City of Chicago v. Smythe

Morait, J. This was an action to recover from the city for the value of a strip of land which it had appropriated for the purpose of a public street. In pursuance of an ordinance providing for opening and widening the street in question, a petition for condemnation of this strip with other land was filed in the Superior Court on October 6, 1881, and the compensation to be paid for the land was fixed at $950. It was proved that the city took possession of the land April 9, 1881, some six months prior to the filing of the condemnation petition, and the court in this suit allowed interest on the value of the land from the date of such taking possession, and rendered judgment against the city for the value of the land and such interest in the amount of $1,349. The ordinance authorizing the condemnation provided that the improvements should be made, “ and the costs thereof paid for by a special assessment to be levied on the property benefited thereby to the amount that the same maybe legally assessed therefor, and the remainder of such costs to be paid by general taxation,” and the city offered to prove that it had been unable to collect the special assessment levied to pay for the improvements, and counsel for the city now contend that this case is governed by The People v. Hyde Park, 117 Ill. 462, and Village of Hyde Park v. Corwith, 112 Ill. 441. We are of opinion that those cases do not control here. In those cases the ordinance declared that the entire cost of the improvement should be paid for wholly by special assessment, and the court declined to coerce the village into adopting another method of paying for the land to be taken. Here such part of the cost of improvement as should not be levied on property benefited is to be paid by general taxation. If, therefore, the city has not succeeded in finding property benefited, or has failed for any reason to collect assessment smade on property being benefited, the deficiency is to be made up from the general fund. The value of the land was due to the owner from the time the city took possession, and we think it simple justice to allow interest from that time. Phillips v. South Park Commissioners, 119 Ill. 626. The judgment of the Superior Court will be affirmed. Judgment affirmed.