Elgin, Joliet & E.R. Co. v. Fletcher

• Decision Date: 16 May 1889
• Citation: 21 N.E. 577,128 Ill. 619
• Court: Illinois Supreme Court
• Parties: ELGIN, JOLIET & E. R. CO. v. FLETCHER et al.

128 Ill. 619

21 N.E. 577

ELGIN, JOLIET & E. R. CO.

v.FLETCHER et al.¹

Supreme Court of Illinois.

May 16, 1889.

Appeal from county court, Du Page county; CHARLES A. BISHOP, Judge.

Petition by the Elgin, Joliet & Eastern Railroad Company for condemnation of a right of way through the farm of James M. Fletcher and other property. Petitioner appeals.Noah E. Gary, for appellant.

Botsford & Wayne, for appellees.

SCHOLFIELD, J.

This is a proceeding, under the eminent domain act, to condemn a right of way for appellant's road, and to assess damages occasioned to land not taken. Appellee owns a farm of about 314 acres, though which the line of appellant's road runs, taking for right of way about 9.21 acres, and dividing the farm so that there are about 184 acres on the east side of the road, and 120 acres on its west side. There is a serious conflict in the evidence on the question of damages to the land not taken. The jury in the verdict assessed the value of the land taken, and damages to land not taken, at the aggregate sum of $3,700; and the court gave judgment upon this verdict. Wallace F. McChesney, upon his examination as a witness, testified that he thought the land taken was worth $70 per acre, and that the damages to the land not taken were $1,000; and he then said: ‘I have added $500 because the right of way may be unfenced for six months. That is included.’ Thereupon the attorney for appellant addressed the court as follows: ‘The chief engineer of the petitioner company has just arrived, and I wish to state in open court, by authority of the engineer, and in his presence, and as counsel for the petitioner, that it hereby agrees that it will on or before May 1, 1888, inclose its right of way over respondents' land in question with suitable and statutory fences, and thereafter maintain the same; and that it will, in building its road, construct and thereafter maintain a suitable and proper underground crossing, at least twelve feet square, on respondent's land in question, and under petitioner's road-bed.’ The court, at the instance of appellant, instructed the jury, among other things, as follows: ‘The jury are instructed that in this case the petitioner railroad company has, in open court, stipulated that it will on or before the 1st day of May, A. D. 1888, construct and thereafter maintain suitable fences along its right of way over the property of the respondents; and that it will construct and permanently maintain an under-ground crossing, twelve feet square; and that the jury, in considering of their verdict, have the right to assume that the proposal and agreement of said petitioner will be carried out; and the jury, in fixing their verdict, should not take into account any failure of the petitioner to keep and observe its agreement with reference to such fences and under crossing.’ (Given.) One of the instructions given at the instance of appellees is as follows: ‘The jury are instructed that the railroad company is not bound by law to fence any portion of its railroad until six months after such part of its line is open for use; and, in determining in this case whether the defendants sustained damages, and in fixing the amount thereof, the jury may consider whatever damages they may believe from the evidence will be caused to the defendants by reason of leaving the railroad tracks open and without fences for the said period of six months after it is open for use, unless the jury further believe the petitioner railroad company has in open court stipulated that it will on or before the 1st day of May, A. D. 1888, construct and thereafter maintain suitable fences along its right of way on the property of respondents.’ (Given.) Appellant asked, but the court refused to give, an instruction reciting the statutory duty of the appellant to make fences within six months after the time that its line is open for use, and to construct farm crossings, cattle-guards, etc., and concluding thus: ‘* * * And the jury have...