ELSIEHARBECK, Claimant, lis. STATE OF ILLINOIS, Respondent.
Case summary
Claimant sought compensation for damages to her remaining property caused by the construction of State Bond Issue Route No. 63. The court found that the Department's agreement to fill the land was unauthorized, but awarded $1,000.00 for the depreciation in value of the remaining land.
Statutes cited: Section 13, Article 2 of the Constitution
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Headnotes
- DAMA GETO PRoPERm-not t a k e n f o r public iise-cazcsed by construction 01 public improvement- award m a y be made f o r . Under Section 13 of Article 2 of the Constitution of Illinois, privati? property shall not be taken or damaged for public use without payment of just compensation, and where i t i s damaged by reason of the construction of a publio improvement a n award may be made for such damage. 'PRINCIPALA N D AGENT-miLthority of ageni to bil;!d State- extent ofone dealing with bound t o know- when State not bound b?/ contract Of Assistant A t t o r n e y General p u r p o r t i n g t o c(ct for Departwae?zt o j Public.Works and Buildings. One entering into a n agreement with a n o'fficer, agent or employee of the State, pu?porting to bind State to improve her land, contiguous to that conveyed to ;State for use i n construction of public improvement, in consideration of her release, discharge and satisfaction f o r all damages thereto, caused by such construction, is bound t o ascertain the extent of the authority of such officer, agent o r employee to so bind the State, and if he has no authority to do so, the State cannot be bound t.hereby; neither the Attorney General, o r any of his assistants, 'have any right, power or authority to enter into such contracts, for and on behalf of the State and it is not and cannot be bound thereby. '
- CoNTRacTs-purporting t o birbd State-elltercd i n t o with Assistant
- Attorney General having no authority t o so bind-void, and no recov.er?/ c a n be had thereon, o r for breach thereof. A contract entered into with. a n Assistant Attorney General of the State, purporting to bind , State is void and no recovery can be had thereon, nor for any breach thereof, where he had no power or authority to act for State therein, or bind it by such contract.
This claim is for damages to clai.mant's property caused by the construction of State Bond Issue Route No. 63.
Claimant alleges in substaiice; that she was the owner of a.11 of [*70] “that part of the Northwest quarter of, the Southwest quarter of Section 14, Township. 41, Range 10, East of the Third Principal Meridian, lying north of Higgins Road, situated in the town of Schaumburg, in the County of Cook, in the State of Illinois.”
That in the construction of State Bond Issue No. 63 the Department of Public Works and Buildings required a portion of the said land and in order to acquire the needed portion instituted condemnation proceedings on June 27, 1939, in Cook County, Illinois, Case No. 93060.
That in the course of the said proceedings claimant reached an agreement with the Department of Public Works and Buildings whereby claimant was paid $450.00 for the portion of her land actually taken and the Department of Public Works and Buildings agreed to fill the remaining part of claimant’s land to a grade one foot above the center of the proposed State Bond Issue Route No. 63.
That the said agreement was as follows :
AGREEMENT
“As an inducement to ELSIE HARBECK to execute and deliver her general warranty deed conveying the real estate described in Chicago Title & Trust Company opinion of Title No. 2328837, to-wit:
That part of the West half of the Southwest quarter of Section 14, Township: 41 North, Range 10 East of the 3rd P. M. lying North of Higgins Road, bounded on the North by a line 94 feet Northeasterly of and parallel to the following described line: Beginning at a stone in the West line of said Section 14. 146.53 feet North of the Northwest corner of the Southwest quarter of said Section 14, thence Easterly 1384.45 feet along a curve convex to the Southwest, having a radius of 21, 485.94 feet to a point on the East line of the West half of the Southwest quarter of said Section 14, said point being 293.4 feet South ,of the Northeast Corner of the West half of the Southwest quarter of said Section 14, situated in the County of Cook, in the State of Illinois. to the Department of Public Works and Buildings of the State of Illinois and In consideration of her full release, discharge and satisfaction for any and all damages to the real estate owned and retained by her adjoining the aforesaid real estate, which retained real estate is described as: [*71] That part of the Northwest quarter of the Southwest quarter of Section 14, Township 41 North, Range 10, East of the Third Principal Meridian, lying North of Higgins Road, in the County of Cook, Illinois, except that part of the Wesl half of the Southwest quarter of Section 14, Township 41 North, Range 10 East of the 3rd P. M., lying North of Higgins Rosd, bounded on the North by a line 94 feet Northeasterly of and parallel to the following described line: Beginning at a stone in the West line of said Section 14, 146.53 feet North of the Northwest corner of the Southwest quarter of said Section 14, thence Easterly 1,384.45 feet along a curve convex to the Southwest, having a radius of 21,485.94 feet to a point on the East line of the West half of the Southwest quarter of said Section 14, said point being 293.4 feet South of the Northeast corner of the West half of the Southwest quarter of said Section 14.
