City of Winchester v. Ring

• Decision Date: 11 June 1924
• Docket Number: No. 15850.,15850.
• Parties: CITY OF WINCHESTER v. RING.
• Court: Illinois Supreme Court

312 Ill. 544

144 N.E. 333

CITY OF WINCHESTER

v.RING.

No. 15850.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied with Modification June 11, 1924.

Eminent domain proceedings by the City of Winchester against William H. Ring. From a judgment awarding damages, defendant appeals.

Affirmed.Appeal from Scott County Court; J. M. Riggs, Judge.

Williams & Williams, of Carthage, and T. J. Priest, of Winchester, for appellant.

John A. McKeene, of Winchester, for appellee.

STONE, J.

Appellee filed in the county court of Scott county a petition under the Eminent Domain Act, seeking to condemn for cemetery purposes a parcel of land containing 11.57 acres belonging to appellant. This tract lies in the northwest corner of appellant's farm. A cemetery joins this tract on the west. An east and west public highway bounds it on the north. The city limits of the city of Winchester extend through the western portion of this tract of ground and likewise the western portion of appellant's farm. A branch or ravine runs through the piece of land sought to be taken, practically the full distance from the southern to the northern boundary, leaving about one-third of the tract on the west side of the branch. This land is within about five blocks of the business section of the city of Winchester. Appellant's farm is improved by a residence, barns, and outbuildings located about 700 feet south of the public highway and 400 feet east of the east line of the tract sought to be taken.

Appellant filed a motion to dismiss the petition on the grounds: First, that it does not show that the city council of Winchester authorized, by resolution or otherwise, the commencement of this suit or proceeding; and, second, that it failed to show that the city council determined the necessity of acquiring the land described in the petition for cemetery purposes. This motion was overruled, and a jury was impaneled to try the issues as to the value of the property taken. At the close of the petitioner's evidence, the motion to dismiss the petition was renewed on the grounds first stated, and on the additional ground that there was a variance in the description of the land sought to be taken as shown in the petition and as appearing in the evidence. Further, that petitioner made no proof of damages to land not taken; also, that it failed to prove an attempt to agree with appellant on the matter of compensation before filing the petition. This motion was likewise overruled. Appellantthereupon introduced testimony concerning the value of land taken and damages to land not taken. In the course of presenting appellant's case, his counsel requested the court to determine the admissibility of evidence on the question of damages to land not taken by reason of the location of the cemetery near the dwelling house. This mater was argued before the court in the absence of the jury, and the court held such evidence not admissible. At the close of the evidence the jury viewed the land, and, after being instructed, returned a verdict for $2,314 for land taken and $700 damages to land not taken.

Appellant seeks reversal of the judgment entered on the verdict on four grounds; First, that the amount allowed as compensation for land taken and as damages to land not taken is inadequate; second, the court erred in refusing to dismiss the petition for the reasons assigned in appellant's motion; third, the court erred in refusing to permit appellant to prove that the fair cash market value of his land was depreciated by reason of locating a cemetery within 400 feet of his dwelling house; fourth, errors in the instructions.

Concerning the first point, appellant urges that by far the greater weight of the evidence showed that the value of the land taken was greatly in excess of $200 per acre, the amount awarded by the jury. A review of the evidence shows that some of petitioner's witnesses placed the value of the land as low as $150 per acre at the time of the filing of the petition, which was on June 27, 1923, but that the majority of them placed the value of the land at $200 per acre, the amount awarded by the jury. The petitioner examined nine witnesses on the question of the value of the land taken. Appellant testified that his business is raising and feeding cattle and hogs for the market; that there is an ever-living spring on the tract sought to be taken which is of great value to him in his business of feeding livestock, and that he would be put to a great expense in making additional fences and in providing water, caused by the loss of the use of this spring, if it should be diverted. His witnesses placed the value of the land between $250 and $500 per acre, and the damages to land not taken was variously estimated from $5 to $15 per acre. Appellant offered fourteen witnesses on the value of the land taken and damage to the land not taken. Petitioner offered in rebuttal a number of witnesses who testified that the damage to land not taken was very slight, if any. Practically all of appellant's witnesses included in their consideration of the value of the land taken and damages to that not taken the existence of an everliving spring. The existence of this spring was controverted by the petitioner. It called four witnesses who testified, in effect, that there was no such spring, although there was a branch of water there. Three witnesses on the part of appellant testified to the existence of the spring.

