A jury being empanelled on the law side of the court below to
settle an issue sent from the chancery side, rendered a verdict
which was certified by the clerk to the chancery side, and
thereupon a decree was entered in conformity with it. At the next
succeeding term, the court ordered a transcript of the evidence on
the trial of the issue, together with the charge of the court, to
be filed on the chancery side.
Held that this order
nunc pro tunc was proper in order to prevent injustice,
and was within the power of the court.
A verdict on an issue from chancery was taken on the law side of
the court, and was subsequently set aside there, and a new trial
ordered there, which was had with a second verdict on the same
issue. This second verdict was certified to the chancery side of
the court, and a decree was made there founded upon it in which the
setting aside of the first verdict was recited.
Held that
this was an approval, adoption, and confirmation of the acts on the
law side of the court recited in the decree.
Plaintiff's land was taken for a public park by right of eminent
domain. Un a trial before a jury to determine its value on the day
when the Park Commissioners took possession of it, plaintiff
offered to show the prices at which sales had been made of lands
immediately adjoining the proposed park, which derived special
benefit from its location, which sales were made after the exterior
lines of the park had been determined.
Held that it was
inadmissible.
The true rule for damages in this case is stated in Cook v.
South Park Commissioners, 61 Ill. 118.
The case is stated in the opinion of the Court.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
The proceedings and decree brought here for revision by this
appeal are in execution of the mandate of this Court affirming a
former decree in the cause, the appellants being the executors and
devisees of William P. Kerr, the original complainant, in
Page 117 U. S. 380
whose names, upon his death since the decree, the cause has been
revived.
The original litigation established the title of Kerr to the
premises in controversy, subject to the right of the appellees, the
South Park Commissioners, who had taken possession of the lands on
August 27, 1870, to appropriate them for the public use as a part
of a public park in the City of Chicago, on payment of their value
on that day.
It was ordered by the decree that the South Park Commissioners
pay to the complainant
"the value of the premises on the 27th day of August, A.D. 1870,
known and described as the south fractional half of section
thirteen, in township thirty-eight north, or range fourteen east of
the third principal meridian, except lots 9, 10, and 15, in Chas.
B. Phillips' subdivision of 26 acres off the west side of the S.W.
1/4 of said section thirteen, according to plat of same recorded in
the recorder's office of Cook County, in book 98 of maps, p. 9, and
the east half of said south west quarter of said section thirteen,
together with interest thereon from the 27th day of August, A.D.
1870, at the rate of six percent per annum, upon the conveyance of
said premises by the complainant, William P. Kerr, and his
assignees, claiming under him since the commencement of this suit,
by deed which shall release to the South Park Commissioners all
interest of the said complainant and his assignees. And it is
further ordered that the value of said premises required to be paid
be ascertained as follows: a jury shall be impaneled in this court,
on the law side thereof, to hear the evidence submitted by both
parties, and said jury shall determine by their verdict the value
of the land hereinbefore described on the 27th day of August, A.D.
1870, the time when possession was taken by the South Park
Commissioners, and the verdict shall be certified by the clerk to
the chancery side of this court, and the amount so found shall be
considered as the value of said premises on the day aforesaid,
unless set aside or changed by the further order of this Court. And
it is further ordered that the complainant, William P. Kerr, make a
deed, and procure deeds to be made by all persons claiming under
him since the commencement of this
Page 117 U. S. 381
suit, conveying to the South Park Commissioners the premises
aforesaid, when they shall pay the amount found to be due, with
interest from the 27th day of August, A.D. 1870, at the rate of six
percent per annum, and the court denies any relief to the
complainant as to the east half of the southwest quarter of section
13 aforesaid, and it is ordered that the bill of complaint be
dismissed as to that part of the premises. And it appearing to the
court that the South Park Commissioners have commenced proceedings
to condemn the undivided one-quarter of the west half of the
southeast quarter of section twenty-four, in township thirty-eight
north, of range fourteen east of the third principal meridian,
another of the tracts described in the bill belonging to the
complainant, it is ordered that all questions touching the same be
reserved for the further order of the court."
