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Wehrum v. Village of Lincolnwood

FEBRUARY 5, 1968.

ARTHUR WEHRUM AND ESTHER WEHRUM, PLAINTIFFS-APPELLANTS,

v.

VILLAGE OF LINCOLNWOOD, COOK COUNTY, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD G. SCHULTZ, Judge, presiding. Judgment reversed.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 11, 1968.

Plaintiffs appeal from an order of the Circuit Court of Cook County, which dismissed their complaint for trespass on the ground that the cause of action was barred by a prior judgment.

Plaintiffs were the owners of a vacant parcel of real estate located in Lincolnwood, Illinois. In 1960, the Village entered upon the property and converted the property into a playground. The land was continuously used by the Village as a recreation area and in 1965 condemnation proceedings were commenced. An award was made to plaintiffs in those proceedings and subsequently the instant action was instituted for damages for the Village's tortious action in trespassing upon the land prior to the condemnation proceedings.

The doctrine of res judicata, relied upon by the Village is succinctly set forth in Freeman on Judgments, 5th Edition, § 627:

"(T)his doctrine (res judicata) is that an existing final judgment or decree rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties or their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue and adjudicated in the first suit."

In order for a former adjudication to be an absolute bar upon the subsequent action, there must be identity of parties, of subject matter, and of cause of action. Hoffman v. Hoffman, 330 Ill. 413, 161 N.E. 723 (1928). Further, in those situations where the cause of action is the same, the doctrine extends to all grounds of recovery or defenses which might have been presented in the first suit. Chicago & W.I.R. Co. v. Alquist, 415 Ill. 537, 114 N.E.2d 713 (1953). It is the Village's position that "all questions of damages, past, present and future as to the lands and interest described and taken by the condemning authorities, are adjudicated in the condemnation proceeding and finally determined by the condemnation judgment." We do not agree with this contention.

[3-6] There is no question that the parties to the condemnation proceedings and the instant tort action are identical. If the subject matter were considered to be the piece of real estate, that too would be identical. However, it appears to us that the causes of action are clearly distinct and encompass entirely different issues. Condemnation proceedings, which are governed by the Eminent Domain Act (Ill Rev Stats 1965, c 47), present to the court only one issue and that is the value of the land being taken or damaged. Value is determined as of the date the petition to condemn is filed. Public Bldg. Commission of Chicago v. Continental Illinois Nat. Bank & Trust Co. of Chicago, 30 Ill.2d 115, 195 N.E.2d 192 (1963). As pointed out by the Supreme Court in Chicago, T.H. & S.E.R. Co. v. Greenfield, 268 Ill. 94, 108 N.E. 750 (1915):

"The Eminent Domain act requires nothing of a defendant. No pleading is contemplated, and not only is no answer required, but if one is filed it may be stricken from the files. The only inquiry is the amount of compensation and a defendant may participate in the hearing upon this question, introduce evidence and take any other appropriate action without answer or other pleading." (P 95, citations omitted.)

Righeimer in "Eminent Domain in Illinois" also takes the position that the only issue raised in a condemnation proceeding is "the amount to be awarded for the property appropriated and damages if any to the remainder of the tract of which the property appropriated is part." (At p 21.) Thus, the question of damages for tortious action by the condemning authority with respect to the real estate designated in the petition to condemn cannot be in issue in those proceedings. Whether such prior tortious action is of the class that will give rise to recovery is not involved in the instant case. See Chicago Housing Authority v. Lamar, 21 Ill.2d 362, 172 N.E.2d 790 (1961).

Although not cited by either party, we feel the instant case falls within the following rule set forth in Nichols on Eminent Domain, § 14.24:

"(A)lthough there is authority to the contrary, trespasses by the condemnor which antedate the condemnation are not grounds for recovery in the condemnation proceeding nor does the allowance of an award in such proceeding for other elements of damage bar an action based upon a precedent trespass." (Vol 4, P 557, Emphasis added.)

Not one of the several Illinois cases upon which defendant relies involves the question of prior tortious conduct by the condemnor. In McReynolds v. City of West Frankfort, 3 Ill. App.2d 406, 122 N.E.2d 433 (1954), the city had condemned land for the purpose of constructing a dam to create a reservoir. Twenty-one years later, the plaintiff claimed that his land was damaged by recurrent overflows from the reservoir. However, plaintiff's land was part of the tract included in the original condemnation proceedings and "compensation had already been paid for the depreciation in value of this land caused by the present height of the spillway." (P 410.)

Allen v. Haley, 169 Ill. 532, 48 N.E. 478 (1897), involves condemnation of a parcel of land by the Sanitary District of Chicago. After paying plaintiff the amount of the award, defendant entered upon the land, and in so doing broke certain embankments around a certain ice pond and broke down certain structures on the premises so condemned. The condemnation award, concluded the court, includes the land as well as the structures on it. The condemnation proceeding adjudicated the value of all property taken and plaintiff's recovery in such proceedings was not limited to the value of the land alone. Thus, the Allen case holds that a condemnation award covers both the ...


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