Jones v. the Chicago

• Decision Date: 30 September 1873
• Parties: HIRAM JONESv.THE CHICAGO AND IOWA RAILROAD COMPANY.
• Court: Illinois Supreme Court

68 Ill. 380

1873 WL 8366 (Ill.)

HIRAM JONES

v.THE CHICAGO AND IOWA RAILROAD COMPANY.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Ogle county; the Hon. WILLIAM W. HEATON, Judge, presiding.

The jury assessed the defendant's damages at $500, and he, not being satisfied, brings the case to this court on appeal.

Messrs. EDSALL & BARDWELL, for the appellant.

Mr. J. H. CARTWRIGHT, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This proceeding was instituted in 1870, by the Chicago and Iowa Railroad Company, to condemn the right of way over certain lands, alleged to be owned by appellant, but no trial was had in the circuit court until the April term, 1873. The strip of land sought to be condemned is accurately described in the petition, and is a part of a certain eighty-acre tract. The evidence shows appellant owned other lands abutting the tract on which the railroad is constructed, but the court very properly instructed the jury they could only allow for damages occasioned to that described in the petition. Had appellant desired to have the damages assessed for injuries sustained to contiguous lands owned by him, he ought to have filed a cross-petition. In Mix v. Lafayette, Bloomington and Miss. R. R. 67 Ill. 319, it was decided it was necessary for complainant to file a cross-petition alleging he was the owner of lands, not described in the petition, that were injured by the construction of the railroad, before he could be permitted to offer evidence of that fact. This was not done, and the inquiry as to damages sustained was properly confined to lands described in the original petition. No other issue was presented in the pleadings.

It is insisted, as a ground of reversal, the court erred in giving the first instruction for appellee. By it the jury were told, as a matter of law, the company was “bound to maintain and erect fences suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on their said road, with openings or gates or bars at farm crossings of said railroad, for the use of the proprietors of the lands adjoining the same, and the jury in this case have no right, in estimating the compensation to the defendant Jones, to take into consideration any loss, inconvenience or damage resulting from the failure of the petitioner to maintain such fence or farm crossings.”

The act of 1855 makes it the duty of every railroad company whose line of road has been open for use six months, to inclose the same with a fence suitable and sufficient to prevent stock from getting upon the track, except in cases where the adjoining land-owner has received a compensation from the company for erecting and maintaining such fences. The act of 1869 has given the land-owner a remedy to enforce the duty imposed by the former law, so that the statute now affords the owner a complete remedy for any loss, inconvenience or danger resulting from a failure to erect and maintain the necessary fences. Appellee's road had been open for use more than six months prior to the trial, and, from the manner in which it was conducted, we should infer the company had previously erected fences on either side of its road, as required by law. No complaint is made that the company had not erected the necessary fences, and no proof was offered on that question. On the theory the company had previously constructed the necessary fences, there was no error in the court instructing the jury not to consider the failure to maintain...