St. Louis & C. R. Co. v. Postal Tel. Co. of Illinois

• Decision Date: 18 June 1898
• Citation: 51 N.E. 382,173 Ill. 508
• Court: Illinois Supreme Court
• Parties: ST. LOUIS & C. R. CO. et al. v. POSTAL TEL. CO. OF ILLINOIS.

173 Ill. 508

51 N.E. 382

ST. LOUIS & C. R. CO. et al.

v.POSTAL TEL. CO. OF ILLINOIS.

Supreme Court of Illinois.

June 18, 1898.

Appeal from Jackson county court.

Condemnation proceedings by the Postal Telegraph Company of Illinois against the St. Louis & Cairo Railroad Company and another. Judgment for petitioner. Defendants appeal. Affirmed.

Carter, C. J., and Cartwright, J., dissenting.Ritchie, Esher & Woolley and John M. Herbert, for appellants.

Loesch Bros. & Howell, Frank J. Loesch, and J. R. McIntosh, for appellee.

This is a petition, filed on June 4, 1897, in the county court of Jackson county, by the appellee, a telegraph company, organized under the laws of Illinois on April 20, 1887, for the purpose of condemning a right of way for its telegraph line upon and along the right of way of the St. Louis & Cairo Railroad Company, from Cairo, in Alexander county, to East St. Louis, in St. Clair county, a distance of about 152 miles. The petition alleges that the St. Louis & Cairo Railroad Company was a corporation under the laws of Illinois, and owned all the right of way of the railroad extending from East St. Louis to Cairo; that on February 1, 1886, said railroad company leased to the Mobile & Ohio Railroad Company said right of way for a term of 45 years; that said Mobile & Ohio Railroad Company was in possession and control of said right of way and railroad; that said right of way is 100 feet wide, and extends the entire length of said railroad from East St. Louis to its terminal, in Cairo; that said railway from East St. Louis to Cairo is a single line, constructed at the center of the right of way; that the track is about 4 feet and 8 1/2 inches gauge, with switches, turnouts, etc., such as are necessary to operate a single-track railway; that the right of way extends about 50 feet wide from a line along the center between the rails of the main track. The other allegations of the petition, so far as it is necessary to refer to them, are set forth in the opinion.

The defendants entered a special appearance, and, on the day set for the trial, moved to quash the summons, and also made a number of motions to dismiss the petition upon several grounds, which are referred to in the opinion. The appellant the St. Louis & Cairo Railroad Company also filed a demurrer, specifying various causes of demurrer, most of which were the same in substance as the grounds alleged in support of the motions to dismiss the petition. The motion to require the petitioner to furnish a more particular description of the proposed location of the line of telegraph over the right of way of the defendants was sustained. The demurrer was also sustained so far as it alleged that the petition did not contain a sufficient description of the property sought to be condemned, or of the proposed telegraph line to be erected. All the other motions to dismiss were overruled, and the demurrer to the petition was also overruled, except as to the ground of demurrer already stated. The petitioner then amended its petition, so as to describe more particularly the property sought to be condemned, and the proposed location of the telegraph line to be built. The defendants then traversed each and every of the allegations of the petition, as amended, and called for proofs. The petitioner then introduced its certificate of incorporation, and certain testimony to show that it could not agree with the appellants as to the compensation to be paid. It also offered a copy of the resolution of its board of directors, authorizing the location and construction of the telegraph line upon said right of way. The court found the issues for the petitioner, and adjudged that it was entitled to maintain the proceeding, and ordered the cause to proceed to trial before a jury upon the issue of compensation and damages. A trial was had, and an award was found by the jury; but, both the petitioner and the defendants having moved for a new trial, the same was granted. On July 6th the defendants again appeared, and made motions to quash the summons and dismiss the amended petitions, which motions were overruled. Defendants then refiled their original demurrer upon the same grounds as those already stated, which was also overruled. Defendants then traversed all the allegations of the amended petition; but the court ruled that its finding at the former trial upon said issues, which was in favor of the petitioner, should still stand as the judgment of the court. The defendants then moved for leave to file a cross petition, which was denied. The jury was called, and evidence was submitted upon the question of compensation and damages. At the close of the evidence, defendants moved the court to direct the jury to go upon the land sought to be condemned in the counties of St. Clair, Monroe, Randolph, Perry, Jackson, Union, and Alexander, to view the premises. This motion was overruled.

