Village of Prairie du Rocher v. Schoening-Koenigsmark Milling Co. , 251 Ill. 341 ( 1911 )

Mr. Justice Dunn

delivered the opinion of the court:

The village of Prairie du Ro’cher, the appellee, instituted proceedings for the condemnation of certain premises of the appellant for a local improvement, and on June io, 1910, a verdict was rendered fixing the compensation to be paid the appellant at $1350. A judgment was. entered for the payment of the compensation so awarded within sixty days, and for the entry of the petitioner, upon such payment, on the premises for the purpose of the contemplated improvement. The defendant in that proceeding perfected an appeal to this court on July 12, 1910, by filing a bond, and on December 21, 1910, the judgment was affirmed. After this appeal was taken, the village, desiring to take possession of the premises, filed its bond in the sum of $5000 in accordance with section 13 of the Eminent Domain act, and thereupon entered upon and thereafter remained in the possession of the premises for the purposes of the improvement for which they were taken. It did not, however, at any time pay or tender the compensation awarded. Immediately upon the affirmance of the judgment the appellant presented to the county court its petition praying for an order against the village for the payment of the costs, expenses and attorneys’ fees incurred by the appellant in its defense against the petition, on account of the petitioner’s failure to pay the compensation awarded within the time fixed by the court. The village answered, relying upon the appeal and' its bond given pursuant to the statute, and bringing into court the amount of the cotnpensation awarded. The county court overruled a demurrer to this answer and dismissed the petition.

Appellee first insists that the appeal should have been taken to the Appellate Court. Section 12 of the Eminent Domain act provides that in all cases an appeal shall lie to the Supreme Court, and the appeal was therefore properly brought here.

The effect of the appeal by the land owner was, during its pendency, to stay the execution of the judgment and the running of the time limited for the payment of the compensation. Whether the village should give the bond required by section 13 of the Eminent Domain act was optional with it. Its doing so had no effect upon the appeal or the execution of the judgment. Its entry, under the authority given upon the filing of the bond, was not in execution of the judgment, but under the statutory provision which gave to it only the temporary use of the premises pending the litigation. The law must be regarded as settled by the previous decisions of this court that the petitioner in a condemnation proceeding, if an appeal is taken by either party, may enter upon the use of the property, upon entering into the bond required by section 13 of the Eminent Domain act, without paying or depositing the compensation ascertained. (Chicago, Santa Fe and California Railway Co. v. Phelps, 125 Ill. 482; Atchison, Topeka and Santa Fe Railroad Co. v. Schneider, 127 id. 144; Davis v. Northwestern Elevated Railroad Co. 170 id. 595.) The constitutionality of this section is vigorously assailed by counsel for the appellant, but we regard it as established by the decisions cited and not now open to question. The appellee was under no obligation to pay the compensation awarded until the determination of the appeal, and the demurrer to its answer was therefore properly overruled.

Judgment affirmed.