Mcreynolds v. the Burlington

• Decision Date: 29 March 1883
• Parties: DEE MCREYNOLDS et al.v.THE BURLINGTON AND OHIO RIVER RAILWAY COMPANY.
• Court: Illinois Supreme Court

106 Ill. 152

1883 WL 10195 (Ill.)

DEE MCREYNOLDS et al.

v.THE BURLINGTON AND OHIO RIVER RAILWAY COMPANY.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Macoupin county; the Hon. LEWIS P. PEEBLES, Judge, presiding.

Mr. G. L. ZINK, and Messrs. ANDERSON & BELL, for the appellants:

The verdict of the jury is so clearly against the preponderance of the evidence that a new trial should have been granted. The witnesses place the damages greatly in excess of the sum allowed by the jury. These witnesses, in the language of the court in Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290,“were all acquainted with the farm; they knew the value of the land, and were familiar with the use and productions of such property, and were well qualified to form correct opinions as to the value of the farm, either with or without the road,” etc.

The fact that the jury make a personal examination of the land and the line of the road, will not authorize them to entirely disregard the other evidence in the case.

The court erred in instructing the jury they might deduct and set off from the damages to the land not actually taken, any special benefits resulting to the farm from the construction and operation of the road. This is in the face of section 9 of the Eminent Domain act, and Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.

The court erred in permitting appellee to withdraw its motion for a new trial, against the objection of appellants, after the same had been confessed, and consented to by appellants. Penn v. Oglesby, 89 Ill. 110.

Mr. R. B. SHIRLEY, for the appellee:

The testimony as to the damages amounts to nothing but the opinions of witnesses, and the jury were only required to weigh such testimony, and give such weight as they believed it to deserve. Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.

Where the jury go upon the premises and make a personal examination, what they thus learn from their own observation the court can not know. The result of such investigation may have justified the assessment made, even if the preponderance of the evidence in the record might be different. Chicago and Iowa R. R. Co. v. Hopkins et al. 90 Ill. 323.

The term “special benefits,” in the instruction complained of, means such as are special to the land, and not those that are common to other property. There was no error in allowing appellee to withdraw the motion for a new trial, nor in refusing to allow appellants to open and close the case to the jury. Village of Hyde Park v. Dunham, 85 Ill. 572.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a petition filed by the Burlington and Ohio River Railway Company, in the county court of Macoupin county, for the purpose of condemning, for the right of way of its railway, two certain strips of land. The defendants in the petition were the owners of two different farms, lying each in a compact body, and consisting, one of 256 acres, and the other of 420 acres. The petition sought to condemn a strip of land through the smaller body, ninety feet wide, containing 6 14/100 acres, and one through the other, sixty-six feet wide, containing 9 acres and a fraction. A cross-petition was filed by the defendants, claiming damages to the whole of the several 256 acres and 420 acres. The jury went upon and viewed the premises, as provided for by the statute, and found the damages to be, to the smaller tract, $404.20, and to the larger, $859.50,--$1263.07 in all. The defendants appeal from the assessment.

It is complained that the verdict is clearly against the preponderance of the evidence. This would be so if the opinions of witnesses, as expressed, were to be taken as the measure of damages. The sum of the several estimates of damages, divided by the number of witnesses, would give an amount much larger than that which was assessed. But this is not the mode to deal with the opinions of witnesses. They are not to be passively received and blindly followed, but they are to be weighed by the jury, and judged of in view of all the testimony in the case and the jury's own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive. The opinions of witnesses is a variable and uncertain class of testimony, especially upon a question of damages like the present, where there was no matter of special damage claimed, but damage only from the general inconvenience of carrying on the farm with the railroad running through it. An illustration is found in this case, where opinions of the amount of damages range from nothing to $4000 and upwards. There was testimony that the land would be specially benefited in the draining of it. The basis upon which the larger amounts of damages was estimated, was, in part, of the most unreliable and unsatisfactory character,--such as, the danger of crossing with teams, and danger of children and...