Comm'rs of Deland Special Drainage Dist. v. Warner

• Decision Date: 23 April 1932
• Docket Number: No. 21155.,21155.
• Citation: 181 N.E. 304,348 Ill. 376
• Court: Illinois Supreme Court
• Parties: COMMISSIONERS OF DELAND SPECIAL DRAINAGE DIST. v. WARNER et al.

348 Ill. 376

181 N.E. 304

COMMISSIONERS OF DELAND SPECIAL DRAINAGE DIST.

v.WARNER et al.

No. 21155.

Supreme Court of Illinois.

April 23, 1932.

Commissioner's Opinion.

Proceedings by the Commissioners of Deland Special Drainage District against Clifton M. Warner and others, to condemn a strip of land for drainage purposes. From a judgment for damages for land taken, defendants appeal.

Affirmed.

Appeal from Piatt County Court; Thomas J. Kastel, Judge.

F. K. Lemon, of Clinton (L. O. Williams, of Clinton, of counsel), for appellants.

Herrick & Herrick, of Clinton, for appellees.

PARTLOW, C.

Appellees, the commissioners of Deland special drainage district of Piatt county, Ill., filed their petition in the county court of Piatt county under the Farm Drainage Act against appellants to condemn a strip of land through the farms of appellants for drainage purposes. Appellants filed an answer, also a cross-petition, in which they denied the right of appellees to condemn the lands and alleged certain facts relative to the value of the land taken and the damage to land not taken. There was a trial by jury, they inspected the land and returned a verdict for appellants for $3,724.40 for land taken, and found that they were not entitled to any damages for land not taken. Judgment was entered upon the verdict and an appeal was prosecuted to this court.

Appellants insist that the verdict and judgment are inadequate to compensate them for the damages to their property; that the amount awarded as damages cannot be sustained under any reasonable construction that can be placed upon the evidence; that the court erred in refusing to admit proper evidence as to the cost of constructing necessary fences along the line of the ditch; and that there was error in the giving and refusing of instructions.

Appellants own 640 acres of land in one section. It is divided into two farms. The east one is the east half of the section and the west one is the west half of the section. There are farm buildings on each of the farms. The buildings on the east half are in the southeast corner of the section. The buildings on the west half are near the center of the west side of the section. The main ditch is 35 feet wide, 8 or 9 feet deep, about 6,634 feet long and contains 5.36 acres of land. A strip 50 feet wide on each side of the main ditch is being condemned, on which the dirt from the ditch is to be piled. These two strips contain 14.14 acres. The ditch enters the section at the northeast corner and extends parallel with and adjacent to the north section line for almost a quarter of a mile. Just before it reaches the northwest corner of this 40-acre piece it turns in a southwesterly direction and extends almost in a straight line diagonally through the northwest quarter of the northeast quarter and through the southeast quarter of the northwest quarter and passes out of the west boundary of the section near the center of the northwest quarter of the southwest quarter. It extends diagonally through two full quarter-quarter sections, cuts a very small corner off of three other quarter-quarter sections, and extends through the center of another quarter-quarter section. With the exception of about 200 feet the ditch follows the line of a small water course about 15 feet wide, which now extends through the land. A part of this land is wet and the purpose of the ditch is to drain the wet land. Appellants insist that it will be necessary in order to farm this land properly after the ditch is constructed, to build and maintain five bridges across the ditch and to construct fences along each side of the ditch, and that they are entitled to the value of the land taken, the cost of constructing the bridges and fences, and the damage to the land not taken.

One witness placed the value of the 5.36 acres at $120 per acre, one placed it at $130 per acre, three placed it at $140 per acre, two placed it at $150 per acre, one placed it at from $150 to $175 per acre, and one placed it at $175 per acre. There was only one witness who testified to any damage to lands not taken, and there is no evidence as to any benefits which may be set off against any damage to lands not taken. One witness placed the damage to the farms at $3 per acre, but he testified that there would be no damage to the remainder of the farms except for the land taken for the main ditch and the two 50-foot strips provided sufficient bridges were constructed. One witness testified that the land was worth $140 per acre at the time the petition was filed, and that after the ditch is dug it will be worth $150 per acre provided two bridges are constructed. Six witnesses cost of constructing these bridges, the evidence varying from $650 to $1,500 per bridge, depending upon the type of bridge constructed. The preponderance of the evidence is that a bridge sufficient for all practical purposes can be built for $650. E. E. Churchill, who has lived on one of these farms since 1882 and who has farmed it since 1895 and who is probably better able than any other witness to know the conditions on these farms, testified that only two bridges would be necessary and they could be built for $650 each.

This court has held that in cases of this kind, where the evidence is conflicting, where the verdict is within the range of the testimony, and where the jury viewed the premises, this court will not interfere with the finding of the jury as to the amount of damages unless there is something in the record showing that they were influenced by passion or prejudice or that there have been incorrect rulings which might mislead the jury. Illinois Light & Power Co. v. Bedard, 343 Ill. 618, 175 N. E. 851;City of Chicago v. McGowan, 324 Ill. 164, 155 N. E. 37;Forest Preserve District v. Barchard, 293 Ill. 556, 127 N. E. 878. The 5.36 acres, valued at $150 per acre, are worth $804. The 14.14 acres, valued at $60 per acre, are worth $848.40. Two bridges at $650 each amount to $1,300. These three items make a total of $2,952.40. If a third bridge is constructed the total would be $3,602.40, which is within $122 of the award made by the jury. The verdict, as far as the land taken and the construction of bridges are concerned, is within the scope of the evidence, and the judgment should not be disturbed upon the ground that the amount is inadequate.

Appellants insist that proper evidence was excluded as to fencing the ditch on both sides and the cost thereof, and that improper instructions were given on that question. In 1927 paragraph 197 of chapter 42 (Cahill's Rev. St. 1931, p. 1170, c. 42, par. 197) was amended by providing that the cost of building or replacing any farm or highway bridges across the open drains of districts organized subsequent to June 29, 1919, should be taken into consideration in determining the amount of damages to be...