Afterwards, at the October term, 1884, the issue directed by the
decree of October 8, 1878, was tried by a jury, who returned a
verdict fixing the value of the tracts of land in controversy,
comprising 111 acres, as of the date of August 29, 1870 at
$155,400, which verdict was certified by the clerk to the chancery
side of the court as by the decree was directed.
And thereupon, on January 20, 1885, the following decree was
entered.
"This cause coming on to be heard upon the pleadings, orders,
and decree of October 8, 1878, herein, and the mandate of the
supreme court herein filed May 17, A.D. 1882, and the verdict of
the jury rendered upon the law side of this Court on the sixteenth
day of December, A.D. 1884 (the motion to set aside the same having
been overruled), and certified by the clerk to the chancery side of
this court, determining the value of the tracts of land described
in the decree herein entered on the eighth day of October, A.D.
1878, to have been on the twenty-seventh day of August, A.D. 1870,
the sum of one hundred and fifty-five thousand four hundred
dollars, and the evidence, rulings, and charge of the court upon
the trial of the issue as to said value, it is hereby ordered,
adjudged, and decreed that said amount of one hundred and
fifty-five thousand four hundred dollars be, and it is hereby,
adjudged to be the value of said tracts of land at that date, and
it appearing to the court that the said complainants cannot at
present comply with said decree of October 8, 1878, and that
various claims are set up as against said complainants to said
tract, or portions thereof, it is ordered that the South Park
Commissioners pay into court the said sum of one hundred and
Page 117 U. S. 382
fifty-five thousand four hundred dollars, with interest thereon
from the twenty-seventh day of August, A.D. 1870 at the rate of six
percent per annum to the date of such payment, and that upon such
payment into court the said South Park Commissioners be discharged
from further liability for interest in the premises, and that the
distribution of said money when paid into court be reserved until
further order."
"And the South Park Commissioners exhibiting to the court the
pleadings, orders, proofs, and decree of August 26, 1882, in a
certain cause on the chancery side of this Court, wherein the South
Park Commissioners were complainants and Susie M. Kerr, Rosa L.
Kerr, and Joseph B. Kerr, executors, etc., of William P. Kerr,
deceased, and others, were defendants, wherefrom it appears that on
the twenty-ninth day of November, 1879, the sum of eighty-two
thousand eight hundred dollars, and on the twenty-sixth day of
February, 1880, the sum of seventy-two hundred dollars, of the
moneys of the said South Park Commissioners came to the hands of
the said Kerrs, complainants in this case, and that the sum of
forth-two hundred and twenty dollars and nineteen cents was paid
into this Court in that suit December 1, 1882, as appears from the
order of this Court in that cause on that day entered, all these
moneys being paid on account of the lands in this cause mentioned,
and it further appearing that the sum of twenty-five thousand
dollars was paid into court in this cause on the eighteenth day of
February, 1884, on account of said lands, it is ordered that said
several sums of eighty-two thousand eight hundred dollars, with
interest from November 29, 1879; seventy-two hundred dollars, with
interest from February 26, 1880; forty-two hundred and twenty
dollars and nineteen cents as of the date of the payment into court
herein
Page 117 U. S. 383
provided for, and twenty-five thousand dollars, with interest
from February 18, 1884, be applied on said principal sum of one
hundred and fifty-five thousand four hundred dollars, and interest,
and that the South Park Commissioners pay into court under this
decree only the balance thereby arrived at, together with the
commission provided by law thereon, and the sum of two hundred and
fifty dollars, the commission on the sum of twenty-five thousand
dollars so paid February 18, 1884, as aforesaid, and interest
thereon from that date."
