Smith v. the Chicago

• Decision Date: 31 March 1883
• Citation: 105 Ill. 511,1882 WL 14352
• Parties: PERRY H. SMITH, Jr. et al.v.THE CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.
• Court: Illinois Supreme Court

105 Ill. 511

1882 WL 14352 (Ill.)

PERRY H. SMITH, Jr. et al.

v.THE CHICAGO AND WESTERN INDIANA RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1882.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding.

Mr. FRANCIS H. KALES, for the appellants:

The railroad company proceeded to condemn more property than it showed a necessity for, in this case. There is no law in this State making the corporation the final judge of the quantity of land necessary to a given purpose. It can not conclude the land owner by its own mere assertion. Therefore the court erred in striking out that portion of respondent's answer which made this an issue. Booker v. Venice and Carondelet R. R. Co. 101 Ill. 333; Rennselaer R. R. Co. v. Davis, 43 N. Y. 137.

It is not proper to arrive at the value of the property taken by a comparison of opinions of the value of it and other property. Dana v. Fiedler, 12 N. Y. 40; Gouge v. Roberts, 53 Id. 619; Blanchard v. Steamboat Co. 59 Id. 300; Chandler v. Jamaica Pond Co. 122 Mass. 305.

The usual mode of proving value is by a general question, without referring to actual sales, leaving that to the cross-examination as a test of the witness' knowledge. Lafayette R. R. Co. v. Winslow, 66 Ill. 219; Illinois R. R. Co. v. VanHorn, 18 Id. 257; Snow v. Boston R. R. Co. 65 Maine, 230; Dwight v. Hampden, 11 Cush. 201; Pennsylvania R. R. Co. v. Bunnell, 81 Pa. St. 414.

The fifth instruction, concerning the opinions of witnesses in estimating value, was misleading, and the last clause thereof, seeking to cure the infirmity, is equally objectionable. That clause seeks to limit the principle before announced to cases where, “in other respects, the witnesses were of equal credibility, knowledge, information and experience.”

Mr. CHARLES M. OSBORN, for the appellee, contended, from the facts, that the land sought to be condemned was necessary for the purpose indicated. The clause in the answer was properly stricken out.

It seems to be well settled that where the petitioner has the right to condemn, and the petition states the necessity of the exercise of that right within the terms of the statute, the courts will not inquire into the necessity for the exercise of that power. Booker v. Venice and Carondelet R. R. Co. 101 Ill. 333. See, also, In re New York v. Kip, 46 N. Y. 553; New York Central R. R. Co. v. Hudson River R. R. Co. 77 Id. 259; Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 75 Ill. 336; Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 Id. 523; North Missouri Bank v. Galt, 28 Mo. 543; Mills v. County of St. Clair, 2 Gilm. 197; City of Galesburg v. Hankinson, 75 Ill. 153; Buffalo and New York R. R. Co. v. Brainard, 9 N. Y. 100; Miller v. Fowler, 53 Id. 62; Wier v. St. P. and T. F. R. R. Co. 18 Minn. 155; Parks' Appeal, 64 Pa. St. 137.

Evidence of particular sales are now admitted in this and almost every other State, not only on cross-examination, but on direct examination, as original evidence, tending to throw light upon the market value of the property in question. Chicago and Western Indiana R. R. Co. v. Marony, 95 Ill. 182; St. Louis, Terre Haute and Vincennes R. R. Co. v. Haller, 82 Id. 211; Jones v. Chicago and Iowa R. R. Co. 68 Id. 384; Shattuck v. Stoneham R. R. Co. 6 Allen, 115; Edmunds v. Boston, 108 Mass. 535; Chandler v. Jamaica Pond Co. 102 Id. 305; Searl v. Lack. and D. R. R. Co. 33 Pa. St. 63.

