Chicago v. Abbott

• Decision Date: 17 April 1905
• Citation: 215 Ill. 416,74 N.E. 412
• Court: Illinois Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. ABBOTT.

215 Ill. 416

74 N.E. 412

CHICAGO, B. & Q. R. CO.

v.ABBOTT. ^*

Supreme Court of Illinois.

April 17, 1905.

Appeal from Circuit Court, Hancock County; John A. Gray, Judge.

Ejectment by Charles Abbott against the Chicago, Burlington & Quincy Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.G. Edmunds, David E. Mack, and Wm. C. Hooker, for appellant.

Charles J. Scofield, for appellee.

Appellee obtained a judgment in an action of ejectment against appellant in the Hancock circuit court at the October term, 1904, and appellant prosecutes this appeal and assigns errors upon the record.

At the hearing appellant offered twelve propositions of law to be held or refused by the court, and the court held two of them and refused all the others, and appellant excepted, and the questions of law are by them presented. Other questions were raised as to the admissibility and rejection of the evidence offered, and will be referred to later in this opinion.

The land in controversy is in the northeast quarter of section 35, in township 6, range 7 west, in Hancock county, and lies along the eastern boundary line of appellant's right of way, and is a strip 49 1/2 feet wide and nearly half a mile long. It lies north of appellant's depot grounds, and adjoining the same, at Ferris, a station in said county.

The declaration contained a number of counts, but the judgment was upon the seventh count. No question is made as to the pleadings.

At Ferris Station is the crossing of appellant's road with the Toledo, Peoria & Western Railroad. An affidavit of common source of title was filed by appellee, and not denied by appellant. The record disclosed that in 1859 Franklin Anderson, of Green county, Ky., purchased the northeast quarter of said section 35, of which the land in controversy is a part, and obtained a deed to it, which was placed of record in Hancock county August 24, 1859. In the spring of 1874 said Anderson fenced his land, and included within his inclosure the strip of land in controversy, and, by himself and tenants, had actual and open possession thereof thence to his death. In 1891 said Franklin Anderson died intestate, and left, him surviving, James G. Anderson and Mary Vaughn, his children and only heirs at law, and they, through their tenants, had possession of the land from the death of their father until the fall of 1894, when appellant, who up to that time had had its right of way fenced, elevated or raised the fence along the eastern boundary of its right of way, and moved the same 49 1/2 feet east, taking in the strip of ground in controversy. Franklin Anderson also died seised of the southeast quarter of the same section. In September, 1898, the son and daughter of Franklin Anderson made partition of said lands by deeds of release, Mary Vaughn taking the southeast quarter, and the said James G. Anderson the northeast quarter, of said section. Mary Vaughn then conveyed to appellee the southeast quarter, and on March 18, 1901, the son, James G. Anderson, conveyed the northeast quarter of said section to the appellee, ‘except the land then owned and occupied by the two railroad companies.’ On March 13, 1903, James G. Anderson and Mary Vaughn, by their quitclaim deed of that date, for the consideration of $100, conveyed to appellee all their right, title, and interest, of every kind and nature, in and to the quarter section upon which the tract in controversy is. By the above conveyances appellee became seised of all the land, subject to whatever legal rights, if any, the appellant had in the same. The strip in controversy is no part of the right of way of appellant.

By an act of the Legislature of this state approved March 8, 1867 (2 Laws 1867, p. 622), the Carthage & Burlington Railroad Company was incorporated, and given authority to construct a railroad from Carthage, in Hancock county, to East Burlington, in Henderson county, and was authorized to acquire as right of way a strip 100 feet wide the length of the road, and such other grounds as were necessary for depots, side tracks, shops, and other appurtenances of said road, and, if the same could not be had by agreement with the owner or owners of the ground, the company was authorized to proceed to condemn the same by virtue of any public laws of this state. There was also conferred upon it by the act ‘all the powers conferred upon * * * Illinois and Southern Iowa Railroad Company by virtue of any laws of this state.’Appellant is the successor in ownership of the Carthage & Burlington Railroad Company. The road was built in the years 1869 and 1870, and appellant claims that the strip of land in question was obtained by the Carthage & Burlington Railroad Company by condemnation for depot or ‘Y’ and switch purposes, in addition to its right of way of 100 feet. In support of this contention, appellant offered in evidence a petition for condemnation filed with one John M. Ferris, a justice of the peace of Hancock county, on April 26, 1870, to which was attached a copy of the charter act of said Carthage & Burlington Railroad Company. The petition, by plat and other sufficient description, called for the land in controversy. Appellant also offered the record or docket of the justice of the peace which contained the entries made by him, together with a copy of the alleged report of three householders of said county who had been summoned and sworn to examine the ground and assess the damages which the owners of property would sustain. Appellee objected to the introduction of the petition, the justice's docket, and the report of the householders, and the court sustained the objection, and appellant excepted.

