Reed v. Ohio & M. Ry. Co.

• Decision Date: 16 June 1888
• Citation: 17 N.E. 807,126 Ill. 48
• Court: Illinois Supreme Court
• Parties: REED v. OHIO & M. RY. CO.

126 Ill. 48

17 N.E. 807

REED

v.OHIO & M. RY. CO.

Supreme Court of Illinois.

June 16, 1888.

Appeal from Gallatin county court; E. D. YOUNGBLOOD, Judge.

R. Cope, for appellant.

C. A. Beecher and Hanna & Adams, for appellee.

PER CURIAM.

This was a proceeding by appellee to condemn 10 acres of land lying outside of its right of way, for the purpose of taking therefrom sand, rock, gravel, and earth for ballast, and to maintain its roadway. The petition, after averring the incorporation of petitioner, and that it has for 10 years owned and operated, and is now operating, a line of railway through Gallatin county, avers that by an act of the legislature of Illinois, approved February 25, 1867, a charter was granted to the Illinois Southeastern Railway Company, by which it was authorized to build, construct, equip, and maintain a railroad through Gallatin county, and for that purpose to condemn right of way; and in addition thereto said railway company was authorized and empowered by its charter to condemn other lands besides that required for right of way, for the purpose of procuring sand, gravel, stone, and earth and other material for the purpose of constructing and maintaining said railroad. That under certain foreclosure proceedings against said Illinois Southeastern Railway Company, the petitioner, by purchase, became the owner of all the property, rights, and franchises belonging to said railway, whereby petitioner became authorized and empowered to operate and maintain said railroad, with all the rights, powers, and franchises delegated to said last-named company by virtue of its charter and the laws of this state. That in order to procure rock, gravel, earth, and sand to properly ballast and maintain said railroad and improve the same, it is necessary to take and appropriate other lands than that included in the right of way thereof through Gallatin county. The land sought to be taken is then described, and it is averred that the company has in said county no suitable material for the purposes named, on its right of way. It is alleged that appellant, who is made defendant, is the owner of the land sought to be appropriated. The defendant, appellant, answered, denying each material allegation of the petition except the ownership of the land sought to be appropriated. The case was submitted to a jury, who returned a verdict fixing the compensation to be paid the land-owner, and the court entered the usual order thereon.

While under the statute no other pleading than the petition is required, it is manifest that the answer filed neither enlarged nor restricted the burden cast by law upon the petitioner, to make such a case as clearly entitled it to take and appropriate the land sought to be taken. Smith v. Railroad Co., 105 Ill. 511.

It is contended by appellee railway company that under and by virtue of the deed of the master in chancery, made, as is alleged, in pursuance of a decree of foreclosure against the Illinois Southeastern Railway Company, it succeeded to all the rights, privileges, and franchise of said last-named company, and is by the charter of said company authorized to appropriate the land of appellant for the purposes shown. No discussion of this question is necessary, as no conveyance of the property and franchise of the Illinois Southeastern Railway Company is shown in this record. The petitioner introduced in evidence a mortgage made by said company, and a deed executed by the master in chancery of the circuit court of the United States for the Southern district of Illinois, purporting to be made in punsuance of a decree of foreclosure entered in said court, conveying the property and franchise of said corporation to one Bloodgood, and conveyances vesting whatever title Bloodgood derived by said master's deed, in petitioner; but no proceeding or decree upon which said deed was based was produced. By section 33, c. 72, Rev. St., the master's deed is made prima facie evidence that the provisions of the law relating to the sale has been complied with, and it is only in case of the loss or destruction of the record of the decree that such deed becomes prima facie evidence of the recovery and existence of the decree. If petitioner desired to insist upon any right acquired under that deed, it should have produced a decree of the court authorizing a sale and deed. The deed is evidence of the regularity of the sale,...