The instructions were correct.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

The Chicago and Western Indiana Railroad Company, on the 31st of March, 1881, filed in the county court of Cook county its petition, praying for the condemnation of certain real estate therein specified, and making Perry H. Smith, Emma Louisa Smith, Anna R. McCormick, and Lucy N. McCormick, the appellants, parties thereto. The petition alleges that it has located the line of its road in accordance with its charter, and that it intersects and passes over the said real estate, and that the company “desires to appropriate and use the said property for the purpose of building and constructing its said line of railroad aforesaid, and that said property is necessary for the right of way, side-track, stations and appurtenances required by petitioner in constructing and operating its said road.” The court allowed the petition, and caused a jury to be impaneled, and sworn to assess and report the appellants' damages. The damages, as assessed and reported by the jury, amounted altogether to $35,477.76, upon the payment of which amount to the county treasurer, for the use of appellants, the company was authorized to enter upon and take possession of the premises in question,--from which order the appellants have prosecuted an appeal to this court, and a reversal is asked upon several grounds.

It appears from the record, that pending the proceeding in the county court, and before the submission of the cause to the jury for assessment of the damages, the appellants filed a formal answer to the petition, setting forth, among other things, that the petitioner, prior to the institution of the condemnation proceedings, had leased its road, franchises, etc., to the Wabash, St. Louis and Pacific Railway Company, and also that the real estate described in the petition “is not required by the said petitioner for the purposes of its incorporation or the transaction of its business, or for its depots, station buildings, machine repair shops, or for right of way, or for any other lawful purpose connected with or necessary to the building, operating or running of said road by the said Chicago and Western Indiana Railroad Company.” Upon an exception to these portions of the answer they were stricken out by the court, and it is claimed by appellants that this was error.

We are aware of no rule of law or of practice authorizing the filing of an answer of any kind to a petition for the condemnation of land under the Eminent Domain act, nor do we think it the proper practice to permit one to be filed in any case, and the court might therefore with propriety have stricken the entire answer from the files; and if this might have been done, it follows there was no error in striking out a portion of the answer, as was done. The proceeding is purely statutory, and we look in vain through the various provisions relating to it for something to warrant such a practice. The 1st section of the statute contains the constitutional restrictions upon the right to take private property in any case, and is in these words: “That private property shall not be taken or damaged for public use without just compensation, and that in all cases in which compensation is not made by the State in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed.” The 2d section provides, “that in all cases where the right to take private property for public use without the owner's consent, or the right to construct or maintain any public road, railroad, plank road, canal, or other public work or improvement, * * * has been heretofore or shall hereafter be conferred by general law or special charter upon any corporate or municipal authority, * * * and the compensation to be paid for * * * the property sought to be appropriated * * * can not be agreed upon by the parties interested, * * * it shall be lawful for the party authorized to take * * * the property so required * * * to apply to the judge of the circuit or county court, either in vacation or term time, where the said property, or any part thereof, is situate, by filing with the clerk a petition setting forth, by reference, his or their authority in the premises, the purpose for which said property is sought to be taken, * * * a description of the property, the names of all persons interested therein, as owners or otherwise, as appearing of record, * * * and praying such judge to cause compensation to be paid to the owner, to be assessed.” The 3d section relates to filing petitions in vacation; the 4th section, to service of process; the 5th, to the hearing of causes, and the practice in such cases; the 6th, to the mode of selecting juries for assessments in vacation; the 7th, to the impaneling of the jury, and the mode of filling up the panel when exhausted; the 8th, to the oath of the jury; the 9th, to the form of the verdict, and a view of the premises by the jury; the 10th, to the judgment; the 11th, to cross-petitions; the 12th, to appeals; the 13th, to the appeal bond, and use of premises pending an appeal; the 14th, to the payment of the damages; the 15th, to the entry of the verdict by the court; and the 16th and last, to the repeal of former laws on the subject.

Thus it will be seen, that although the statute is very minute in all its details, specifically setting forth every step to be taken in the progress of a cause, from its inception to its final determination, yet it nowhere contains the slightest allusion to an answer by the defendants. Nor can we, on general principles, conceive the least necessity...