The ground of the objection by appellee was that the record failed to show the service of process or notice upon the owners of the land, and that the report of the householders or commission appointed by the justice to assess the damages did not show that the land in controversy was taken into consideration, or that the damages were assessed or considered in any manner, by them. The particular strip or tract in controversy is in no way described in the report. As to what the report covers or the commissioners did in estimating or assessing the damages, the report states: ‘That taking and allowing for use of said company for right of way of its said railroad a strip of land one hundred feet wide, or fifty feet wide on each side of the center line of the main track of said railroad, and taking and allowing for right of way of the side or ‘Y’ track connecting the main track of said railroad with the track of the Toledo, Wabash and Western Railway a strip of land sixteen feet wide, or eight feet wide on each side of the center line of said side or ‘Y’ track, they do assess the damages which they believe the owner or owners of said lots and tracts of land have sustained or will sustain, over and above the additional value which said lands have derived or will derive from the construction of said railroad, in the manner following.' It is admitted that the expression contained in the above clause, ‘taking and allowing for right of way of the side or ‘Y’ track connecting the main track of said railroad with the track of the Toledo, Wabash and Western Railway a strip of land sixteen feet wide, or eight feet wide on each side of the center line of said side or ‘Y’ track,' does not refer to the land in controversy, but does refer to a side or ‘Y’ track at Carthage, in said county. The only other entry in the report with reference to the land is: ‘Name of owners, Franklin Anderson; description of lot and land, east half section 35, T. 6, N., R. 7, W.; No. of acres, _____; amount of damages, none.’

Appellant insists that the action of the court in refusing to admit the above evidence was error; that it was not necessary that notice be given to the landowner, as none was required by the statute; and that, if the report of the commissioners is deficient in the respect contended by appellee, it is cured by a reference to the petition, which, by plats and other description, sufficiently pointed out the tract in controversy. In support of this contention, appellant says that the proceeding was under the act of 1845, entitled ‘Right of Way,’ and designated in the statutes as chapter 92 (Rev. St. 1845, p. 477); that the act chartering the Illinois & Southern Iowa Railroad Company provided among other things, that it might proceed to condemn land under said chapter 92 of the Revised Statutes, entitled ‘Right of Way’; that said last-named railroad was chartered by special act of February 12, 1857 (Laws 1857, p. 524), and, as the act incorporating the Carthage & Burlington Railroad Company conferred upon it all the powers of the Illinois & Southern Iowa Railroad Company, the power to condemn land under the act of 1845 was as much conferred upon the said Carthage & Burlington Railroad Company as if so expressly provided in the act. To this contention appellee replies that, although it is not so expressly stated in the act of 1845, nevertheless a proper construction of that act requires that notice should be given to the landowner, and that, whether that position be sustained or not, the act of June 22, 1852 (Laws 1852, p. 146), which was amendatory of the act of 1845, was in force at the time the charters of the Carthage & Burlington Railroad Company and of the Illinois & Southern Iowa Railroad Company were enacted, and that the latter act required, by express terms, notice to the landowners, and that when the Carthage & Burlington Railroad Company, in April, 1870, filed its petition for condemnation, the act of March 8, 1869 (Laws 1869, p. 373), which amended the act of 1852, was in force, and by section 2 of that act it is provided: ‘The provisions of this act, and of the act to which this is an amendment, shall apply to all proceedings for the condemnation of lands by any railroad company heretofore incorporated or which may...