Lieberman v. Chicago & S.S.R.T.R. Co.

Citation30 N.E. 544,141 Ill. 140
CourtIllinois Supreme Court
Decision Date24 March 1892
PartiesLIEBERMAN v. CHICAGO & S. S. R. T. R. CO.

OPINION TEXT STARTS HERE

Appeal from circuit court, Cook county; FRANK BAKER, Judge.

Condemnation proceedings by the Chicago & South Side Rapid Transit Railroad Company against Abraham Lieberman. Defendant appeals. Affirmed.Moses & Pam, for appellant.

E. J. Harkness, Cooper & Gurley, and Wm. Garnett. Jr., (John P. Wilson, of counsel,) for appellee.

BAILEY, J.

This was a petition by the Chicago & South Side Rapid Transit Railroad Company to condemn certain lands, lying along the west side of and adjoining the alley running north and south between State street and Wabash avenue, Chicago. The petition embraced various parcels of land not in controversy here; Abraham Lieberman, one of the property owners whose lands were sought to be condemned, being the only appellant. Lieberman's property consists of a number of lots fronting on State street, between Fourteenth and Sixteenth streets, and running back to the alley, viz., lots having a frontage of about 69 feet, of which he is the owner in fee; also lots immediately adjoining the same on the south, having a frontage on State street of 127 feet, in which he has a leasehold interest under a lease expiring May 1, 1897; and also three other lots, having a frontage on State street of 60 feet, and lying south of the foregoing, and separated therefrom by an intervening lot 25 feet in width, and on which he has a leasehold interest as tenant from year to year. The strip of land sought to be taken from the rear of these lots adjoining the alley, for right of way, varies in width from 20 to 25 feet. At the time the petition was filed, Lieberman was, and for several years prior thereto had been, extensively engaged in the business of buying, selling, and dealing in old iron, and was occupying said lots for carrying on said business. He claims that the taking of said strip of land will leave the portion of his premises remaining wholly inadequate to the requirements of his business, and that he should be allowed as damages, in addition to the value of the land taken, the depreciation in the value of the land not taken, the cost of the removal of his business, machinery, fixtures, and stock in trade to another location, and compensation for the interruption of his business during such removal. The cause was tried by a jury, who, after having heard the evidence and viewed the premises, awarded certain sums of money to the owners and parties interested in the several pieces of land taken as compensation therefor, but in each case found that there were no damages to the portion of said lots not taken. The sum thus awarded for the parts of the lots which Lieberman owned in fee, taken for said right of way, was $5,748.75. They also awarded him, for improvements, cost of removal, and damages to business on lands or lots owned or occupied by him, the sum of $4,000. The court, after denying Lieberman's motion for a new trial, gave judgmentin accordance with said verdict, and from that judgment he has appealed to this court.

It is strenuously urged that the compensation and damages are inadequate, and that for that reason a new trial should be awarded. As is not unusual in cases of this character, the opinions of the witnesses as to the value of the land taken, and as to the damages to the land not taken, are widely divergent. The evidence adduced on behalf of the appellant, taken by itself, would doubtless have warranted a larger award; but, when all the evidence is considered together, we are unable to say that substantial justice has not been done. We shall not undertake the useless task of giving in this opinion an analysis of the evidence, but shall content ourselves with the general statement that we have examined it with care, and have been brought to the conclusion that it supports and warrants the verdict. A number of legal propositions are raised, which, so far as we deem them material, we shall proceed to notice.

