Booker v. the Venice

• Decision Date: 18 January 1882
• Citation: 1882 WL 10164,101 Ill. 333
• Parties: JAMES M. BOOKERv.THE VENICE AND CARONDELET RAILWAY COMPANY.
• Court: Illinois Supreme Court

101 Ill. 333

1882 WL 10164 (Ill.)

JAMES M. BOOKER

v.THE VENICE AND CARONDELET RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

APPEAL from the County Court of St. Clair county; the Hon. F. H. PIEPER, Judge, presiding.

Mr. FRANK B. BOWMAN, for the appellant.

Messrs. G. & G. A. KŒRNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The Venice and Carondelet Railway Company presented a petition to the county judge of St. Clair county, in vacation, for the purpose of condemning the right of way on which to construct its track over certain lands in that county. The lands are specifically described by metes and bounds. They are alleged to belong to John B. Bowman, and that James M. Booker claims a possessory right in one of the lots, which it is alleged will continue until the first day of September, 1881. It is alleged that the company was not able to acquire the title or the right of way over the premises by purchase or voluntary grant from Booker or Bowman. The petition prays for a summons, and that the damages be ascertained according to law. The county judge indorsed an order for a summons, and fixed the time for a hearing on the 24th of June, 1881, and the same was filed on the 10th of that month, and a summons was issued, returnable as ordered. The sheriff returned that he had served Booker on the eleventh, and Bowman on the fifteenth of the month. Booker filed an answer, in which he denies all of the allegations in the petition, except that he has an interest in lot 47 of Cahokia commons. He alleges that he holds a written lease for the same, dated March the 1st, 1880, for the term of five years; that he is residing thereon, and claims that the taking of the right of way will damage him $1000. A hearing was had as to Booker on the day set for trial, but as to Bowman the cause was continued until the 27th of the month. The jury assessed the damages sustained by Booker at $70. Motions for a new trial and in arrest of judgment were entered, but overruled by the court, and a judgment that petitioner might enter on paying the $70. An appeal was prayed and granted, and the record is brought to this court, and errors assigned by appellant.

It is insisted, that this being a statutory proceeding, according to uniform authority every requirement of the statute must appear by the record to have been pursued, and nothing can be presumed in its favor; that under this rule the petition is fatally defective in failing to allege that the compensation to be paid for or in respect of the property sought to be appropriated or damaged for such purpose, could not be agreed upon by the parties; that this is the requirement of the statute, and an inability to agree upon the compensation to be made for the damages sustained, is indispensable to give the court jurisdiction of the subject matter of the dispute; that the allegation that petitioner “has not been able to acquire the title, nor the right of way over the land, by purchase or by...