The Chicago v. Exrs

• Decision Date: 30 September 1878
• Citation: The Chicago v. Exrs, 90 Ill. 316, 1878 WL 10155 (Ill. 1878)
• Parties: THE CHICAGO AND IOWA RAILROAD COMPANYv.ROBERT HOPKINS et al. Exrs., etc.
• Court: Illinois Supreme Court

90 Ill. 316

1878 WL 10155 (Ill.)

THE CHICAGO AND IOWA RAILROAD COMPANY

v.ROBERT HOPKINS et al. Exrs., etc.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Kendall county; the Hon. H. H. CODY, Judge, presiding.

Messrs. KRETZINGER & VEEDER, for the plaintiff in error.

Messrs. RICHOLSON & SNOW, for the defendants in error.

Mr. JUSTICE BAKER delivered the opinion of the Court:

This was a proceeding, commenced by the Chicago and Iowa Railroad Company, under the Eminent Domain act, against Robert Hopkins, Christ. Reingardt and Henry Ahrens, to condemn a certain strip of land described in the petition, for right of way. The land in question is located in De Kalb county, and the petition was filed in that county, but subsequently, by agreement of parties, the venue of the cause was changed to the circuit court of Kendall county. A trial was had in this latter county in August, 1875, in vacation, before the judge and a jury. The jury fixed the compensation and damages of Hopkins at $1500, and further found that Reingardt and Ahrens, who were tenants of Hopkins, had no interest in the land, and were not entitled to any compensation or damages. A motion for a new trial was overruled, and a judgment was rendered on the verdict. The company brings the record to this court and assigns various errors.

The lands described in the petition are all situate in sections 15 and 16, town 38, range 5 east, but upon the trial Hopkins was permitted to introduce evidence as to damages to his whole farm of some 730 acres, a portion of which farm is located in section 21, and which portion is distant 100 rods from the railroad at the nearest point.

It was decided by this court in the case of Mix v. Lafayette, Bloomington and Mississippi Railway Co. 67 Ill. 319, the evidence should be confined to the particular lots described in the petition, unless the defendant filed a cross-petition setting up he was the owner of other ground not described in the original petition, which would be damaged, and made claim to have the damages thereto likewise assessed.

In Jones v. Chicago and Iowa Railroad Co. 68 Ill. 380, it was held, if appellant had desired to have the damages assessed for injuries sustained to lands owned by him contiguous to the tract described in the petition, he ought to have filed a cross-petition. Peoria, Atlanta and Decatur Railroad Co. v. Sawyer, 71 Ill. 361, is to the same effect.

The case of City of Bloomington v. Miller, 84 Ill. 621, cited by defendants in error, announced no different rule, but expressly referred to the Mix case, and recognized the rule therein enunciated; and the decision in the Bloomington case is based upon the fact the lot 10 mentioned in the record in said case is a part of the block 3 mentioned in the petition.

It appears, however, the defendant Hopkins filed in this cause a pleading, in substance as follows:

“And the said Robert Hopkins comes and says that he is the owner of the lands mentioned in the petition, and other land contiguous thereto, making a farm of 730 acres in a compact body; that said railroad company takes about 12 acres out of his farm, dividing wood, water and timber from the balance of the farm; that the land thus taken is of the value of $150 per acre, and the damage by reason of cutting the farm is $10,000, and he respectfully asks that his compensation and damages may be awarded to him as shall be just and proper.”

Few formal pleadings seem to be required in this class of cases. The only pleadings expressly mentioned in the statute are, the petition provided for in the second section of the act, and the cross-petition, provided for in the eleventh section, to be filed by any person interested in the property to be taken or damaged who has not been made a party defendant to the original petition. No provision is made for an answer to either the original or cross-petitions. Either with or without an answer, and without any formal issue joined, both the party authorized to take or damage property, and the parties defendant, whether made such originally or on their own motion by cross-petition, have the right, under the law, to appear at the time fixed for the hearing of the petition, and to challenge jurors as in other civil cases, and to offer and introduce proofs before the jury. The object of filing the petition and cross-petitions is to give the court jurisdiction of the subject matter of the inquiry, and all the subsequent proceedings are based upon the petition or petition and cross-petitions, as the case may be. All evidence offered must be pertinent to the subject of inquiry involved in the proceeding, and the subject of inquiry involved is to be determined from the petition and cross-petitions filed. Hence the necessity, although no express statutory provision is made therefor, of a cross-petition or of some written statement of claim for compensation or damages, in cases where a defendant to the original petition seeks to recover for contiguous property not mentioned in such petition. This is the principle that underlies the cases to which reference has been made.

The pleading filed by Hopkins in this cause is substantially a cross-petition, and sufficiently complies with all the necessary requirements of the law and of the former decisions of the court, at least to give jurisdiction of the subject matter of the proposed inquiry. It may be the court would have required, if it had been asked so to do by plaintiff in error, the defendant Hopkins to make his cross-petition or statement of additional claim for damages more specific in some respects,--but this was not done. As it is, the court and the parties are fully advised, by the affirmative allegations of this pleading, that Hopkins claims to be...