Illinois Power & Light Corp. v. Talbott

• Citation: 321 Ill. 538,152 N.E. 486
• Decision Date: 16 June 1926
• Docket Number: No. 16973.,16973.
• Court: Supreme Court of Illinois
• Parties: ILLINOIS POWER & LIGHT CORPORATION v. TALBOTT et al.

321 Ill. 538

152 N.E. 486

ILLINOIS POWER & LIGHT CORPORATION

v.TALBOTT et al.

No. 16973.

Supreme Court of Illinois.

June 16, 1926.

Condemnation proceeding by the Illinois Power & Light Corporation against Warren Talbott and another, wherein John F. McCulloch filed a cross-petition. From a judgment assessing cross-petitioner's damages, petitioner appeals.

Reversed and remanded.

Appeal from Warren County Court; Clinton M. Huey, Judge.

Burton & Hamilton, of Peoria, and Grier, Safford & Soule and J. W. Clendenin, all of Monmouth, for appellant.

L. H. Hanna and Murphy & Kutzer, all of Monmouth, for appellee.

DUNN, J.

The Illinois Power & Light Corporation on April 2, 1925, presented its petition to the judge of the county court of Warrencounty for the condemnation of sites for two supporting towers and an easement over a strip of land owned by John F. McCulloch three rods wide and 1,112.6 feet long, for the construction, maintenance, operation, and repair of a high-power electric transmission line from the Keokuk dam to Monmouth and Galesburg. At the time fixed for the hearing, McCulloch, the owner of the land, filed a cross-petition, alleging that he was the owner of the southwest quarter of section 27, town 10 north, range 3 west of the Fourth principal meridian, of which the land sought to be taken was a part; that the quarter section had been fenced and managed as one farm; and that the taking of the land and the creation of the easement and construction of the power line as sought by the petition would greatly damage all the quarter section by depreciating its fair cash market value; and praying compensation for the damages so caused. A trial resulted in a verdict finding just compensation for the land taken to be $5.30 and the damages to the land not taken to be $1,000, and a judgment authorizing the petitioners to enter upon the land described in the petition upon payment of the full compensation ascertained by the jury within 60 days. The petitioner has appealed, and the questions involved in the appeal relate only to the amount of the damages to the land not taken.

Before the introduction of any evidence, the jury, on motion of the appellee, was permitted to view the premises. The appellant then introduced the evidence of witnesses showing the location of the strip of land in question, the quantity of land included in it, the quantity of land taken for each tower, the method of construction of the line, including the towers, and the manner and extent of the use to be made of the strip. From the evidence it appears that the three-rod strip sought to be condemned lies wholly in the southeast quarter of the southwest quarter of the section; that its center line crosses the south line of the southwest quarter 1,007.1 feet west of its southeast corner, thence extends north 65 degrees 43 seconds east 1,112.6 feet to a point in the east line of the quarter section 485.8 feet north of the southeast corner of the southwest quarter; and that the triangular part of the southeast quarter of the southwest quarter south of the three-rod strip contains about five acres. The transmission line is to be of wire, supported by steel towers about 650 feet apart, of which there will be two on the appellee's land. The towers are to be constructed of structural steel, with a leg at each of the four corners and diagonal and horizontal steel supports from leg to leg. Each leg is to be anchored 10 or 12 feet deep in the ground to a ball of concrete from 2 to 2 1/2 feet in diameter. At the foundation the area to be occupied by each tower is a trifle less than 1/100 of an acre. The towers taper to the top, which is to be 64 feet above the ground. Each tower carries three cross-arms at a height above the ground of 44, 52, and 60 feet, respectively, with a conductor at each end, made up of six strands of aluminum wire and one of steel wire, to give additional strength to the conductor. The conductors are suspended from insulators, so that at the tower the lowest conductor is 40 feet from the ground. The normal sag of the wires between towers is 15 or 16 feet, and at their lowest point the wires will never be lower than 20 feet above the surface of the ground. Each double circuit of the transmission line carries 66,000 volts of electricity. Should a conductor break or come in contact with anything to ground the current, circuit breakers, automatic oil switches at the Keokuk dam, will immediatelyoperate to cut off the current from the conductor and render it harmless the instant it touches the ground. The strip of ground over which the easement is sought, including the 2/100 of an acre upon which the two towers are to rest, has an area of 1.26 acres. The insulators are of porcelain and are subject to accidental or intentional breakage. The sites of the towers will be in the exclusive possession and under the exclusive control of the appellant, and the remainder of the strip of land will be subject to the appellant's use for the construction, inspection, maintenance, and repair of the line. Subject to such use, the land included in the strip, except where the towers are to be, will be available for farming purposes, and the appellee will have the right to use and control it as completely as he ever had, except as his right may be interfered with by the exercise of the appellant's right.

