APPEAL from the Circuit Court of Mason County; the Hon. GUY R.
WILLIAMS, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal lies from a final order of the circuit court of Mason County vesting title to certain land in the town of Bath, county of Mason, pursuant to a petition for condemnation filed by the petitioner under the purported authority of section 6-801 of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 6-801). We reverse.
The factual matters are not essentially in dispute. Petitioner is the highway commissioner for the town of Bath. He desired to obtain about one acre of respondent's land for the purpose of straightening and aligning a township highway. The land in question is part of a larger tract maintained by respondent as a private nature preserve.
After petitioner had filed his petition to condemn, respondent filed a traverse which alleged that petitioner had not followed the procedures set forth in section 6-301 et seq. of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 6-301 et seq.). As a result, respondent alleged, petitioner had no authority to institute the proceedings and the court had no jurisdiction to hear the case. Respondent also questioned the necessity for the project.
Prior to the hearing on the traverse respondent served on petitioner as notice to produce at trial the following documents pursuant to various sections of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121) as indicated:
1. Petitioner's certificate describing the project (par. 6-303).
2. Petitioner's written notice and notice by publication of the preliminary hearing (par. 6-305).
3. Petitioner's memorandum signed and filed (par. 6-305).
4. Petitioner's preliminary decision or that of his predecessor in office (par. 6-306).
5. The survey and plat (par. 6-307).
6. Petitioner's written notice or notice by publication of the time and place for final hearing (par. 6-311).
7. The final order of petitioner or his predecessor filed with the district clerk (par. 6-311).
At the hearing on the traverse petitioner stated that the documents did not exist and were not required since the provisions of section 6-801 (Ill. Rev. Stat. 1977, ch. 121, par. 6-801) were independent of any provision of section 6-301 et seq. (Ill. Rev. Stat. 1977, ch. 121, par. 6-301 et seq.) and that his power under section 6-801 was in no wise limited by section 6-301 et seq. After hearing arguments the trial court held that section 6-301 was not the exclusive method by which township roads could be widened, vacated or laid out. It then proceeded to a hearing on the traverse and motion to dismiss at which both sides presented evidence. Such evidence related principally to the necessity for condemnation and to the existence of prior negotiations.
At the conclusion of petitioner's evidence respondent renewed his traverse and motion to dismiss and it was denied; a similar procedure occurred at the conclusion of all of the evidence. After reconsideration the trial court arrived at the same conclusion and again denied the traverse and motion to dismiss. Thereupon, the parties waived jury trial and reached an agreed settlement as to just compensation. The trial court then entered its final order vesting title in petitioner. That order made the necessary findings that the petitioner had the authority to exercise the right of eminent domain, that the property was subject to the exercise of that right, and that a reasonable necessity for ...