Illinois Power Co. v. Wieland

• Decision Date: 16 February 1927
• Docket Number: No. 17992.,17992.
• Citation: 155 N.E. 272,324 Ill. 411
• Parties: ILLINOIS POWER CO. v. WIELAND et al.
• Court: Illinois Supreme Court

324 Ill. 411

155 N.E. 272

ILLINOIS POWER CO.

v.WIELAND et al.

No. 17992.

Supreme Court of Illinois.

Feb. 16, 1927.

Condemnation proceeding by the Illinois Power Company against Gottlieb Wieland and others. From a judgment assessing damages, plaintiff appeals.

Reversed and remanded.Appeal from Sangamon County Court; Oramet B. Irwin, Judge.

William L. Patton, Walter McC. Allen, and Henry A. Converse, all of Springfield, for appellant.

B. L. Catron and Harlington Wood, both of Springfield, for appellees.

HEARD, J.

Appellant, a public service corporation, having first obtained from the Illinois Commerce Commission a certificate of convenience and necessity for the construction of a rural electric transmission line, filed its petition in the county court of Sangamon county against appellees to acquire by condemnation a right of way for the construction of such line for the conveyance of electric energy for light and power purposes, for local tap service, over portions of the premises of the several appellees heretofore devoted to highway purposes, by placing poles upon a 10-foot strip in the highway in front of the premises of appellees, and running three wires from pole to pole above the surface of the highway, no part of the premises of any appellee to be taken, except the area in the highway occupied by the poles, the wires to run longitudinally with and in the highway and with no encroachment upon or invasion of any land of appellee which lies beyond the limits of the highway. The petition sought exclusive use (subject to the existing highway easement) of the area to be actually occupied by the poles, but expressly averred that petitioner did not seek to acquire exclusive use of any other part of the land in the highway, but only the right to the use of an easement in, upon, and over the balance of the 10-foot strip between the poles for the suspension thereover of its wires, and the necessary travel to and fro for maintenance, repair, and replacement. The several 10-foot strips in the highway were specifically described in the petition, and there were attached to the petition, as exhibits, plats showing the proposed location of the poles as to each tract.

After motions by the several appellees to dismiss the petition had been made and overruled by the court, each appellee filed a cross-petition, claiming damages to land beyond the limits of the highway and not to be taken-Wieland to a tract of 50 acres, Cartwright to a tract of 22 acres, Smith to a tract of 5.31 acres, and Haensel to a tract of 122 acres. A jury trial was had, and verdicts were returned by the jury as follows: Wieland, land taken to be occupied by 2 poles, $0.12; Depreciation of land in highway, $24.88; damage to land outside highway, $75; total, $100. Cartwright, land taken to be occupied by 11 poles, $0.66; depreciation of land in highway, $69.34; damage to land outside highway, $75; total, $145. Smith, land taken to be occupied by two poles, $0.12; depreciation of land in highway, $9.88; damage to land outside highway, $50; total, $60. Haensel, land taken to be occupied by 28 poles, $1.68; depreciation of land in highways, $68.32; damage to land outside highway, $75; total, $145. Motion for a new trial having been overruled, and judgment entered on the verdicts, appellant has appealed to this court.

The lands in question are situated about five miles east of Springfield. The Wieland, Cart-Wright, and Smith tracts have a frontage upon state route 10 of 500 feet, 1,750 feet, and 450 feet respectively. There are two Haensel tracts, one with a frontage on the Clear Lake road of 1,120 feet, and the other a frontage of 3,325 feet on a north and south road. The Cartwright tract of 22 acres is farm land, with two dwelling houses, barn, filling station, automobile repair shop and garage thereon. The Wieland tract is used for farming, and has a house, a wash house, chicken house, corn crib, machine shed, barn, and silo thereon. The Smith tract has a house, garage, and two chicken houses, and is used as a fruit farm. The Haensel tract is ordinary farm land.

Each appellee testified solely in support of his own cross-petition and gave in a lump sum his estimate of the damage which the 10-foot strip and his land outside of the highway would sustain, except that Smith testified that he did not think that his property in the highway would be damaged. The only other witness called by appellees testified that he did not see where the building of the power line in the 10-foot strip out in the highway would interferein any way whatever with a farm within the fence. Appellees did not itemize the elements which entered into their estimates of damages, but each of them gave as elements which they took into consideration, one or more of the following: Unsightliness of the poles, the danger of having to trim trees, that it would require more labor to cut weeds and grass around the poles, and that...