Herrin & S.R. Co. v. Nolte

• Decision Date: 16 February 1910
• Citation: 90 N.E. 1097,243 Ill. 594
• Court: Illinois Supreme Court
• Parties: HERRIN & S. R. CO. v. NOLTE et al.

243 Ill. 594

90 N.E. 1097

HERRIN & S. R. CO.

v.NOLTE et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Appeal from Williamson County Court; W. F. Slater, Judge.

Condemnation proceedings for a right of way by the Herrin & Southern Railroad Company against Henry Nolte and others. From a judgment on the verdict fixing the amount of damages, the petitioner appeals. Affirmed.

Neely, Gallimore, Cook & Potter, for appellant.

Hartwell & White, for appellees.

CARTWRIGHT, J.

Appellant located its railroad across two tracts of land constituting part of an improved farm owned by Henry Nolte, one of the appellees, in Williamson county, entering the first tract of 33 1/3 acres on the north side and running southeasterly across it, taking 1.26 acres of that tract, and, after crossing another tract, again entering the farm on the west side of a 40-acre tract, and running in the same direction across it, taking all of the tract west of a line 50 feet east of and parallel to the center line of the railroad, containing 1.60 acres. A petition was filed in the county court of said county to ascertain the compensation to be paid for the land so taken, and Henry Nolte and his tenants were made defendants. Henry Nolte, the owner of the farm, filed his cross-petition, claiming damages to a large part of the farm by reason of the construction and operation of the railroad. The questions of compensation to be paid for the land taken and damages to land not taken were submitted to a jury, and the verdict fixed the amounts at $165 for the land taken and $840 for damages to land not taken. The court gave judgment on the verdict, and an appeal was prosecuted from that judgment.

The first complaint is that the court gave instruction No. 4 at the request of the defendant Henry Nolte. The jury were advised by the instructions that the measure of damages to land not taken was the depreciation in market value by the building and operation of the road, and this instruction authorized them, in estimating such damages, to consider the depreciation, if there was any, which would result to the land not taken by reason of the same remaining open, exposed, and unfenced for the space of six months. The argument against the instruction is that the statute requiring fences is designed to protect domestic animals and prevent their being killed or injured; that fences would be a protection to the general public as much as to the landowner; and that, inasmuch as domestic animals are forbidden by law to run at large in this state, the danger from killing stock was not proper to be considered. In a condemnation suit, damages resulting from injuries to stock for which the railroad company would be liable in another action, and possible dangers of stock being killed, where the market value of the land is not affected thereby, cannot be considered. But there was nothing in this instruction referring to killing stock or concerning the recovery of damages therefor. It is proper to take into consideration all those things which affect the market value of the land, and the fact that the premises will be kept open for six months unfenced is proper to be considered. The inconvenience of having a cultivated field or pasture land thrown open during the construction of a railway through the same, and for six months afterward, may be a material element of damage. Whatever the purpose of the statute may be, the fact that one side of a field will be unfenced for six months might materially interfere with its use and a person buying might pay less for it on that account. The court did not err in giving the instruction. St. Louis, Jerseyville & Springfield Railroad Co. v. Kirby, 104 Ill. 345;Centralia & Chester Railroad Co. v. Rixman, 121 Ill. 214, 12 N. E. 685;Centralia & Chester Railroad Co. v. Brake, 125 Ill. 393, 17 N. E. 820;Chicago & Milwaukee Electric Railroad Co. v. Diver, 213 Ill. 26, 72 N. E. 758.

The next complaint is that the court refused instruction No. 4 tendered by the petitioner. This instruction stated that, if the jury believed they had arrived at a more accurate judgment and determination as to the value of the premises sought to be taken and the amount of damages by their personal examination of the premises than was shown by the evidence in court, they might rightly fix the value of the land and...