"And it is also ordered that the deed of James R. Doolittle
referred to in said decree of August 26, 1882, in the cause of
South Park Commissioners against Susie M. Kerr and others, may be
executed and delivered to said South Park Commissioners, and that
thereupon said sum of forty-two hundred and twenty dollars and
nineteen cents may be taken from the registry of this court by said
complainants Kerr without prejudice to any appeal in said cause in
which said money was so paid into court and deed directed to be
delivered as aforesaid."
From this decree the complainants have brought the present
appeal.
At the next succeeding term of the circuit court after that at
which the decree appealed from was entered, it appears by the
transcript of the record that the court permitted to be filed and
made part of the record a certificate of the evidence adduced on
the trial of the issue, together with the charge of the court to
the jury, verified by the signature of the circuit judge. It
appears also from the recitals in the decree of January 20, 1885,
that the hearing had taken place upon the pleadings, orders, and
decree of October 8, 1878, and the mandate of the supreme court,
filed May 17, 1882, and the verdict of the jury rendered upon the
law side of the court on December 16, 1884, the motion to set aside
the same having been overruled, certified by the clerk to the
chancery side of the court, determining the value of the tracts of
land described in the decree of October 8, 1878, to have been on
August 27, 1870, the sum of $155,400, and the evidence, rulings,
and
Page 117 U. S. 384
charge of the court upon the trial of the issue as to said
value.
We cannot, as we are asked to do by counsel for appellees,
disregard the evidence and rulings of the court on the trial of the
issue, which are certified by the court as authentic and correctly
reported, and which the decree recites to be the basis of its
findings, because they were not certified and brought on the record
at the same term at which the decree was entered. The subsequent
certificate merely ascertains and verifies what proceedings took
place before the court at the time of the hearing, and although
they should regularly have been brought on the record at the same
term, we know of no rule of chancery practice or procedure which
forbids the making of a
nunc pro tunc order to supply such
an omission and to prevent injustice.
On the other hand, we are asked to disregard the verdict recited
in the decree as a nullity, and consequently to reverse the decree
itself on that account, because, as it is alleged, there was a
prior verdict rendered on the same issue on November 5, 1883, which
had never been regularly or lawfully set aside. But no such verdict
appears in the record otherwise than by a recital in an order of
the court made on February 18, 1884, by which it is set aside and a
new trial awarded. It is objected that that was a proceeding on the
law side of the court, and that the verdict was never certified to
the chancery side of the court, where alone proceedings, to set it
aside could have been properly taken. It is a little difficult, no
doubt, to keep entirely separate proceedings in the same cause,
part of which take place on the law side and part on the chancery
side of the same court, when all are conducted by the same judge;
but no confusion results in the present case, because whatever was
done on the law side was approved and adopted by the chancellor,
who, in framing his decree on the basis of the verdict of December
16, 1884, necessarily confirmed the action of the circuit judge in
setting aside the previous verdict of November 5, 1883.
On the trial of the issue before the jury as to the value of the
land in question taken by the appellees for the purposes of the
park, the appellants offered to prove, as tending to show
Page 117 U. S. 385
the value of their land, the prices which had been actually paid
on sales of similar property situated so as to adjoin the park, or
be within its immediate vicinity, sales which had taken place after
the lines of the park boundaries had been definitely ascertained
and laid out. This evidence was rejected, and this ruling, together
with the charge of the court to the jury on the point, are assigned
as error to the prejudice of the appellants.
