Spear v. the Drainage Commissioners.
| Citation | 113 Ill. 632 |
| Decision Date | 15 May 1885 |
| Parties | JOSEPH SPEARv.THE DRAINAGE COMMISSIONERS. |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the County Court of Whiteside county; the Hon. WILLIAM J. MCCOY, Judge, presiding.
Mr. C. L. SHELDON, for the plaintiff in error:
Opinions of witnesses as to amount of benefits or damages sustained by a party, are not competent. Yost v. Convoy, 92 Ind. 464; Railroad Co. v. Fitzpatrick, 10 Id. 120.
Messrs. BENNETT & GREEN, for the defendants in error:
The opinions of witnesses, based upon a thorough acquaintance with the land, and in most instances upon considerable experience in drainage, were certainly competent. Green v. City of Chicago, 97 Ill. 370; Railroad Co. v. Henry, 79 Id. 290; Hayes v. Railroad Co. 34 Id. 373; Railroad Co. v. Haslam, 73 Id. 495.
In a proceeding under the Drainage act, commenced by the commissioners of Union district No. 5, in Montmorency and Caloma townships, Whiteside county, this State, for the purpose of constructing certain ditches for drainage purposes, and assessing the cost thereof upon such of the lands lying within the district as would be specially benefited thereby, they assessed a certain tract of land lying therein, and belonging to Joseph Spear, the plaintiff in error, at $302.50. This assessment, on appeal by Spear, was reviewed and confirmed by three supervisors. From the order of confirmation Spear then appealed to the county court of Whiteside county, where the cause was tried de novo, before the court and a jury, resulting in a reduction of the assessment to $250, for which latter sum final judgment was entered.
Upon a motion by plaintiff in error to apportion the costs, on the ground the amount of the assessment had been materially reduced, the court adjudged and directed that plaintiff in error pay two-thirds of the costs,--and the ruling of the court in this respect is assigned for error. We do not think there was such an abuse of the discretion of the court in thus apportioning the costs, as to warrant a reversal for that reason.
We also regard as equally untenable the claim of plaintiff in error that the evidence is so manifestly insufficient to sustain the verdict of the jury as to require a reversal of the judgment. Assuming the witnesses on behalf of defendants in error are trustworthy, of which it was the special province of the jury to determine, we think the evidence is quite sufficient to sustain the finding.
It is also objected that the court erred in permitting witnesses to give their opinions as to how much the land of plaintiff in error would be benefited by the proposed drainage, without its being first shown they had some special knowledge or training on that subject, and the cases of Evansville Railroad Co. v. Fitzpatrick, 10 Ind. 120, and Yost v. Convoy, 92 Id. 464, cited by plaintiff in error, seem to support the position. The reasoning of the court in those cases seems to be, that to admit such testimony “would put the witnesses in the places of the jurors, and commit them to the amount of recovery.” If this reasoning is to be extended, it would certainly lead to the exclusion of this kind of testimony in many cases where the right to introduce it has never been questioned. It is a matter of every day experience to introduce testimony of this kind in condemnation cases, and other cases where the question is how much an adjacent piece of land has been injured by some improvement, such as the excavation of a ditch, the throwing up of an embankment, and the like; and the right to do so is fully recognized by this court. ( Green v. City of Chicago, 97 Ill. 370.) Indeed, the right to introduce in evidence the opinions of non-professional witnesses about...
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