The rule is that this court will not interfere with the finding of a jury on the question of damages in a case of this character unless that finding is clearly and palpably against the weight of the evidence. The jury had the benefit of seeing the witnesses and hearing them testify, and the further benefit of a personal view of the premises in determining the compensation to be awarded, and where their verdict is within the scope of the testimony it will not be disturbed unless clearly against the weight of the evidence. Metropolitan West Side Elevated R. Co. v. Johnson, 159 Ill. 434, 42 N. E. 871;Hercules Iron Works v. Elgin, Joliet & Eastern Ry. Co., 141 Ill. 491, 30 N. E. 1050;Atchison, Topeka & Santa Fé R. Co. v. Schneider, 127 Ill. 144, 20 N. E. 41,2 L. R. A. 422;First Nat. Bank v. Mansfield, 48 Ill. 494.

There may also be considered in this connection appellant's third point; that is, that he should have been permitted, in making proof of damages to land not taken, to introduce evidence of the damage arising out of the proximity of a cemetery to his residence. He contends that the location of a cemetery near to his farm residence contains, in itself, an element of damage to the land not taken which should enter into the consideration of the compensation to be allowed him for such damages, and bases his contention on section 13 of article 2 of the Constitution, providing that ‘private property shall not be taken or damaged for public use without just compensation.’ The Constitution of 1848 provided that private property should not be taken nor applied to public use without compensation being made to the owner, and under that constitutional provision it was held in Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392, where the city had constructed the grade of one of its streets in such a manner as to flood the plaintiff's premises in times of rain, that although there was no actual appropriation of the plaintiff's premises by the defendant, yet the grading of the street caused a direct physical injury to his property and was within the relief provided by the Constitution. The same was held in Gillham v. Madison County R. Co., 49 Ill. 484, 95 Am. Dec. 627;City of Aurora v. Gillett, 56 Ill. 132;City of Jacksonville v. Lambert, 62 Ill. 519; and Toledo, Wabash & Western Ry. Co. v. Morrison, 71 Ill. 616. By these cases and others holding the rule, the doctrine became settled in this court that under the Constitution of 1848 actual physical injury to private property by reason of the erection, construction, or operation of a public improvement, whereby the appropriate use and enjoyment of such property was materially interrupted or its value substantially impaired, was regarded as the taking of such private property within the meaning of the Constitution, to the extent of the damages thereby occasioned. By this construction, actual physical invasion of the property affected became the test. There were, however, numerous injuries and damages arising, not through actual physical injury to the property but to the use and enjoyment of it, which were not included within the scope of the Constitution of 1848. It was evidently the intention of the framers of the Constitution of 1870 to give greater security to private rights by affording relief in such cases of hardship by addingto the constitutional provision the words ‘or damaged,’ so that it now reads, ‘private property shall not be taken or damaged for public use without just compensation.’

The question of the significance of the words ‘or damaged’ was raised and fully discussed in Rigney v. City of Chicago, 102 Ill. 64, where it was held that the purpose of the use of these words was to change the organic law of the state with reference to compensation for injury to private property and to declare a new rule, from which might spring new rights which did not exist under the Constitution of 1848; that under the present Constitution it is sufficient if there is a direct physical obstruction of or injury to the right of user or enjoyment by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law would, in the absence of any constitutional or statutory provision, give a right of action. ‘Property’ is there defined as:

‘That dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others.’

It was there held that the Constitution...