Illinois Cent. R. Co. v. Roskemmer

• Decision Date: 16 June 1914
• Docket Number: No. 9401.,9401.
• Citation: 105 N.E. 695,264 Ill. 103
• Parties: ILLINOIS CENT. R. CO. v. ROSKEMMER et al.
• Court: Illinois Supreme Court

264 Ill. 103

105 N.E. 695

ILLINOIS CENT. R. CO.

v.ROSKEMMER et al.

No. 9401.

Supreme Court of Illinois.

June 16, 1914.

Appeal from Massac County Court; Wm. F. Smith, Judge.

Condemnation by the Illinois Central Railroad Company against F. H. Roskemmer and others. From the judgment, the railroad company appeals. Reversed and remanded.

Courtney, Helm & Helm, of Metropolis (W. W. Barr, of Carbondale, of counsel), for appellant.

H. A. Evans and Fred Smith, both of Metropolis, for appellees.

CARTER, J.

This was a condemnation proceeding brought in the county court of Massac county. The jury awarded appellees certain damages for land taken for right of way for the said railroad, and other damages for adjoining land not taken. From the judgment entered on the verdict this appeal was taken.

The petition for condemnation herein set forth that the Illinois Central Railroad Company had in contemplation the building of a switch or spur from its main line, running about two miles, to connect with a part of the main line of the Chicago, Burlington & Quincy Railroad system, for the purpose, among other things, of enabling appellant to make connection with a proposed bridge across the Ohio river. For convenience the term ‘appellee’ will be used to designate F. H. Roskemmer only. He is the owner of a 22-acre tract of land near the city of Metropolis, in said county, across which this switch has been surveyed, running southwesterly in a diagonal direction, and taking out 3.2 acres, leaving a portion of the tract on each side of the proposed right of way. The petition for condemnation only described the land taken in this tract. Appellee, by cross-petition, alleged that he owned a 40-acre tract lying west of the 22 acres, an undivided one-fourth interest in the 20-acre tract lying west of the 40-acre tract, and an interest in a 146-acre tract which lay to the north of the other land. No part of these three tracts was proposed to be taken in the condemnation proceeding. The land is farm land of the general character of farm land in the vicinity. The locations of the various tracts of land and the proposed line of railroad, and of a gravel wagon road to which much of the evidence refers, as well as the amount of damages allowed, are shown approximately by the following map:

Image 1 (5.19" X 3.77") Available for Offline Print

The jury awarded appellee $500 (or $156.25 per acre) for the 3.2 acres taken; $840 for that portion of the 22-acre tract not taken (or $44.68 an acre); $1,400 damages to the 40-acre tract lying immediately west of the 22-acre tract (or at the rate of $35 per acre); and $100 for appellee's interest in the 20-acre tract lying immediately west of the 40-acre tract (or at the rate of $20 an acre on the basis of ownership of the entire tract). No damages were allowed for appellee's interest in the 146-acre tract of land. The plat shows that the railroad ran across the southeast corner of the 146-acre tract, and the railroad company purchased the right of way across this corner from appellee's mother; she having, under the will of her husband, a life interest in that tract, with a power of selling, at her discretion, the real and personal property of the estate and investing the money for her own benefit and the benefit of her two children, and out of the proceeds to provide for her support and the care and education of the children.

[1] Appellant's first contention is that the trial court committed error in allowing evidence to be presented to the jury as to the ownership of the various tracts of land. In condemnation cases the jury is impaneled solely for the purpose of ascertaining the just compensation to the owner of the property sought to be taken or damaged. No issue as to the ownership should be presented to the jury. The question of title, if any, is preliminary to the question of damages, and ordinarily should be determined before the jury is impaneled. Chicago & Milwaukee Electric Railroad Co. v. Diver, 213 Ill. 26, 72 N. E. 758;Metropolitan Elevated Railway Co. v. Eschner, 232 Ill. 210, 83 N. E. 809;Chicago & Northwestern Railway Co. v. Miller, 233 Ill. 508, 84 N. E. 683. It may be impossible to have a final adjudication before the trial as to the various titles involved. Chicago & Northwestern Railway Co. v. Miller, 251 Ill. 58, 95 N. E. 1027. That, however, is not the case here. The question of title should have been presented to the court and passed upon before the selection of a jury. We are not prepared to say, however, that the error thus committed was injurious to appellant. If this were the only error in the record, we should not feel disposed to reverse the cause.

[2] Appellant further contends that the damages allowed are greatly in excess of the value of the property, as shown by the evidence. The testimony introduced by appellee was to the effect that the land taken was worth from $100 to $250 per acre; most of them placing it between $150 and $200. The jury found the value of the land $156.25 per acre. The same witnesses testified as to the damages to the land not taken. Appellant also introduced three witnesses whose testimony as to the damages to...