, which are personal property in legal contemplation. The proceeding is not to condemn personal property, and the buildings,, etc., could only be affected by it when they became legally a part of the soil to which they are attached, so as to pass with the title to it, as realty. When the petition was filed, there were some six months of an unexpired term of which the tenants could not have been deprived without their consent; but with the company’s consent, as implied by their not molesting them, they had the full enjoyment of that unexpired term. It is not reasonable that a party should ask to be compensated for the loss of an unexpired term, when, in fact, he has had the full enjoyment of his entire term. What these tenants would have been entitled to had they quit their possession when the summons was served, is a question not presented by this record. The contention that the making of the tenants parties, is a recognition of their interests, is sufficiently answered by the fact that when this petition, was filed these tenants had an unexpired term in the premises, but having enjoyed that term before the assessment of damages, that interest had then ceased. The judgment is affirmed. ' Judgment affirmed.