Conness v. Indiana, I.&I.R. Co.

Decision Date18 December 1901
Citation193 Ill. 464,62 N.E. 221
CourtIllinois Supreme Court
PartiesCONNESS v. INDIANA, I. & I. R. CO.

OPINION TEXT STARTS HERE

Appeal from Lasalle county court, H. W. Johnson, Judge.

Petition by the Indiana, Illinois & Iowa Railroad Company against John W. Conness for the assessment of damages for land taken for a right of way. From a judgment assessing damages, defendant appeals. Affirmed.Trainor & Browne, for appellant.

Cary & Walker and Reeves & Boys, for appellee.

This is an appeal from the county court of Lasalle county in a condemnation proceeding for the right of way of the appellee. The appellant is the owner of the S. W. 1/4 of section 24, township 31 N., range 2 E. of the third P. M., and is also the owner of the remainder, after the expiration of the life estate of his mother, Mary Conness, of the undivided 1/2 of the N. W. 1/4 of the same section. A number of years prior to this proceeding appellant's father owned the N. W. 1/4, and by deed conveyed it for life to his wife, Mary Conness, with remainder to the appellant, John, and his brother Benjamin. When this suit was begun and prosecuted all the three last named parties were living; the mother occupying the land, and the two sons living there also. The strip of land sought to be condemned is something less than 100 feet in width, extending the entire width of the S. W. 1/4 of said section 24 from east to west, and the north side or boundary of said strip is common to the north boundary or quarter section line of said S. W. 1/4. The strip contains, practically, 5.001 acres of land. The life tenant, the mother, is 76 years of age. The appellant claims that he and his brother, Benjamin, have a verbal lease of the life estate of their mother of the N. W. 1/4, and had for a number of years prior to the beginning of this procedure been farming the N. W. 1/4 and S. W. 1/4 as one farm, which they term a ‘stock farm.’ All the farm buildings, which are numerous and substantial, are situated on the N. W. 1/4. The only water supply and appliances for use thereof consist of two wells, one for house purposes, and the other about the farm lots; the latter being equipped with pumps, tanks, and conveyance pipes. The natural dip of the land is to the south, and there are several lines of tile drainage starting from the N. W. 1/4, and extending south, across the quarter section line, through the S. W. 1/4 to the natural outlet. By the taking of the right of way in the manner proposed, appellant contends, the farm will be divided into two separate farms; one comprising the N. W. 1/4, and the other the S. W. 1/4, less that portion taken by appellee. When the application was filed for this proceeding, appellant filed a cross petition setting up his rights and interests in the lands not taken, and claiming damages on account of such lands. This proceeding is against John W. Conness only, the mother and his brother Benjamin not being parties. The hearing was in May, 1900; and the jury, after hearing the evidence and viewing the land, returned a report and verdict fixing the compensation for the land actually taken (5.001 acres) at $625, special damages to remainder of the S. W. 1/4 not taken at $465, and special damages to the interests of appellant in the N. W. 1/4 at $53.33 1/3. Upon this verdict, after overruling motions for a new trial and in arrest of judgment, the court entered judgment, from which this appeal is prosecuted.

Eight errors are assigned of record and insisted upon: First. That the court erred in excluding the evidence of a verbal lease of the life estate of Mary Conness in said N. W. 1/4 from her to appellant and his brother, and, in connection with that, evidence of damages to appellant by separating his two interests in the two quarters, thereby rendering the farming and carrying on of said two quarters in the manner theretofore done impossible. Second. In not permitting appellant to introduce evidence showing damages to his interest in the N. W. 1/4 by the separation thereof from the S. W. 1/4, owned by him exclusively, which he insists, so far as he is concerned, constituted one farm. Third. In requiring that the special damages should be considered and estimated, as to the separate quarter sections, without regard to the interests of the other, or their contiguity. Fourth. In refusing to permit appellant to introduce evidence of the verbal lease of the life estate of Mary Conness to appellant and his brother. This error is included in the first assignment. Fifth. In giving instructions numbered 2, 3, 7, 10, 12, 13, 14, 15, 16, 17, and 18 for appellee. Sixth. In refusing to give instructions 29 and 30 for appellant. Seventh. In instructing the jury orally, after the reading of all the written instructions, in the following language, to wit: ‘As to the first form of verdict,-the value of the land,-you must, as a matter of course, give something for that. As to the other two forms, if you do give anything for other damages, then you will fill out and use said forms.’ Eighth. The verdict is contrary to the weight of the evidence.