The jury returned a verdict as follows: ‘We, the undersigned jurors, beg to report that after hearing the evidence in the abovestyled cause, and having gone upon the lands and right of way sought to be taken and damaged, and determined upon the compensation and damages that it would be just for the petitioner to pay the defendants, we find and have ascertained that the just compensation to be made to the St. Louis and Cairo Railroad Company for taking and damaging their lands and right of way described in the petition for a right of way to construct and maintain a telegraph line and erect telegraph poles at a distance of about one hundred and seventy-five feet from each other, over the right of way of defendant the St. Louis and Cairo Railroad Company, at a distance of not less than twenty-five feet from the outer edge of said railroad track, upon the east side thereof, or at such point as may be agreed upon by the petitioner and the railroad company operating said road, beginning at the corporation line of said railroad of the city of East Et. Louis, Illinois, and extending southerly through the counties of St. Clair, Monroe, Randolph, Perry, Jackson, Union, and Alexander, to the corporation line of the city of Cairo in the state of Illinois, to be the sum of $99. And we find the just compensation and damages to be paid to the Mobile and Ohio Railroad Company for such taking of said premises to be the sum of one dollar.’ After the verdict, and before the jury was discharged, the defendants moved the court to go upon all the lands described in the petition in said several counties, and view the same; and, in support of said motion, submitted an affidavit of the sheriff, showing that the jury had gone to view the land in question upon said right of way within the limits of the city of Murphysboro, and for a distance of two miles south thereof and one mile north thereof, making a total distance of about three miles. This motion was overruled, and judgment was entered on the verdict. The present appeal is prosecuted from the judgment so entered by the county court.

MAGRUDER, J. (after stating the facts).

1. The defendants, limiting their appearance for the purpose, moved to quash the summons, upon the ground that this proceeding was begun in vacation, and summons was returnable to the court, and not to the judge. This motion was properly overruled. The contention of the appellants is that the county court obtained no jurisdiction of them by the service of summons, because the summons was returnable to the court, instead of being returnable to the judge of the court. Section 3 of the eminent domain act provides that, if the petition is presented to a judge in vacation, the judge shall note thereon the day of presentation, and shall also note thereon the day when he will hear the same, and shall order the issue of summons, etc. This cause was set to be heard on June 23, 1897, which was in vacation. Section 2 of the eminent domain act also provides that the party seeking condemnation shall apply to the judge of the circuit or county court, either in vacation or term time. While it is true that the act makes use in several of its sections of the expression ‘judge or court,’ yet it was not the intention of the act to provide two tribunals for the hearing of condemnation cases,-one, the judge, as an individual; and the other, the court, as a judicial tribunal. The judge cannot exercise judicial power, except when sitting as a court, and not as an individual. Whether the proceeding be in vacation or term time, it is a proceeding in court. Therefore the summons was properly made returnable to the county court, instead of the judge. Such was the view of this court in reference to the contention here made upon this point when it was urged in Bowman v. Railroad Co., 102 Ill. 459.

2. It is claimed that the petition should have been dismissed, upon a motion made for that purpose, for want of necessary parties thereto. In support of this motion, the appellants submitted an affidavit showing that the railroad right of way was subject to a mortgage or deed of trust executed by the St. Louis & Cairo Railroad Company to certain trustees, to secure a certain amount of indebtedness, and also showing that said trustees were dead, and that certain successors in trust had been appointed in their places. The motion to dismiss was based upon the fact that these mortgagees or trustees were not made parties defendant to the petition to condemn. As the mortgagees were interested parties, they should have been made defendants. But the failure to make them defendants cannot be taken advantage of by the appellants, one of whom is the mortgagor, and the other the lessee of the mortgagor. ‘An omission of any proper party will not invalidate the proceedings as against such persons as are made parties. The only consequence is that, as against the omitted party, the condemnation is nugatory.’ 7 Enc. Pl. & Prac. p. 504. The mortgagees, not being made parties, would be left unaffected as to their interests by the...