Chicago, E. & L.S.R. Co. v. Catholic Bishop of Chicago
| Decision Date | 25 January 1887 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO, E. & L. S. R. CO. v. CATHOLIC BISHOP OF CHICAGO and others. |
OPINION TEXT STARTS HERE
Appeal from county court, Cook county.
A tenant in possession is entitled to recover the value of his unexpired leasehold, and also the cost of removing his material and stock in trade, ( Ex parte Farlow, 2 Barn. & Adol. 341; Ex parte Still, 4 Barn. & Adol. 592; Ex parte Gosling, Id. 596; Re Luntley, 14 Wkly. Rep. 93; Mills v. East London, L. R. 8 C. P. 86.)
E. Walker, for Chicago, E. & L. S. R. Co., appellant.
Hynes, English & Dunne, for the Bishop, appellee.
Robert L. Tatham and Robert H. McMurdy, for William H. Baristow, appellee.
This is a proceeding instituted in the county court of Cook county by the appellant railroad company, under the eminent domain act, for the purpose of condemning a piece of land owned by the appellee the ‘Catholic Bishop of Chicago,’ a corporation sole. The appellees Baristow and Moore claim to be lessees of portions of the premises, and also to be the owners of certain improvements thereon. The property sought to be condemned is a narrow strip of ground, 585.08 feet long, and about 40 or 41 feet wide, situated on the west side of the main road from Chicago to Evanston, and between the road and the tracks of the Northwestern Railroad Company. It adjoins the station of the Northwestern Railroad Company known as ‘Calvary Station,’ and lies along-side of the railroad platform connected with the station. On the east side of the main road lies Calvary cemetery, a burying ground owned by the Catholic Bishop of Chicago. The strip in questionlies opposite the cemetery, and the south end of the strip is almost directly opposite the main entrance to the cemetery. The jury, by its verdict, awarded to the Catholic Bishop of Chicago, for his interest in the land, $9,815.50, and the court rendered judgment declaring his full compensation and damages to be that amount.
The main point made by counsel for appellant is that the damages are excessive. The case was not complicated by any consideration of damages to property not taken. The whole strip of ground was condemned, and the simple question was as to the value of the land taken. As is usual in such cases, there is great conflict in the testimony of the witnesses; those testifying for the railroad putting it at low figures, and those testifying for the owners putting it at high figures. Besides considering the evidence of the witnesses as given in their presence, the jury went upon the premises, and examined them, and exercised their own judgment as to the value. Under these circumstances, although the verdict is fully as large as the testimony warranted, yet we cannot say that it is so excessive as to justify a reversal on that account.
The testimony showed that the land in controversy had been rented as a stone and marble yard ever since 1869, and that it had been occupied for such purpose by Baristow from 1872 up to the time of the trial of this cause. There was some testimony going to show its adaptability for use as restaurant property. One witness testified that ‘it got to be an understood fact that the bishop would not rent it for any such purpose’ as the keeping of a restaurant. It does not appear, however, except from the hearsay evidence of outside parties, that the church authorities ever actually placed any restriction upon its use except for saloon purposes. Upon this subject appellant asked and the court gave an instruction, a part of which is as follows:
The court also gave, for the appellee the Catholic Bishop of Chicago, the following instruction, and several others of like import therewith: ‘(6) The jury are instructed the true measure of compensation for property to be condemned is the market value of the property; but references may be had, not merely to the uses to which the land is actually applied, but its capacity for other uses, so far as the same may be shown by the evidence, may also be considered.’
It is not claimed that the sixth instruction given for appellee lays down any erroneous or incorrect rule. It is in accord with previous decisions of this court. Haslam v. Galena & S. W. R. Co., 64 Ill. 353;Chicago & E. R. Co. v. Jacobs, 110 Ill. 414. But counsel says that this instruction, and the others of like character with it, which were given for appellee, contradict and nullify the above instruction which was given for appellant. It is urged that the language of the instructions for appellee is broad enough to justify the jury in considering the capacity of the land for use for restaurant purposes, while the instruction for appellant expressly told them that, if the bishop had refused to permit the ground to be used for restaurant purposes, his restriction upon its use for such purposes would prevent them from awarding as compensation its value for such special use. The giving of such contradictory instructions is claimed to be erroneous, on the ground that ‘the jury may well be in doubt which of the instructions give to them correctly the law, and be left to select and follow either, as it might strike them, as being most proper.’ Chicago, B. & Q. R. Co. v. Lee, 60 Ill. 501;Chicago, B. & Q. R. Co. v. Harwood, 80 Ill. 88. The objection here urged assumes that the instruction given for appe...
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