The testimony of the four witnesses introduced by the appellant in chief, who testified on the question of value and damages, tended to show that the land was worth $200 an acre and that the depreciation in value of the three-rod strip was from $30.76 to $100, each of those amounts being testified to by one witness, $50 an acre by another and $75 or $80 by the fourth. The appellant introduced no evidence in chief on the question of damages to land outside the three-rod strip described in its petition. The appellee then introduced six witnesses who testified that the land was worth $275 an acre; that the three-rod strip was damaged in amounts varying from $125 to its full value, and the rest of the land outside the strip was damaged from $6 to $25 an acre, one saying $6, one $10, two $15 and two $25. The appellant introduced seven witnesses in rebuttal, one of whom estimated the damages to the land outside the three-rod strip at $2 an acre, one estimated the total damage, including the strip, except the part occupied by the towers, at $200, one at $2 an acre and the other three at $300 to $350.

The appellant contends that none of the appellee's witnesses who testified as to the damages to land not taken was qualified to testify on that question because none of them had any experience or observation on which to base a correct judgment. The witnesses, who were all farmers owning land in Warren county and acquainted with the value of land, knew the appellee's farm and the location and character of the transmission line, but none of them had ever bought, sold, or rented land having such a line crossing it or knew of any land having such a line crossing it being bought, sold, or rented, or had had any experience with any such land. The question of the market value of land is not, however, a question of art or science, which must be shown by the testimony of experts. We have held that it is a question of fact to be proved as any other fact, and any person who is acquainted with the land is a competent witness as to its value. White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543;Keithsburg & Eastern Railroad Co. v. Henry, 79 Ill. 290;Johnson v. Freeport & Mississippi River Railway Co., 111 Ill. 413. Witnesses having knowledge of the value of lands affected are competent to state their opinions as to the amount of damage or benefit that may result to the lands by reason of works constructed under the power of eminent domain. Illinois Central Railroad Co. v. City of Chicago, 169 Ill. 329, 48 N. E. 492;Chicago, Peoria & St. Louis Railway Co. v. Nix, 137 Ill. 141, 27 N. E. 81;Spear v. Drainage Com'rs, 113 Ill. 632. The jury will not be bound by the opinions, and the opposite party has always the right to test their value by showing the ground on which they are based, by cross-examination. McReynolds v. Burlington & Ohio River Railway Co., 106 Ill. 152. The objection of lack of experience goes not to the competency of the witness but the weight of his testimony. City of Chicago v. Chicago City Railway Co., 309 Ill. 448, 141 N. E. 141.

After the witnesses had testified and been cross-examined as to the basis of their opinions, the appellant moved to exclude their testimony in regard to the depreciation of land not taken outside of the three-rod strip for the reason that such opinions were based upon elements of alleged damage which were too remote and not sufficiently reasonably certain to be the basis for opinions touching the value or depreciation of the land, and the basis of the opinions was of such a character that the alleged elements of damage included in the opinions could not be separated so as to tell how much of the damage included was predicated upon improper elements. The court denied the motion. This was error. Opinions of witnesses based upon supposed elements of damage which were not recognized by law as proper to be considered in condemnation proceedings should have been excluded. Only such opinions as are based on evidence of lawful elements of damage can be of benefit to a jury in the assessment of the amount of damage. City of Kankakee v. Illinois Central Railroad Co., 263 Ill. 589, 105 N. E. 731;City of Kankakee v. Illinois Central Railroad Co., 264 Ill. 69, 105 N. E. 734;Illinois Central Railroad Co. v. Roskemmer, 264 Ill. 103, 105 N. E. 695;Mauvaisterre Drainage District v. Wabash Railway Co., 299 Ill. 299, 132 N. E. 559, 22 A. L. R. 944;City of Chicago v. Chicago City Railway Co., 302 Ill. 57, 134 N. E. 44.

The appellant's contention that there is no sufficient evidence to sustain the judgment for damages to land not taken, and...