Corwith v. Village of Hyde Park

McAllister, P. J. We regard the doctrine as fully settled in this State, that the ordinary judgment in proceedings to condemn private property for public use, is but conditional and not absolute, where the property has been neither actually taken or damaged by the party so seeking to condemn, and such party may, within a reasonable time, abandon the proceedings. While, on the other hand, if such party shall, without payment or tender of the compensation awarded, and without the consent of the owner, appropriate the property by taking possession, then such owner may have his action of ejectment to recover the possession, or trespass for the damages, which might be the value of the property: Smith v. Railroad Co., 67 Ill. 191; or he might bring case, or perhaps, waive the tort, and maintain debt for the amount awarded. But when the proceedings to condemn have progressed to judgment, and the party seeking to condemn has taken possession of the property with the consent of the owner, then the judgment becomes absolute, will bear interest, as in cases of ordinary judgments in common law actions, and, if the condemning party he not a municipal corporation against which an execution can in no case issue, ^execution may be awarded upon it; because such taking possession, ipso facto, gives the owner a vested right in the compensation. St. Louis & S. E. R. R. Co. v. Teters, 68 Ill. 144; City of Chicago v. Barbian, 80 Ill. 482; South Park Com’rs v. Dunlevy, 91 Ill. 49; Beveridge v. West Chicago Com’rs, 100 Ill. 75. It is a "general rule applicable to such cases, that if the amount of compensation is ascertained, but the statute provides for no means of enforcing the payment, the common law action of debt will lie. Bigelow v. Cambridge Turnpike Co., 7 Mass. 202; Lebanon v. Olcott, 1 N. H. 339; Battler v. Braintree, 14 Vermont, 348. But it was urged by appellee’s counsel that here the statute did provide for the means of enforcing payment, because the village of Hyde Park is incorporated under the general incorporation act of 1872, for cities and villages, and under Art. 9 of that act, the village was required to provide in the ordinance for the improvement, whether it should be made by special assessment or by special taxation of contiguous property, or general taxation, or both: R. S. 1874, p, 232; that the ordinance here prescribing that it should be by special assessment, that remedy was exclusive. In City of Chicago v. Shepard, 8 Bradwell, 610, we held that it was the established rule that such remedy was exclusive, and amounted to an implied prohibition of any other, so long as that prescribed was adhered to. But an examination of the statute shows that the power to carry that remedy into effect and the duty of doing so is confided to, and imposed upon, the trustees of the village, the property owmer having no power or duty in the premises. It was said in argument, that the appellant could have enforced the performance of such duty by mandamus. It is averred in the declaration, that it was the duty of the village to proceed and collect the moneys, but that it neglected and refused so to do; so that a violation of legal duty is not only admitted by the demurrer, but urged as an answer to the action. In Beveridge v. West Park Com’rs, supra, the court said: “ But it is said, plaintiff in error could have resorted to mandamus to compel payment. This is an admission that the commissioners were neglecting a plain legal duty, as that writ lies to enforce no other. Can plaintiff in error be answered by saying we were acting in palpable violation of our duty, but we are not liable to make compensation for the wrong, because you did not resort to legal proceedings to compel us to discharge a plain duty? Surely that can be no answer to the claim of plaintiff in error.” Suppose it be conceded, for the sake of the argument, that the legal effect of the village taking possession of appellant’s property, with his consent, was not to give the latter a vested right in the compensation, and make it immediately due and payable, but it was to make it due and payable only after a reasonable time, on the part of the village, to raise the amount by means of a special assessment; would not the law, in such case, imply a duty or undertaking, on the part of the village, to use due diligence to collect the means in such manner? Most clearly it would. If that be so, then must it not follow according to the analogies of the law in other cases, that, if the village neglected to use such diligence, and failed to collect the assessments for that reason, then its liability to pay the judgment would become absolute? In City of Chicago v. The People, ex rel., 56 Ill. 333, the city had entered into an express contract to pay for a public improvement when certain special assessments were collected, and the rule was announced that “if a person promise to pay a sum of money, Uohen he shall collect his demands of another, then if it appear that he had no demands, or if he have and fail to use diligence to collect them, in either case the promise may be enforced as absolute.” In Pierce on Railroads, Ed. of 1881, p. 178, we find this statement of the law, which is supported by numerous cases in the notes: “The special remedy is exclusive as to both parties where each may resort to it. If either may be the actor, neither can complain that the other did not first proceed under it. The owner can not, therefore, maintain an action at common law, where he fails to resort to the remedy provided for him by the statute. But if the company alone has the power, or is under a special obligation to carry it'into effect, and is in default for not having done so within a reasonable time, the injured owner is not deprived of his remedy by action.” We are of opinion that the third count of the declaration contains sufficient to constitute a legal liability, on the part of the defendant, to the' plaintiff below, for the amount of said judgment and interest, and that such legal liability being for a sum certain, the action of debt may be maintained upon it. 1 Chit. Pl. 14th Am. Ed. 108; Blanchard v. Maysville, etc., Turnpike Co., 1 Dana, 86. The judgment of the court below will therefore be reversed and the cause remanded, with directions to the court below to sustain the demurrer to the first and second counts, and overrule it to the third count of the declaration. Judgment reversed.