Johnson v. the Freeport

• Decision Date: 17 November 1884
• Citation: 1884 WL 9974,111 Ill. 413
• Parties: ANN E. JOHNSON et al.v.THE FREEPORT AND MISSISSIPPI RIVER RAILWAY COMPANY.
• Court: Illinois Supreme Court

111 Ill. 413

1884 WL 9974 (Ill.)

ANN E. JOHNSON et al.

v.THE FREEPORT AND MISSISSIPPI RIVER RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Jo Daviess county; the Hon. WILLIAM R. ROWLEY, Judge, presiding.

Mr. M. Y. JOHNSON, for the appellants.

Mr. B. C. COOK, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is a proceeding commenced by petition, by the Freeport and Mississippi Railroad Company, to condemn, under the Eminent Domain act, the whole of lots 10, 11 and 12, in block 5, on the east side of the Galena river, in the city of Galena, that remains after taking therefrom a strip of land ten feet in width off the east end thereof, conveyed to the Illinois Central Railroad Company, and after taking therefrom another strip of ground off the west end thereof twenty-two feet wide, on Bouthillier street, and gradually narrowing southwardly to a width of ten feet on the southerly boundary line of said lot 10, conveyed to the city of Galena, the title whereof is conceded to be in fee in Ann Eliza Johnson. The purpose of the condemnation is for depot, station building, right of way for construction and operation of main and sidetrack, spurs, switches, etc.

At the return day of the writ, Ann Eliza Johnson filed her cross-petition in the proceeding, in which, among other things, she alleged that “she is the owner of a strip of ground off the west end of said lots 10, 11 and 12, of twenty-two feet, on Bouthillier street, narrowing southwardly to ten feet in front of lot 10, on Water street, in which the right of user was conveyed to the city of Galena, which strip is not included in the petition for condemnation; that in and by her deed conveying such right of user to the city of Galena, which was dated January 25, 1856, it was stipulated that the conveyance was made on the condition that the grounds so conveyed should be forever kept and used as a public street and wharf for the use of the inhabitants of Galena, and that Water street, in front of said lots, should be kept and maintained at all times forty-five feet wide; that in consequence of the said condition on which said conveyance was executed, she has a vested interest in so much of said Water street as is in front of said lots, paramount to other lot owners abutting on said street; that the petitioner, by the line of its contemplated railroad, will run over and appropriate to itself the exclusive use of said Water street in front of said lots, under and by authority of an ordinance of the city of Galena, which provides that said petitioner shall pay all damages occasioned thereby.” The cross-petition concludes, “by means whereof she will be greatly injured and damaged in other property she is interested in, adjacent and within two hundred feet thereof, by reason of taking said Water street aforesaid, and prays that damages may be assessed under the law, as required by the statute,” etc. On motion of the attorney for the petitioner, this cross-petition was stricken from the files. Afterwards, Ann Eliza Johnson filed a special plea to the petition, and this, on motion of the attorney for the petitioner, was also stricken from the files. When the cause came on to be heard, the attorney for Ann Eliza Johnson challenged the array of jurors, and moved to dismiss the petition; but the challenge was disallowed, and the motion to dismiss was overruled. Her damages were then assessed, by the verdict of the jury, at $2500, whereupon she moved for a new trial, but the court overruled the motion, and entered judgment upon the verdict. Exceptions were taken by Ann Eliza Johnson to the various rulings of the court adverse to the contentions of her attorneys, which were allowed, and she now assigns numerous errors in consequence of such rulings. Such of them as we deem important we shall notice in consecutive order.

First--We think the court erred in striking the cross-petition of Ann Eliza Johnson from the files. The constitution guarantees as well that private property shall not be damaged, as that it shall not be taken for public use, without just compensation, (sec. 13, art. 2, of the constitution,) and this guaranty is repeated in the first section of the Eminent Domain act. The second section of that act likewise makes provision for assessing damages on account of property damaged, as well as on account of property taken for public use. Where some property is damaged and other property is taken for public use at the same time, in many instances it would seem to be almost indispensable to the ends of justice that the questions should be considered together, and hence there ought to be some way by which, if the petitioner neglect to include in his petition all property damaged as well as all property taken, it could be brought before the court. Obviously, the most convenient way to do this is by cross-petition. It is true the statute makes express provision for filing a cross-petition only by a person interested who is not made a defendant; but this, by implication, would seem to recognize the right of a person already made defendant, whose interests are not fully or accurately stated in the petition, to file a cross-petition for that purpose. It surely could never have been intended that a person whose name or interest is not mentioned in the petition, may come in by cross-petition, describe his interest and have his rights adjudicated, and yet a person who is summoned as defendant shall be denied the privilege of being allowed to accurately describe his interest in a cross-petition and have his rights adjudicated. The right to file a cross-petition, by the analogies of the law, would seem to result as an incident from the right to file the petition, and so we have held that a cross-petition is an appropriate mode of bringing before the court, property of the defendant taken or damaged and not described in the petition. Mix v. Lafayette, Bloomington and Mississippi R. R. Co. 67 Ill. 319; Jones v. Chicago and Iowa R. R. Co. 68 Id. 380...