On rule to show cause why writ of mandamus should not issue.
For the relators, Arthur E. Dienst.
For the respondent, David T. Wilentz and William J. McCormack.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This matter is before the court on the return of a rule to show cause why a peremptory or alternative writ of mandamus should not issue directing the respondent, State Highway Commissioner, "to institute condemnation proceedings to determine the amount to be paid for damages to the lands of the relators caused by the State Highway Department's taking of the drainage rights on, over and across the said lands."
The facts are substantially uncontroverted. The State Highway Department, in 1928, commenced the construction of Route No. 29 across lands of the relators. As part of
the operation "there were two catch basins constructed" and a "pipe was laid along Oakland Avenue for an outlet." This was testified to by relator, Augustus T. Gray, and other witnesses. It is the condition alleged to have been created by this drainage system that relators now seek to be paid for. They allege that their lands have been damaged by being flooded by water due to the installation of this system.
The relator testified that the condition existed when the condemnation proceedings were instituted by the state on August 1st, 1930, and continued throughout the hearings before the condemnation commissioners. Upon their making an award, both parties appealed to the Union County Circuit Court. In the orders of Judge Cleary framing the issue on the appeals, it is stated that the issues to be tried include: "The value of the lands taken and the damages sustained by reason of the taking and condemning thereof * * *." Before the appeals were heard, the parties agreed to a settlement and Gray, and his wife, executed a deed for the lands taken by the State Highway Department. This deed is dated June 12th, 1931, acknowledged July 21st, 1931, and delivered some time thereafter, the check of the department being dated October 16th, 1931.
Relator testified that the flooding began long before the institution of the condemnation proceedings and continued throughout their existence and was known to him during all of that time. Photographs were taken for relators and introduced in evidence showing conditions as they existed on January 2d, 1931, several months before the orders framing the issues on appeal were entered.
Gray testified (the Mr. De Voe referred to being his counsel in the earlier proceeding):
"Q. Now, you say you had discussed this pond situation with Mr. De Voe before you got your check? A. Yes, sir. I know the settlement had been ...