At the trial before the jury, no evidence seems to have been adduced in support of the averment of the petition that the petitioner was unable to agree with Lieberman and the other respondents as to the compensation to be paid them in respect to the property proposed to be taken; and it is urged that the absence of such evidence goes to the jurisdiction of the court, and that the motion by Lieberman's counsel, made at the close of the petitioner's evidence, to dismiss the petition for want of jurisdiction, should therefore have been sustained. It may be admitted that an averment, in the petition by a railway company to condemn land for right of way, either that the compensation to be paid for or in respect to the property sought to be appropriated or damaged for such purpose cannot be agreed upon by the parties interested, or that the owner of the property is incapable of consenting, or that his name or residence is unknown, or that he is a non-resident of the state, is, by the second section of the eminent domain law, made jurisdictional. Rev. St. c. 47, § 1; Reed v. Railway Co., 126 Ill. 48, 17 N. E. Rep. 807; Chaplin v. Highway Com'rs, 129 Ill. 651, 22 N. E. Rep. 484. But, while this is so, the question of the right of the petitioner to maintain its petition was not before the jury, and was a matter with which they had no concern. In condemnation cases the jury is impaneled merely to ascertain and report the just compensation to the owner of the property sought to be taken or damaged. This is apparent from the form of their oath as prescribed by section 8, and by the terms of their verdict as required by section 9, of the eminent domain law. The question of the right to condemn is preliminary, and is for the court, and must be determined in favor of the petitioner before the right to have a jury impaneled to fix the compensation can arise. The property owner has the undoubted right to controvert the petitioner's right to condemn, and when he does so the burden is thrown on the petitioner to maintain its right by proper proofs. But where the property owner fails to make such contest in any proper manner the right to condemn will be deemed to be admitted, leaving the amount of the compensation to be awarded as the only matter in controversy. Thus, in this case, Lieberman was at liberty to controvert the averment of the petition that the petitioner was unable to agree with him as to the compensation to be paid in respect to the property sought to be taken, and if he had done so the burden would have been thrown on the petitioner to prove said averment in order to establish its right to condemn; but the evidence on this question would have been addressed to the court, and the issue thus raised would have been one which, in the ordinary course of procedure, should have been determined before a jury could be called. This rule of practice was considered in Ward v. Railroad Co., 119 Ill. 287, 10 N. E. Rep. 365, where, after verdict of the jury assessing compensation, it was objected that no evidence of the corporate existence of the petitioner had been adduced at the trial. In overruling that objection, we said: ‘No question is made as to the form or sufficiency of the petition, but it is objected no proof was made on the trial that petitioner was either a de jure or de facto corporation; and it is insisted that the omission to make such proof is fatal to the present condemnation judgment. * * * Defendant waived the making of such proof by going to trial on the merits of the controversy, without objection. Even if proof is required to be made of the formal allegations of the petition, such proof is addressed to the court, and not to the jury. Whether the petitioner in such cases is a corporation, and is authorized to exercise the right of eminent domain, is a question to be determined by the court, and with which the jury have no concern. It is a preliminary question; and if the land-owner goes to trial on the merits, without requiring such proof to be made, it will be understood he waives the making of the proof, and admits the capacity in which the petitioner sues. The fact that no formal answer may be required to be made to the petition, under the practice that prevails in this state, would not prevent defendant from objecting that petitioner shall not proceed to ascertain the compensation to be paid until proof is made it is a corporation, either de jure or de facto, under the law, and as such is authorized to exercise the right of eminent domain. In this case defendant went to trial on the merits, without objection as to the right of petitioner to condemn his land for public purposes, and he will be held to have waived the necessity of making proof of such right.’ In the present case, not only was no objection made to the petitioner's proceeding to ascertain the compensation to be paid because of its not having established its right to condemn, but Lieberman's counsel came and entered their appearance in writing, and by the same instrument expressly requested a trial by jury as by law provided. They then took part, without objection, in the impaneling of the jury, and the submission to them of the question of fixing the amount of compensation to be paid their client, and contested that question on the merits. By so doing, they waived all contest as to the petitioner's right to condemn, and thereby impliedly admitted such right; and they cannot now be permitted, on being disappointed as to the amount of the jury's award, to retrace their steps, and contest questions which were clearly preliminary to a jury trial.

It is next contended that the court erred in admitting in evidence to the jury the petitioner's articles of incorporation, on the ground that the petition was filed to...

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