Johnson v. Metropolitan West Side Elevated Railroad

Per Curiam: Appellee herein filed its petition, under the Eminent Domain act, to condemn certain premises of appellant, situated in Chicago, for its right of way. Johnson, the appellant, was awarded damages to the extent of §62,959.10, and appellee took its appeal to this court from that judgment. After the expiration of the term, and after filing its appeal bond, appellee, without paying or tendering the compensation awarded, either to appellant or the county treasurer, entered upon the premises and began to make excavations preparatory to the construction of its road. Johnson filed his bill and obtained a preliminary order enjoining appellee from proceeding further in constructing its road on the premises in question. Afterward the injunction was dissolved on bill and answer, on a hearing before another chancellor, and Johnson took this appeal from the decree dissolving the injunction. He insists that the company could not lawfully enter upon the property until the compensation awarded had been paid, and that the trial court erred in dissolving the injunction. It is insisted with much force that the construction placed upon the 13th section of the Eminent Domain statute in Chicago, Santa Fe and California Railway Co. v. Phelps, 125 Ill. 482, and Atchison, Topeka and Santa Fe Railroad Co. v. Schneider, 127 id. 144, is, in the first place, an erroneous one, and in the second place, if warranted by the language of the statute, that the statute is in violation of the constitution, which provides that private property shall not be taken or damaged for public use without just compensation. Many cases decided by this and other courts are cited tending to support the contention that where the condemning company appeals it must pay or deposit the compensation awarded, or else await the .final determination of the appeal before taking possession of the property. We are asked to consider the question as one of first impression, and to overrule or qualify the rulings in the two cases above cited so far as they appear to decide the question here involved. Inasmuch, however, as the judgment for damages from which the appeal was taken by the company in this case has been affirmed by this court, there is no longer any ground for contention between the parties over the question of possession, and whatever conclusion might be reached on further consideration, (were such further consideration necessary to a determination of the rights of the parties,) we shall, upon the sole authority of the two cases above cited, affirm the decree. Decree affirmed.