City of Chicago v. Hayward , 60 Ill. App. 582 ( 1895 )

Mr. Justice Waterman

delivered the opinion of the Court.

The question here presented.is as to the right or claim against the city, of an owner of property, to condemn whose land, proceedings instituted by the city have gone to a judgment of condemnation, in which the value of his interest was fixed; the city having, after judgment, not only taken possession of and paved such property, but repealed the ordinance under which the proceedings were instituted, and thus abandoned all effort to collect, from property specially benefited, the amount awarded in the condemnation proceeding.

While it is true that before taking possession the city may abandon the proceedings (C. & N. W. Ry. Co. v. Chicago, 148. Ill. 141; St. L. v. S. E. Ry. Co., 68 Ill. 144; Bloomington v. Miller, 84 Ill. 64; Glennon v. C. M. & St. P. Ry. Co., 79 Ill. 501), the case at bar is not of such a nature.

We are of the opinion that by taking possession as it did, the owner assenting thereto, the city became liable to pay the judgment, and that an action of assumpsit was properly brought therefor. Chicago v. Barbian, 80 Ill. 482; Clayburgh v. Chicago, 25 Ill. 535; Corwith v. Village of Hyde Park, 14 Ill. App. 635.

It is urged by appellant that the remedy of appellee, if any he has, is by way of mandamus to compel the city to levy and collect a special assessment to pay for the land taken. That is, the property owner whose land has been taken away from him is to assume that private property was, by the improvement, specially benefited to the extent of the damage awarded to him.

Why should the property owner be compelled to base an act upon an assumption which may have no foundation in fact?

The inference, presented by the dismissal of the assessment proceeding, is that the city had concluded that it would be unavailing.

It is also urged that the statute provides for a summary remedy in the condemnation proceeding. If this be so, we do not think that thereby the remedy by action of assumpsit is taken away.

The judgment of the Circuit Court is affirmed.