The portions of the charge of the court to the jury objected to
on that ground are as follows:
"A number of witnesses testified that the agitation of the park
project, the anticipation that the legislature would authorize the
appropriation of lands to establish a park in the vicinity of the
present South Park, and the introduction of the bill into the
legislature, which finally became a law on the ___ day of February,
1869, materially enhanced the value of lands embraced in the
present park lines, as well as the lands adjacent thereto and in
that vicinity. Any resulting benefits to the lands within the
proposed park from this and other causes -- such as the growth and
prosperity, or the anticipated growth and prosperity, of the City
of Chicago -- you should take in account in determining the amount
that will fairly compensate the owner. But a number of witnesses
also testified, and there seemed to be less agreement upon this
point than upon some others, that the passage of the park act, its
ratification by the people, and the fixing of the proposed park
boundaries by the legislature, gave to the lands immediately
fronting upon and in the vicinity of the park, including the Midway
Plaisance and the boulevards, an additional value solely on account
of their being without the proposed park lines, but adjacent to the
park, the plaisance, and the boulevards, or near enough thereto to
receive the special benefits resulting from such improvements. In
the nature of things, the lands within the proposed park, and which
where to constitute it, could not have been thus specially
benefited, and the owner of the lands in question should be allowed
nothing on the ground that his property was thus specially
benefited. Even the witnesses who testified upon this branch of the
case for the owner admitted that the outlying lands received a
benefit from their
Page 117 U. S. 386
location or relation to the park which the lands constituting
the park did not receive."
"Sales of property of like character and quality, similarly
situated and affected by the same causes, made under circumstances
likely to produce competition among bidders, are sometimes resorted
to in determining the value of lands; but inasmuch as the lands
adjacent to and in the vicinity of the park, plaisance, and
boulevards received a special benefit, and were subject to a
special burden by reason of the existence of the park, plaisance,
and boulevards, their situation, and that of lands embraced within
the park lines, were relatively so different that outside sales
afforded no just grounds for determining the character of the lands
taken for the park, and hence all evidence of such sales was
excluded, and you are again instructed that there is no such
evidence before you."
"It is for you to say whether any of the experts, in giving
their opinions of the value of the two tracts in question, were
influenced, if at all, by knowledge of sales of lands which
received a special benefit by reason of their peculiar relation to
the park, plaisance, and boulevards. To the extent that any of the
witnesses based their opinions upon a knowledge of such sales,
their evidence should be disregarded. It is for you to say,
however, whether any of the witnesses gave opinions upon this
basis."
"Situated as they then were, what were they worth in cash, or on
terms equivalent to cash, in the market, if a market then existed
for such lands? It is to be borne in mind -- it was then known --
that these lands were within the park lines, and designated for
park purposes. What would anyone needing lands for residence,
business, or any other purpose have paid for them in cash? You are
not at liberty to place a value upon those lands upon the basis of
what some one might have been willing to have bought them for on
time at the date named, for purely speculative purposes."
"Now, what you are to do is simply determine, as I instructed
you yesterday, the value of that land on the twenty-seventh of
August, 1870. The market value was what land would have sold for in
cash, or on such time and terms as would be equivalent
Page 117 U. S. 387
to cash. Was there any demand -- was there any market -- for
land situated as this was at that time? What evidence is there
before you, if any, showing that the lands within the park lines,
or the designated park lines, were changing hands after the passage
of the park act?"
"In that connection, however, you will bear in mind that many of
the witnesses -- most of them, perhaps -- testified that the final
passage of the park act and its ratification resulted in special
benefit to the lands around the park and its vicinity, and that the
lands within the park lines did not receive this special benefit.
For this special benefit you will allow nothing."
We think the evidence offered was properly excluded, and that
the true rule for the valuation of the property was correctly and
fairly stated in the charge of the court above quoted. It is
strictly in accordance with the law of Illinois, as understood and
expounded by the supreme court of the state.
In
Cook v. South Park Commissioners, 61 Ill. 124, the
court said:
"The court did not err in refusing to give the eighth, ninth,
and tenth instructions for appellant. The eighth and ninth are
substantially that if lands adjacent to the park generally
increased in value in consequence of the prospect of establishing a
public park, then the lands of appellant must share in such
increase. This does not fairly or necessarily follow. The adjacent
lands to the property, from their peculiar situation, derived a
special benefit, and were subject to a special burden. The lands
needed for the park must be purchased and the park maintained by
special assessments upon the adjacent lands. Their situation
relatively was so different that they were not a proper standard by
which to judge the value of the lands taken for the park."
We find no error in the decree, and it is accordingly
Affirmed.