Chicago Southern Ry. Co. v. Nolin

• Decision Date: 17 April 1906
• Citation: 221 Ill. 367,77 N.E. 435
• Parties: CHICAGO SOUTHERN RY. CO. v. NOLIN.
• Court: Illinois Supreme Court

221 Ill. 367

77 N.E. 435

CHICAGO SOUTHERN RY. CO.

v.NOLIN.

Supreme Court of Illinois.

April 17, 1906.

Appeal from Iroquois County Court; Frank Harry, judge.

Proceedings by the Chicago Southern Railway Company against William T. Nolin to condemn a right of way over defendant's farm. From a judgment authorizing plaintiff to take possession of the strip of land required on payment to defendant of respective sums awarded by the verdict of a jury, the railroad company appeals. Affirmed.J. L. O'Donnell, T. F. Donovan, and Morris & Hooper (Montgomery & Hart, of counsel), for appellant.

Dyer & Wallbridge and O. F. Morgan, for appellee.

Appellant, the Chicago Southern Railway Company, filed a petition in the county court of Iroquois county for condemnation of a strip of land across the farm of William T. Nolin, the appellee, which is situated in Iroquois county. The strip extends north and south through the farm. The south 950.7 feet of the strip is 200 feet in width and the balance is 100 feet in width. Nolin filed a cross-petition, praying that damages to the balance of the farm, caused by the location, construction, and operation of the railroad, be ascertained and awarded to him in said proceeding. A trial was had before a jury, and a verdict returned awarding Nolin $1,527.63 as compensation for the land proposed to be taken and $5,000 as damages to the balance of the farm. The court entered an order and judgment authorizing the railway company to take possession of the strip of land described in its petition upon payment to Nolin of the respective sums awarded to him by the verdict of the jury. The railway company appeals to this court.

The farm of appellee consists of 348 acres in a compact body. The proposed right of way extends through the middleof the farm, leaving approximately 163 acres on the east side thereof and 174 acres on the west side. The right of way itself takes 11.751 acres. The farm has been used for a number of years by Nolin for raising registered stock and is well adapted for that purpose. Sugar creek, which supplies water for stock purposes, runs across the southeast corner of the farm, but does not touch any of the land west of the proposed right of way, and there is no water for stock on that side. Numerous frame buildings are located on the farm. On the right of way are a large corncrib, with a capacity of over 10,000 bushels of grain, a covered feed rack and a scalehouse. It was agreed upon the trial that the jury should award $500 as damages to the land not taken on account of the expense of removing these buildings from the right of way, and by stipulation it was agreed that Nolin should retain the ownership of these buildings, and should have until June 10, 1905, to remove them from the right of way. Commencing 125 feet east of the right of way and extending east for a distance of about 500 feet are numerous frame buildings, consisting of a sheep barn, horse barn, cattle barn, granary, buggy shed, toolhouse, residence, smokehouse, hog-house, and poultry houses. The barns, sheds, and granary are connected with feed lots. The feed lot surrounding the cow barn contains a grove, consisting of about 160 walnut, oak, wild cherry, and locust trees. These trees furnish shade and protection for the stock. The right of way takes part of this feed lot and about 70 of the trees. Two houses for tenants are on other parts of the farm; one being about 250 feet west of the right of way and the other in the northeast corner of the farm.

The petitioner stipulated that it would construct two farm crossings on its right of way on the farm at certain designated points; that it would extend certain tiling, which terminates west of its right of way, so that water emptied from the tile would not be obstructed by the right of way; that it would construct a bridge over Sugar creek immediately south of Nolin's farm, with such spans as may be required by law in order not to unnecessarily impair the usefulness of the stream, and that it would erect a legal fence on each side of the strip as soon as rails were laid on the right of way.

The jury viewed the premises before returning their verdict.

It was stipulated before trial that the fair cash market value of the land taken is $130 per acre, amounting in the aggregate to $1,527.63, which is the amount awarded therefor by the jury. The only controversy in the case relates to the damages to the remainder of the farm.

Appellant assigns as error the action of the trial court in refusing to exclude the testimony of certain witnesses for appellee, the giving of appellee's fourth and ninth instructions, and the refusal to give appellant's first, second, and third instructions.

SCOTT, J. (after stating the facts).

At the close of all the evidence in the case the petitioner moved the court to exclude from the consideration of the jury the testimony of one Lockhart, a witness who testified on behalf of Nolin as to the damages to lands not taken, for the reason that he included in his estimate improper elements of damages. The motion was denied. The same motion was made as to the testimony of other witnesses who testified on Nolin's behalf. Petitioner here contends that it was error to overrule these motions. These witnesses, after testifying on...