RICKS, J. (after stating the facts).

This case has been before this court on appeal from a former hearing, in which the present appellee was appellant, and is reported in 184 Ill. 178, 56 N. E. 402. In the opinion of the court, and with a view to a further hearing of the case, we said (page 180, 184 Ill., and pages 402, 403, 56 N. E.): ‘The estate in remainder in the northwest quarter was a vested interest, the value of which could be determined; and, if that estate was damaged, we see no good reason why the damages might not be assessed in this proceeding. * * * The lands were already separated as to interest and estate, and the only evidence admissible as to the northwest quarter was concerningdefendant's estate therein. If his interest in the northwest quarter was in any way affected by being separated from his other lands, it required careful discrimination and the limiting of the evidence to his interest, and in this respect the court erred. It appeared that the defendant and his mother and brother lived together as a family on the place, and he testified that the lease from his mother was oral to himself and his brother. Counsel on both sides say that it was subject to the statute of frauds, and voidable. At any rate, he furnished no basis whatever for the assessment of damages to his share of the leasehold interest, and evidence including it should not have been admitted. Whether the leasing was for a share of the crops, or what the rental was, or the value of the leasehold interest, did not appear in any manner.’

The first, second, third, fourth, and fifth errors all relate to the same question, and may as well be considered together. While appellant was upon the witness stand, and without asking him a single question as to the character of his lease, or the length of term he had, or as to the rent,-whether cash or part of the crops,-his counsel made this offer: ‘Thereupon the defendant, by his attorney, offered to prove by the defendant, John Conness, that this railroad right of way, as laid out, divides up and separates the northwest and southwest quarters of section 24 in township 31, referred to in the testimony in this case; that said two quarters at the time of the beginning of this suit were farmed by the defendant, John Conness; that John Conness and his brother, Benjamin Conness, had, and still have, and for a long time before the commencement of this suit had, a verbal lease of the life interest of the mother, Mary Conness, in said northwest quarter, from her, and were occupying and farming said quarter by virtue of and under said lease; that the putting through of said road and right of way will damage the defendant by separating his two interests in the two quarters (the southwest and the northwest quarters of section 24), thereby rendering the farming and carrying on of said two quarters as one farm impossible in the way that they have been farmed prior to the putting through of said road and right of way,’-to which offer counsel for appellee objected, and the objection was sustained and appellant excepted. Again, without asking a question, the defendant's counsel made the following offer: ‘The defendant, by his attorney, then offered to prove by said witness that the putting through of said road and right of way will damage the individual interest of said John Conness in said northwest quarter by separating it from the said southwest quarter; that before the commencement of this suit said interest was not separated from said southwest quarter, but was joined to it and farmed in connection with it,’-to which offer appellee's counsel objected, and the objection was sustained. It will be observed that these offers of evidence were in very general terms. Witness was allowed to testify where he lived, and how he had been farming these lands. These rejected offers only added the proposed evidence as to the verbal lease, and supposed damages accruing to him by reason of separating the two quarters. When the case was before us on the former trial, we practically held that the verbal lease of the N. W. 1/4 for the life of the mother was a voidable lease, and for that reason of such uncertain duration that damages for interfering with the enjoyment of it, as related to the S. W. 1/4 would be too uncertain, and would enter the field of speculative or imaginary damages, which are not allowed in this class of cases; and we indicated, as clearly as we could, that some reasonable basis other than the mere existence of such lease, and the exercise of rights under it, must be presented as the basis for any such claim of damages. It is again insisted that, inasmuch as we have found that this interest of appellant in the N. W. 1/4 was a vested interest, therefore damages must follow. The vested interest that appellant has in that tract is by virtue of the deed of his father, and is to the fee of the land after the...

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