Said Department of Public Works and Buildings of the State of Illinois, does hereby agee to natural dirt fill, witaout charge to said ELSIEHARBECK, said retained land to a grade of one foot above the center of the road under construction or to be constructed, relocated, improved and widened, abutting, adjoining, or over any of the aforesaid real estate, within six months from the date, hereof; And in consideration of the foregoing, ELSIC HARBCCK, does hereby release and discharge said Department of Public Works and Buildings of the State of Illinois, from any and all damages to the aforesaid real estate owned and retained by her.
Department of Public Works and Buildings of the State of Illinois by BEN SCHWARTZ (Seal), Assistant Attorney General and authorized agent of J. E. CASSIDY, Attorney General and authorized agent and attorney for the Department of Public Works and Buildings of the State of Illinois.
ELSIE HARBECK.
Dated, September 29, 1939.”
Claimant further alleges that she subsequently requested the Department of Public Works and Buildings to comply with the said agreement but was informed that it had been discovered that to do so would require 8,000 * cubic yards of dirt and that the cost of the same would amount to the sum of $11,328.75. Claimant prays for an award for $11,328.75 as and for her damages accruing [*72] through the breach of the aforesaid agreement by the Department of Public Works and Buildings.
The record in this case consists of complaint, amended complaint, stipulation, transcript of evidence, abstract of evidence, motion to dismiss by respondent, claimant’s and respondent’s statement, brief and argument and numerous exhibits.
Respondent, through the Attorney General, moved to dismiss the complaint on the grounds that respondent is not liable for damages occasioned by the misfeasance, nonfeasance, or malfeasance of its servants or employees.
Respondent contends that the Assistant Attorney General or the Attorney General himself had no authority to enter into a contract such as the contract entered into with claimant herein. Respondent admits that the contract was entered into on the 29th day of September, 1939, the same being signed by one Ben Schwartz, an Assistant Attorney General, the alleged agent of the then Attorney General of the State of Illinois, John E. Cassidy, who had no personal knowledge of the said contract that was signed by his assistant and if’he had would have no legal power to authorize the execution of such contract for the Department of Public Works and Buildings of the State of Illinois.
The position’of the Attorney General in this respect is sound and with it we must agree. We can find no authority for such an act by an Assistant Attorney General or by a subordinate in the Department of Public Works and Buildings. The alleged agreement is without authority and is void.
Claimant in conveying to Dgpartment of Public Works and Buildings of the State of Illinois that portion of the land required by respondent specifically released respondent from all-damages to the land taken but did [*73] .
- not release respondent from damages to the adjoining land owned by claimant. The form of release usually taken by respondent contains a release to adjoining land owned by a grantor but in this case this provision of the release was specifically eliminated for the reason that an agreement had been entered into to $111in the adjoining land owned by claimant to grade level.
The facts of this case are not disputed. It is merely a question of what damages, if any, claimant has sustained and is entitled to recover. Claimant conveyed a certain portion of her land to respondent in consideration of what she thought was a fair agreement to secure her from damages to her adjoining property. The fact that this agreement was entered into by the Department of Public Works and Buildings without authority and by one who had no authority to make such an agreemFnt does not relieve respondent from the liability to pay claimant for any damages which she may have sustained.
Section 13, Article 2 of the Constitution provides that . “private property shall not be taken or damaged for public use without just compensation. ” Respondent acquired from claimant a portion of land and paid for the portion acquired It did not pay for the damages sustained to the remaining portion. For this damage claimant is entitled to compensation.
The land in question is a triangular piece of property well above grade on the east side thereof andivery low and below grade on the westerly side thereof. The portion taken by respondent was all from the east side of the property leaving to claimant the westerly portion which is low and under water in wet seasons. The bal’ ance of the land remaining to claimant, is, because of said improvement, now without practical value.
[*74] ~ i While claimant is not entitled to compensation on the basis of the alleged agreement, she is entitled to compensation on the basis of the depreciation in value her remaining land has sustained by reason of the said improvement. In an effort to determine claimant’s dam- . ages this court has investigated and viewed the property and after much consideration concludes that claimant has sustained additional damages in,the sum of $1,000.00 for which sum she is entitled to an award.
An award is therefore entered in favor of claimant, Elsie Harbeck, in the sum of $1,000.00.