Mitchell v. the Ill.
| Decision Date | 30 June 1873 |
| Citation | 68 Ill. 286,1873 WL 8341 |
| Parties | MARTHA MITCHELLv.THE ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HEREAPPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.
This was an action of forcible entry and detainer, by Martha Mitchell, against the Illinois and St. Louis Railroad and Coal Company, commenced before a justice of the peace. The cause was taken by appeal from the justice's judgment to the circuit court, where a judgment was rendered in favor of the defendant, from which the plaintiff appealed.
Messrs. C. W. & E. L. THOMAS, for the appellant.
Messrs. G. & G. A. KŒRNER, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:
On the trial of this case in the court below, it was admitted by appellee that appellant, at the time of filing her complaint, was entitled to possession of the premises sued for; that, on the day mentioned in the complaint, appellee forcibly entered and ousted appellant of her possession, and still holds the same from her, and that proper written demand was made before suit was brought. To justify this forcible entry and detainer, appellee offered in evidence, and it was received by the court against appellant's objection, a record showing that the premises in controversy were condemned and taken by appellee for the right of way for its road, and that appellant's damages sustained thereby were assessed, by commissioners appointed for that purpose, at $1. It was also admitted that the damages thus assessed were tendered to appellant; that she refused to accept the amount and appealed from the decision of the commissioners, and that the amount was then deposited with the county treasurer.
The record of condemnation shows that it is claimed to have been made under and pursuant to the act relating to right of way, approved June 22, 1852 (laws of 1852, p. 146); that the commissioners were appointed by the judge of the county court of St. Clair county, on the 17th day of October, 1870, and their report in writing was made on the 28th day of the same month.
The only question necessary to be noticed is, does the record of condemnation, as it is copied herein, justify appellee in entering upon the premises in controversy, and withholding their possession from appellant without her consent?
We do not think it does. It does not appear that appellee is entitled to possession, either under the act of 1852, under which the condemnation purports to have been made, nor under the provisions of the present constitution.
Under the 12th section of the act of 1852, relating to right of way, when an appeal was taken from the decision of the commissioners, if the party seeking the condemnation desired to enter upon, possess and occupy the property, pending the appeal, it was necessary that a bond should be given to the person whose property was sought to be taken, to secure payment of the amount of the judgment that should be finally rendered. This record furnishes no evidence that such bond was given. By the 15th section of that act it is provided that, “Upon verdicts rendered by juries, judgments shall be entered, declaring that upon the payment of compensation and damages, or either, as the case may be, the right and title to the same for which the compensation is to be made, or on account of which damages are...
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