Indiana, I.&I.R. Co. v. Stauber

• Decision Date: 17 April 1900
• Citation: 56 N.E. 1079,185 Ill. 9
• Parties: INDIANA, I. & I. R. CO. v. STAUBER et ux.
• Court: Illinois Supreme Court

185 Ill. 9

56 N.E. 1079

INDIANA, I. & I. R. CO.

v.STAUBER et ux.

Supreme Court of Illinois.

April 17, 1900.

Appeal from Lasalle county court; H. W. Johnson, Judge.

Condemnation proceeding by the Indiana, Illinois & Iowa Railroad Company against Adolph Stauber and Mary Stauber. From a judgment fixing the compensation to be paid defendants, and an order denying a new trial, plaintiff appeals. Affirmed.Cary & Walker and Reeves & Boys, for appellant.

P. J. Lucey and V. J. Duncan, for appellees.

This was a proceeding commenced by the Indiana, Illinois & Iowa Railroad Company, in the county court of Lasalle county, to condemn the right of way for appellant's railroad company across the land of appellees. The petition was filed on the 17th day of October, 1899, in the office of the clerk of the county court, on one of the regular days of the September term of the Lasalle county court, but was addressed to the November term,-the next succeeding term of that court. Summons was issued on the same day the petition was filed, and was returned served personally on Adolph Stauber and Mary Stauber, the appellees, and commanded them to appear on the first day of the November term of the county court. The record shows that the petition was not presented to the county judge in vacation, and shows that no order was made by him fixing a day for hearing the same in vacation, or any special venire for jurors. The trial was begun on the first day of the November term, before a regular panel of jurors duly summoned for the trial of cases at that term. The amount of land proposed to be taken for right of way is about 3/20 of an acre near the outskirts of the city of Streator, in Lasalle county, and it passes within about 10 feet of appellees' factory. This factory building is constructed of brick, about 45 feet wide by 120 feet long, and three stories high. It is fitted with machinery for the purpose of manufacturing pantaloons, linen suits, and shirts, and it requires from 150 to 200 employés to carry on appellees' business. Appellee Adolph Stauber filed a cross petition, setting up that on the said tract of land, and immediately adjoining the strip of land sought to be condemned, is situated this large three-story factory, and that the south line of the factory, at the southeast corner, will be but 10 feet from the right of way, and that the southwest corner thereof will be about 10 feet from that point; that immediately west of the factory, and about 80 feet from it, is situated a large two-story frame building, used by cross petitioner as a warehouse for the storing of his clothing and woolen goods manufactured, and also partly used as a stable; that between these two buildings stands the engine house, used in and about the business; that the warehouse building will, at the southwest corner, be only about 1 foot from the proposed right of way, and that the southeast corner will be less than 3 feet therefrom; that immediately north of the buildings is his residence; that the taking of this strip of land by the railroad will cut off his access to his factory and warehouse and property on the south side thereof, and will greatly inconvenience and damage him in and about the operation of his property, and will greatly lessen the value thereof, and depreciate its value; that the factory and warehouse will be in great danger of being set on fire by engines passing to and fro, and will be greatly damaged by dust, cinders, ashes, and gases, and by smoke thrown out upon the premises and into the factory and warehouse by engines and cars passing over and along the railroad; that the insurance rate will be advanced about 25 per cent. more than he is at present obliged to pay, which will be a lasting and continuing damage and loss to cross petitioner; that the construction and operation of the railroad over and upon the strip of ground will greatly depreciate in value all his property thereto adjoining, in addition to the amount of compensation to be assessed for land actually taken. A hearing was had, and the cause submitted to a jury, who returned a verdict fixing the compensation to be paid defendant Adolph Stauber for the land actually taken as right of way through his land at $87.50, and for damages sustained to the tract of land and to all other real estate owned by him or in which he has an interest, and which is described in the petition and cross petition, and not actually taken for right of way, at $1,000. Motions for a new trial and in arrest of judgment were overruled, and petitioner appealed.

CRAIG, J. (after stating the facts).

It is first insisted upon by appellant that the court erred in holding that, when a condemnation proceeding is heard by a jury chosen from the regular panel, it is not an essential qualification of a juryman that he should be a freeholder. By the statute on eminent domain (Rev. St. c. 47, § 2) the corporate or municipal authority, public body, officer, agent, person, etc., desiring to take private property for public use without the owner's consent, where the compensation to be paid for cannot be agreed upon by the parties interested, may ‘apply to the judge of the circuit or county court, either in vacation or term time, where the said property or any part thereof is situate, by filing with the clerk a petition, setting forth, by reference, his or their authority in the premises, the purpose for which said property is sought to be taken or damaged, * * * and praying such judge to cause the compensation to be paid to the owner to be assessed,’ etc. If the application is to the judge in vacation, more than the ‘filing’ of the petition is required. Section 3 provides: ‘If such petition be presented to a judge in vacation, the judge shall note thereon the day of presentation, and shall also note thereon the day when he will hear the same, and shall order the issuance of summons to each resident defendant, and the publication of notice as to each nonresident defendant, and the clerk of the court shall at once issue the summons and give the notices accordingly.’ Section 6 provides for calling a jury in vacation where the judge has fixed the time for hearing the petition in vacation, and applies only in such cases, and there is no provision made for obtaining a jury where the cause is to be heard in term time. It was said in Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491, 496, 30 N. E. 1050, 1051: ‘There is no provision made for obtaining a jury where the cause is to be heard in term time, and it follows, necessarily, we think, that the compensation is to be ascertained by the jury regularly impaneled for the term. The panel having been selected according to the statute regulating the selection and choosing of jurors for the court, a jury is provided for the ascertainment of compensation as ‘prescribed by law.’ * * * In the case last cited [Haslam v. Railroad Co., 64 Ill. 353] we held that section 6 should be construed to read that ‘in cases fixed in vacation for hearing it shall be the duty of the clerk,’ etc., and it is clear that without the order of the judge fixing a day for the hearing there...