Emerson v. the Western Union R.R. Co..
| Decision Date | 30 September 1874 |
| Citation | 75 Ill. 176,1874 WL 9213 |
| Parties | RALPH EMERSONv.THE WESTERN UNION RAILROAD COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.
This was a proceeding instituted by the appellee against the appellant to have compensation ascertained for real estate previously taken as a right of way. The facts of the case are stated in the opinion.
Mr. WILLIAM LATHROP, for the appellant.
Mr. JAMES M. WRIGHT, for the appellee.
We are of the opinion that appellee's counsel has demonstrated, by reference to public laws, that appellee, at the time of commencing this proceeding, was authorized to exercise the right of eminent domain. Besides, the petition contains an allegation of such authority as required by the statute, and after filing the petition, but before the appointment of commissioners, appellant appeared, filed a written protest as ground for a motion to quash the proceedings for want of jurisdiction apparent upon the face of the petition. The latter was under the act of 1852, and filed with the clerk of the circuit court November 27, 1871. On said protest a motion was made, at the January term, 1872, to quash the proceedings, which was overruled, and appellant taking no steps to raise any issues upon the petition by answer traversing any of its allegations, commissioners were appointed.
In chancery, an objection on the ground of jurisdiction, if apparent upon the face of the bill, may be taken by demurrer; if not, by plea. In this State, the objection, if apparent on the face of the bill, may be taken by motion to dismiss. In such cases the motion is regarded as having the same effect as a demurrer, and admits all facts well pleaded. We cannot, consistently with the analogies of rules of practice, regard the effect of the motion based upon the protest against the jurisdiction, otherwise than as admitting all facts in the petition well pleaded, because it was in the nature of a demurrer.
The commissioners appointed made a report July 15, 1872, assessing appellant's damages. The new law in reference to the exercise of the right of eminent domain went into force July 1, 1872. Appellant, however, after the report of commissioners, took an appeal therefrom to the circuit court, pursuant to the statute of 1852, and then, at the October term, 1872, of the court, made a motion that the proceedings be dismissed, on the ground that the act of 1852, under which they were begun, was repealed when the eminent domain statute of 1872 went into effect, July 1 of that year. This motion was over ruled by the court, a jury empanneled, and appellant's damages assessed. The same motion was then renewed, overruled, and the same ground is here urged as error. We shall enter into no discussion of the provisions of the different statutes, because it is a sufficient answer to counsel's position that the circuit court had jurisdiction of the subject matter, and as the proceedings there would be the same under either statute, the appeal taken by himself conferred jurisdiction of the person.
It appears that, at the time this proceeding was commenced, there was a railroad track already laid upon the lands of appellant sought to be condemned, which had been constructed some fifteen years previously by the Racine & Mississippi R. R. Co., put into use as part of a line of railway by that company, and by it and the appellee, the successor of that company, operated ever since.
On the hearing, appellant insisted that the road having been placed on his land without condemnation and compensation,...
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