Hayes v. the Ottawa

• Decision Date: 30 September 1870
• Citation: 1870 WL 6344,54 Ill. 373
• Court: Illinois Supreme Court
• Parties: SAMUEL J. HAYESv.THE OTTAWA, OSWEGO & FOX RIVER VALLEY R. R. CO.

54 Ill. 373

1870 WL 6344 (Ill.)

SAMUEL J. HAYES

v.THE OTTAWA, OSWEGO & FOX RIVER VALLEY R. R. CO.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. E. S. LELAND, Judge, presiding.

The opinion states the case.

Messrs. MAYO & WIDMER, for the appellant, on the subject of rendering compensation for land condemned as a right of way for a railroad, in benefits resulting from the construction and use of the road, cited James River & Kanawha Canal Co. v. Turner, 9 Leigh, 334-9; Winona & St. Peters Railroad Co. v. Waldron et al. 11 Minn. 511; State v. Miller, 3 Zabr. 383; Petition Mt. Washington Railway Co. 35 N. H. 147; Pacific Railrosad Co. v. Chrystal, 25 Mo. 546; Robbins v. Milwaukee & H. Railroad Co. 6 Wis. 636; Woodfolk v. Nashville & Chattanooga Railroad Co. 2 Swan, 422; Henry v. Dubuque & Pacific Railroad Co. 2 Iowa, 288; Horstein v. Atlantic & Great Western Railroad Co.51 Penn. St. 90; Meacham v. Fitchburg Railroad Co. 4 Cush. 291; Upton v. South Reading Branch Railroad Co. 8. Cush. 600; Isom v. Mississippi Central Railroad Co. 36 Miss. 300; State of Illinois v. Evans, 2 Scam. 208.

Mr. WASHINGTON BUSHNELL, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a proceeding to condemn land of the appellant for the way of the appellees' railroad, under the act of June 22, 1852.

An appeal was taken from the assessment made by the three commissioners, to the circuit court of LaSalle county.

On the trial, there was read in evidence to the jury, on the part of the plaintiffs, an instrument in writing, signed by the president, secretary and treasurer of the company, as follows: “ The Ottawa, Oswego & Fox River Valley Railroad Co. v. Samuel J. Hayes. In the above entitled cause, now pending in the circuit court of LaSalle county, and being tried by a jury empanneled for that purpose by the said court, it is hereby expressly stipulated by the said railroad company, that in the construction of said railroad from Streator to Ottawa, there shall be constructed and built as follows:

1. A passenger and freight depot at South Ottawa. 2. A passenger and freight depot in the town of Farm Ridge, to be located on the line of said railroad, as near the centre of said town (north and south) as shall be found practicable upon examination. 3. Suitable farm crossings shall be made and maintained, with substantial bars, gates or cattle guards, at such points as shall be found necessary for the accommodation of the lands through which said railroad passes, and a good four board fence shall be built and maintained on each side of said railroad track.

Ottawa, June 23, 1870.”

And it was in evidence that defendant's land lay in the town of Farm Ridge, the north line of which was one mile south of the northern boundary of said town, and that said town was six miles in extent, north and south.

The court, then, against the objection of the defendant, admitted in evidence the opinions of witnesses in regard to the benefit of the road to defendant's land, on the supposition that the depot should be located within two miles of it, which is complained of as erroneous.

It is claimed that evidence in regard to the location of the depot was not relevant, because it was not determined upon at the time of the taking of the defendant's land, in August, 1869, and that only the state of facts then existing could be considered. That is the time in reference to which the value of the land taken is to be estimated.

But when damages and benefits come to be estimated, by reason of the construction and use of the road, the manner in which the road is to be constructed and used is important; the location of a depot pertains to its construction and use, and if that particular, in the manner of the construction and use of the road, has not been determined upon until the trial, we think it may then be considered upon the question of benefits and damages.

It is said that opinions of the witnesses should not have been received. The opinions of witnesses are admissible as to the value of property, and why not as to what affects its value? In Ottawa Gas Light & Coke Co. v. Graham, 35 Ill. 346, it was held that the opinions of witnesses were properly received as to the amount of damages done to premises on account of gas works, and we think they are equally receivable as to the benefit which would probably result to land by the location of a railroad depot within a certain distance of it.

It is again urged, that the testimony should not have been inquired for and elicited, on the hypothesis that the depot would be located within two miles of defendant's land,...