specially concurring:
I concur with both the result and the reasoning set forth in the majority opinion. Based on the record before the court, I believe there are additional facts which support the decision of this court.
Since 1955 the sanitary sewerage system, which included the sewage treatment plant and collector lines, was owned and operated by Suburban Utilities Co. (hereinafter Suburban). In 1956 Citizens purchased, and since that date, owned the stock of Suburban.
On May 11, 1962, the Village filed in the Circuit Court of Cook County an eminent domain action to acquire the entire sewerage system, including the real estate involved in the instant litigation. This action named, among others, Citizens and Suburban as defendants.1 Prior to commencing the eminent domain litigation, the Village was authorized on April 25, 1962 by the Illinois Commerce Commission to institute the action against a certificated public utility. (See Ill. Rev. Stat. 1961, ch. 47, par. 1 et seq.) Citizens filed a traverse to, and a motion to dismiss said eminent domain petition challenging, for various reasons, the legal sufficiency of said petition. On December 4, 1962 the circuit court denied the motion to dismiss and traverse.
On December 18, 1962, Metropolitan served notice upon the Village and Suburban of the availability of its interceptor sewerage system. Thereafter, on December 27, 1962, the local collector sewer lines within the Village were connected to the Metropolitan interceptor and service at the treatment plant terminated. The record further discloses that on December 29,1962, the treatment plant site was the subject of a quit-claim deed from Suburban to F & S Construction Co. — the original subdivider and developer; the deed was recorded on June 11, 1964.
On October 18, 1963, an agreement was reached between the Village and Citizens, with respect to the said eminent domain action for the sale of the sewerage system excluding the subject treatment plant site; the consideration was $1,642,176.00.2 The purchase was to be consummated January 7, 1964.
On January 17, 1964, Citizens and the Village stipulated to an order dismissing the eminent domain action. The stipulation, among other things, said “* * * and all matters in controversy having been satisfactorily settled by and between the parties,”
In Illinois, it has long been held that in eminent domain actions, title to real estate relates back to the time of the filing of the petition to condemn and rights existing against the land at that date are transferred as a part of the award. (See Chicago v. McCausland (1942), 379 Ill. 602, 604-05, 41 N.E.2d 745; 17 I.L.P. Eminent Domain §163 (1956).) As stated in the aforesaid case, “It is also said that in law the land is regarded as being taken at the time the petition for eminent domain is filed. [Citations.]” See also Board of Junior College District 504 v. Carey (1969), 43 Ill.2d 82, 250 N.E.2d 644.
When Metropolitan served (on December 18, 1962) its notice on the Village and Suburban to connect to its interceptor, the record o£ the eminent domain action indicated the Village had an eminent domain action on file which had withstood a traverse and motion to dismiss. Therefore, the Village had a primary interest in the connection of the interceptor and the effect on the sewage treatment plant. It is recognized that the Village, as a condemnor, could have abandoned its eminent domain action subject to the sanctions of section 10 of the Eminent Domain Act. Ill. Rev. Stat. 1961, ch. 47, par. 10.
Of course, we do not know the reasons for the agreement between the Village and Citizens in the said eminent domain proceedings, and the exclusion of the treatment plant from the agreement. However, the simple fact is that the record clearly demonstrates that Citizens had a proper forum (in the eminent domain case) in which to resolve the question of damage, if any, to the treatment plant and its site as the result of the connection of the sewers to Metropolitan’s interceptor and the amount of “just compensation” as provided in our Illinois Constitution.3
Whatever the tactical reasons may have been which caused Citizens at that time to abandon its right in the eminent domain case for “just compensation” for the taking by the Village of the treatment plant and site, I have been unable to find anything in this record which would legally justify transferring to Metropolitan the duty to pay Citizens such “just compensation.”
Also, named as defendants were Citizens Utilities Co., a Delaware corporation (who was dismissed), and “Unknown Owners." The petition sought to acquire both the sewerage and water systems owned by Citizens and operated in the Village.
At the same time, the Village also purchased and acquired Citizens’ water system located in the Village.
3 Metropolitan did not press this point on appeal.