Appeal from the Circuit Court of McHenry County; the Hon.
Harry D. Strouse, Jr., Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The city of Crystal Lake appeals from an order dismissing its petition to condemn approximately 601 acres of land for a municipal airport. In issue is the effect of an earlier filed petition to condemn a portion of the same property for an airport filed by the village of Lake in the Hills, a nonparty to these proceedings.
The subject land consists of three parcels: the "Cohn" property, approximately 158 acres contiguous to the southern boundary of the village of Crystal Lake; the "Pedersen" property, 208 acres contiguous to the northern boundary of the village of Lake in the Hills (LITH); and a 236-acre tract lying between these properties. The "Cohn" property has been owned by the defendant Material Service Corporation (MSC) since 1956; the "Pedersen" property has been owned by the defendant Mineral Land and Resources Corporation (MLR) since late 1980; the middle parcel has been owned beneficially by MLR since early 1981. The Lake in the Hills airport which was formerly operated privately and known as the Crystal Lake Airport (the Airport) occupies approximately 27 acres of the middle parcel.
Before any activity leading to the instant suit began, the subject property lay in unincorporated McHenry County. On January 21, 1981, the defendants requested annexation to LITH and rezoning to M-1 to allow excavation of sand and gravel and other raw materials. LITH filed a petition to condemn the airport property on January 26, 1981. Crystal Lake filed its condemnation petition against the subject property on March 5, 1981. On August 24, 1981, LITH annexed and rezoned the subject property to allow gravel mining on most of the property and to allow the airport to continue as a special use. Following this, Crystal Lake filed a petition for leave to intervene in LITH's eminent domain proceedings with an attached traverse and motion to dismiss.
On February 2, 1982, LITH and the defendants entered into a stipulation to settle the condemnation suit in accordance with the provisions of an attached agreement.
Defendants filed a traverse and motion to dismiss Crystal Lake's condemnation suit April 16, 1981, and an amended traverse and motion on February 16, 1982. At the close of Crystal Lake's case the trial court granted defendants' amended traverse and motion to dismiss. The trial judge found that LITH had filed its petition to condemn prior to the filing of the petition by Crystal Lake to condemn the same property; that all subsequent proceedings related to the filing date; and that after annexation of the subject property to LITH the parties to the LITH suit sought to enter into a consent decree to confirm the taking. The court rejected Crystal Lake's contention that acts subsequent to the filing of the petition including the exchange of deeds amounted to an abandonment of the LITH condemnation action.
On December 28, 1982, the trial court denied Crystal Lake's motion to intervene in the LITH condemnation suit, denied defendants' traverse and motion to dismiss, granted LITH's petition to condemn the subject property, and stated that it would enter a decree in accordance with the agreement when presented. When Crystal Lake objected to the granting of the motion prior to the judgment in the LITH suit the court agreed to stay its order in that case "to make sure they follow through." It is conceded that Crystal Lake did not appeal the denial of its petition to intervene in the LITH suit nor otherwise seek review of the final judgment in condemnation in that case.
Crystal Lake here appeals from the December 22, 1982, judgment granting defendants' traverse and motion to dismiss.
Crystal Lake essentially contends that to have priority LITH must be able to relate its title to the date of the filing of its petition to condemn; that this requires payment of just compensation under a valid condemnation decree and that LITH by entering into an agreement for payment of compensation in installments over a period of years failed to comply with the judgments section of the Eminent Domain Act. (Ill. Rev. Stat. 1979, ch. 47, par. 10; now Ill. Rev. Stat. 1981, ch. 110, par. 7-123.) (Hereafter all references will be to the 1982 recodification of the Eminent Domain Act in the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 7-101 et seq.) Crystal Lake also argues that the acceptance of a deed prior to judgment for a small portion of the property described in the petition cannot effect the relation back of title, thus, that the Crystal Lake condemnation suit must be given priority.
• 1, 2 It is not disputed that, in Illinois, title does not vest until the condemnor pays the just compensation required, and that when payment is made the title relates back to the date of the filing of the condemnation petition. (See, e.g., Board of Junior College District 504 v. Carey (1969), 43 Ill.2d 82, 84-85.) However, we do not perceive the essential question before us to involve the date of title to the condemned property but rather the priority as between two municipalities seeking the same land, one of whom files its condemnation petition prior to the other. It is well established in condemnation law that "the rights and interests of the parties date from the time of the filing of the condemnation petition." Dowie v. Chicago, Waukegan & North Shore Ry. Co. (1905), 214 Ill. 49, 54.
• 3 The condemning body, absent statutory quick-take provisions, does not have the right to take possession until the ascertainment and payment of just compensation. (Ill. Rev. Stat. 1981, ch. 110, par. 7-123; South Park Commissioners v. Dunlevy (1878), 91 Ill. 49, 54.) In Dunlevy there is a suggestion that park commissioners did assume control over the property prior to payment of full compensation but that this was not an issue in the case since it had not been raised. 91 Ill. 49, 54.) Commonly, cases discussing the relation back of title upon the payment of full compensation involve tax liens or other rights or obligations which have accrued after the filing of the condemnation petition; it has been uniformly held that the liens do not affect title since that relates back to the filing of the petition although the obligations may be subject to resolution and payment from the compensation awarded. See, e.g., Chicago Park District v. Downey Coal Co. (1953), 1 Ill.2d 54, 59; City of Chicago v. McCausland (1942), 379 Ill. 602, 604.
• 4 In deciding the question of priority and in the absence of direct authorities in Illinois the trial judge placed reliance on San Bernardino Valley Municipal Water District v. Gage Canal Co. (1964), 226 Cal.App.2d 206, 37 Cal.Rptr. 856. In San Bernardino a municipal water district pursuant to an authorizing statute filed a petition to condemn the water rights and certain of the physical properties of a water company. The company, as a special defense, alleged that there had been a condemnation action for the same property filed by the city of Riverside some 10 months prior to this suit. On the motion of the San Bernardino Water District the trial court stayed further proceedings until the termination of the condemnation action pending in the Riverside case, and on appeal this was affirmed. The court reasoned that condemnation is an in rem action, that two condemnors cannot have title and right to possession of the same res, that to allow both suits to go to judgment would be a disservice, and that, therefore, one judgment or the other must be conclusive. The court concluded that since a court of competent jurisdiction obtains jurisdiction of the res upon the filing of a petition, the first condemnor so to file must prevail. 226 Cal.App.2d 206, 211, 37 Cal.Rptr. 856, 859.
While we have found no other cases in Illinois or elsewhere involving competing claims for condemnation by adjoining municipalities, we find the reasoning of ...