Pub. Serv. Co. of Northern Illinois v. Leatherbee

• Decision Date: 03 April 1924
• Docket Number: Nos. 15717-15720.,s. 15717-15720.
• Citation: 143 N.E. 97,311 Ill. 505
• Parties: PUBLIC SERVICE CO. OF NORTHERN ILLINOIS v. LEATHERBEE et al.
• Court: Illinois Supreme Court

311 Ill. 505

143 N.E. 97

PUBLIC SERVICE CO. OF NORTHERN ILLINOIS

v.LEATHERBEE et al.

Nos. 15717-15720.

Supreme Court of Illinois.

Feb. 19, 1924.

Rehearing Denied April 3, 1924.

Condemnation proceeding by the Public Service Company of Northern Illinois against Robert W. Leatherbee and others. From judgment on verdict fixing compensation and damages, defendants appeal.

Affirmed.Appeal from Lake County Court; Fred E. Carpenter, Judge.

E. M. Runyard and E. V. Orvis, both of Waukegan (Ralph J. Dady and George W. Field, both of Waukegan, and I. B. Perlman, of Chicago, of counsel), for appellants.

Isham, Lincoln & Beale and Gardner, Foote, Burns & Morrow, all of Chicago (Cyrus H. Adams, William A. Morrow, Walter M. Fowler, and Addison L. Gardner, Jr., all of Chicago, of counsel), for appellee.

CARTWRIGHT, J.

On February 24, 1923, the appellee, the Public Service Company of Northern Illinois, in pursuance of an order of the Commerce Commission authorizing and ordering the construction of an electric transmission line, filed its petitionin the county court of Lake county to cause to be ascertained the compensation to be paid for the right of way over four separate tracts of land to be used for the construction and operation of such transmission line. The right of way described extended north and south 100 feet wide across three of the tracts, and turned at right angles, at the north end, east 150 feet in width to a power plant on the shore of Lake Michigan. Cross-petitions were filed, alleging damages to the portions of the several tracts not taken, and the cause was submitted to a jury. The jury returned a verdict finding compensation as to each of the tracts of land taken and damages to the several tracts over which the north and south right of way extended. Judgment was entered upon the verdict, and this appeal was prosecuted.

What is called the Perlman tract is the one through which the right of way is 150 feet wide, and it is situated at the north limits of Waukegan, which is 35 miles from Chicago. When the petition was filed, the record title was stated to be in Charles Herbert Keith, trustee under the last will and testament of William Scott Keith, deceased. William Perlman had contracted for the purchase of the land, for the purpose of subdividing it into lots and blocks, and had paid earnest money on his purchase. Perlman acquired the title and subdivided the tract, and filed his cross-petition, praying that damage to the remainder of the property not taken should be determined. After the jury was impaneled, Perlman moved the court for a separate trial, and the motion was denied. It was supported by the affidavit of Perlman that the tract was of much greater value than the other tracts, on account of the fact that it had been platted and subdivided into lots and blocks, and the jury would be influenced by the value of the other property in fixing the value of that tract. Whether or not a separate trial should be allowed is discretionary with the court, and in the absence of anything to show an abuse of that discretion the action of the court will not be interfered with. Concordia Cemetery Ass'n v. Minnesota & Northwestern Railroad Co., 121 Ill. 199, 12 N. E. 536;Braun v. Metropolitan Elevated Railroad Co., 166 Ill. 434, 46 N. E. 974;Eddleman v. Union County Traction Co., 247 Ill. 409, 75 N. E. 510;Chicago & Northwestern Railway Co. v. Chicago Mechanics' Institute, 239 Ill. 197, 87 N. E. 933. There was no reason to anticipate that the jury would not understand differences in the value of different tracts, and the court did not err in denying the motion.

The first ground alleged for the reversal of the judgment is that the court deprived the defendants of a fair and impartial trial by statements made during the introduction of evidence, and there are 15 pages of the argument devoted to that subject, with a suggestion that we should infer the facial expressions of the court in making remarks. There was no objection or suggestion of the impropriety of any remark, except in one instance where a question was asked, and the court in ruling spoke of it as a fishing expedition, but on objection withdrew the allusion to fishing, and directed the jury to pay no attention to it. In order to base an assignment of error upon alleged improper remarks of the court it must appear from the record that objections were made and exceptions taken at the time. Chicago City Railway Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087. Aside from the want of any objection, there is nothing in the matter quoted which justifies the claim that the court created a prejudice in favor of the corporation, which has been regarded as quite difficult. The court frequently repeated what a witness had said, and often instructed witnesses to speak louder, and told a witness at one time to take his hand away from his mouth, and, when a leading question was asked and objection made, the court said he thought the witness was suffering from stage fright with so many distinguished counsel, and overruled the objection. There is no intimation of bias against the defendants in anything the court said.

The opinions of the witnesses as to market values and damages took a wide range, as is both natural and usual. Such opinions differ greatly, where the witnesses are entirely honest and capable, from natural conservatism on the one hand and anticipation of the future on the other insensibly influencing the judgment as to present value. There is no market value of land in the sense in which open markets are maintained, where all varying opinions come together and a standard of values is fixed. There are differences in soil, improvements, location, and surroundings, appealing with greater or less force in the conclusions of witnesses, and there is no responsibility for opinions. Compensation and damage severally awarded were greater than the opinions of witnesses for the petitioner would justify, and less than the opinions of witnesses for the defendants would warrant. The jury viewed the premises, and the verdict in this case was within the range of the testimony, and in such a case the judgment will not be disturbed upon...