Peoria Gaslight & Coke Co. v. Peoria Terminal Ry. Co.

• Decision Date: 19 June 1893
• Court: Illinois Supreme Court
• Parties: PEORIA GASLIGHT & COKE CO. v. PEORIA TERMINAL RY. CO.

146 Ill. 372

34 N.E. 550

PEORIA GASLIGHT & COKE CO.

v.PEORIA TERMINAL RY. CO.¹

Supreme Court of Illinois.

June 19, 1893.

Appeal from circuit court, Peoria county; T. M. Shaw, Judge.

Condemnation proceedings by the Peoria Terminal Railway Company against the Peoria Gaslight & Coke Company. From the judgment, defendant appeals. Reversed.

Winslow Evans and Jack & Tichenor, for appellant.

George B. Foster and Stevens & Horton, for appellee.

BAILEY, J.

This was a proceeding under the eminent domain law, brought by the Peoria Terminal Railway Company against the Peoria Gaslight & Coke Company, to condemn for right of way a portion of the premises owned and occupied by the defendant with its buildings and other improvements and machinery, constituting its gas works. The premises of the defendant consist of one block of ground, bordering upon the Illinois river, and being something over 400 feet in length along the river, and about 300 feet in width, and containing about three acres. The land sought to be condemned consists of a strip 50 feet in width, along the margin of the river, and running the whole length of the defendant's premises, and containing 48-100 of an acre. At the trial the jury, after hearing the evidence and viewing the premises, rendered their verdict, fixing the compensation to be paid the defendant for the strip of land taken at $4,550, and assessing the damages to the land not taken at $2,750, making the total of the compensation and damages $7,300. Upon this verdict judgment was entered in the usual from, and the defendant brings the record to this court by appeal.

As furnishing evidence of the value of the land proposed to be taken, the petitioner was permitted, against the objection and exception of the defendant, to prove by several witnesses what the petitioner had paid other property owners for right of way along the same line, and the decision of the court admitting that evidence is assigned for error. The propriety, in cases of this character, of admitting proof of sales of other similar property, made at or about the same time, though doubted, and even denied, in some of the states, seems to us to be supported by the better reason, as well as by the greater weight of authority. Lewis, Em. Dom. § 443, and cases cited in notes. In this state its admissibility has been expressly affirmed in a few cases, and indirectly recognized in many others. Thus, in Provision Co. v. City of Chicago, 111 Ill. 651, a witness was permitted to give evidence as to the price at which another lot had been sold, without testifying as to the value of either that lot or of the one sought to be condemned, and it was held that there was no error in the admission of the evidence, it being said: ‘From the very necessities of the case, actual sales of property in the vicinity, and near the time, are competent evidence so far as they go. On crossexamination, all circumstances can be drawn out, showing that the given sale fails, and how much, of being a fair criterion of value.’ In Railroad Co. v. Maroney, 95 Ill. 179, evidence as to what an adjoining lot had been sold for, being offered in rebuttal, was excluded. The judgment was affirmed, on the ground that the proof offered was properly evidence in chief, but it was remarked that, if it had been offered in the first instance, it would doubtless have been admitted. In Railroad Co. v. Haller, 82 Ill. 208, no evidence of this character seems to have been offered, nor does its admissibility seem to have been in question; but it was said that what the property would sell for before and after the road was constructed would be one of the modes of ascertaining the damages, if the price was shown to have been reduced by the building of the road; and, ‘if there was no other property of the same value or description in the place which had been sold, then other modes would have to be resorted to than the proof of the sale of such property before and after the damage was done.’ White v. Hermann, 51 Ill. 243, was a suit to recover damages for an alleged breach of a contract for the sale of a tract of land, and the value of the land embraced in the contract was one of the matters in issue. As bearing upon that issue, it was said that no objection could be seen to the admission of proof of the value of other property similarly situated at or near the date of the contract, or even of property of a different quality in its immediate vicinity, leaving the jury to determine the difference of value, and that, if any witness knew of similar property having been sold about the time of the contract, he might testily to that fact. Chicago & N. W. Ry. Co. v. Chicago & E. R. Co., 112 Ill. 589, was a proceeding by one railroad company to condemn land owned and used by another company for transferring freight from its tracks to Lake Michigan. Proof was made of several sales of property in the vicinity designated by the witnesses as ‘dock property.’ The judgment was reversed on other grounds, and the propriety of this evidence was not directly passed upon, but the court, in discussing the mode of estimating the compensation to he paid for the property which, not being in the market or subject to sale, has, properly speaking, no market value, said: ‘While, in the nature of things, there can be no market value of a piece of property by being used in connection with, and as a part of, some extensive business or enterprise, its value must be determined by the uses to which it is applied. While, in such cases, the market value of neighboring lands differently circumstanced may be looked to as throwing some light upon the question, yet that alone would fall far short of furnishing a true or adequate test of the value of the property.’ The other decisions to which our attention is called do not seem to have any bearing upon the question of the admissibility of evidence of sales of other property. In Kiernan v. Railway Co., 123 Ill. 188, 14 N. E. Rep. 18, evidence as to how far the selling value of other farms in the county crossed by railroads had been affected thereby was held inadmissible. In Railroad Co. v. Blake, 116 Ill. 163, 4 N. E. Rep. 488, the decision was that real-estate brokers who testify that they are acquainted with the value of real estate in the neighborhood of the land sought to be condemned are competent witnesses as to the value of the same, even though their knowledge of values in the locality is not satisfactorily shown to be based on actual sales. The cases of Johnson v. Railway Co., 111 Ill. 413;Green v. City of Chicago, 97 Ill. 370; Railroad Co. v. Haslam, 73 Ill. 494; and Railroad Co. v. Winslow, 66 Ill. 219,-all relate to the question of the admissibility of opinion evidence as to values, and do not involve the question of the admissibility of evidence of sales of other property.

The theory upon which evidence of sales of other similar property in the neighborhood at about the same time is held to be admissible is that it tends to show the fair market value of the property sought to be condemned; and it cannot be doubted that such sales, when made in the free and open market, where a fair opportunity for competition has existed, become material and often very important factors in determining the value of the particular property in question. But it seems very clear that, to have that tendency, they must have been made under circumstances where they are not compulsory, and where the vendor is not compelled to sell at all events, but is at liberty to invite competition among those desiring to become purchasers. Accordingly, among the various decisions in this or other states to which our attention has been called, or which our own researches have discovered, we find none in which the price paid at a forced or compulsory sale has been admitted as competent evidence of value. On the other hand, in Dietrichs v. Railroad Co., 12 Neb. 225, 10 N. W. Rep. 718, evidence of the price paid at an administrator's sale for the very lots sought to be condemned was held to be incompetent. In discussing this subject, Mr. Lewis, in his treatise on the Law of Eminent Domain, says: ‘What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if...