The Chicago v. Davis

• Decision Date: 30 September 1877
• Citation: 86 Ill. 20,1877 WL 9650
• Parties: THE CHICAGO AND IOWA RAILROAD COMPANYv.RICHARD DAVIS.
• Court: Illinois Supreme Court

86 Ill. 20

1877 WL 9650 (Ill.)

THE CHICAGO AND IOWA RAILROAD COMPANY

v.RICHARD DAVIS.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Kane County; the Hon. HIRAM H. CODY, Judge, presiding.

This was an action of trespass quare clausum fregit, by Richard Davis against the Chicago and Iowa Railroad Company.

It appears the road was constructed across the plaintiff's land with his knowledge and without objection on his part, and that sometime afterwards proceedings were had to condemn the land, and the plaintiff's damages assessed, but not paid. Afterwards, in November, 1873, the plaintiff notified the defendant to stop running its trains across his lands; and on failure to observe such notice this suit was brought to recover damages. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $55.

Mr. B. F. PARKS, for the appellant.

Mr. S. W. BROWN and Mr. A. J. HOPKINS, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This was an action of trespass. The verdict and judgment went for plaintiff for damages $55. Defendant appeals to this court.

It appears from the proof that, about 1870, the railroad company constructed a railroad across the lands of plaintiff, and have been running trains over the same ever since. A stipulation as to the facts was made, stating that, at the time of the construction of the road, plaintiff was the owner of the land in question and was then in possession thereof, and had so continued until this action was brought.

The proof shows that the construction of the road across plaintiff's lands was with plaintiff's knowledge and that he made no objection thereto, although he often talked with the employees of the railroad company, and interposed a request now and then as to the location of the line, and relating to cattle-crossings, some of which were complied with.

The proof also shows that, after the adoption of our Constitution of 1870, at the request of the railroad company, three commissioners were appointed to assess damages for the right of way; and plaintiff, having knowledge of this proceeding, encouraged these commissioners to award as to his damages, and it was done. The proof tends to show that, when the commissioners were about to act, plaintiff declared that he had consented to claim no damages for the right of way in case a depot should be established at the center of the town, but as he had no faith in railroad...