The Peoria v. Laurie

• Decision Date: 31 January 1872
• Citation: 1872 WL 8169,63 Ill. 264
• Parties: THE PEORIA, PEKIN AND JACKSONVILLE RAILROAD CO.v.GEORGE W. LAURIE.
• Court: Illinois Supreme Court

63 Ill. 264

1872 WL 8169 (Ill.)

THE PEORIA, PEKIN AND JACKSONVILLE RAILROAD CO.

v.GEORGE W. LAURIE.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Scott county; the Hon. CHARLES D. HODGES, Judge, presiding.

The Peoria, Pekin and Jacksonville Railroad Company filed its application and petition, in conformity to the law of June 22, 1852, for the condemnation of right of way over certain lands designated in the petition as the property of George W. Laurie, in the county of Morgan. Due service upon Laurie being shown, commissioners were appointed who, upon examination, etc., made award that the benefits were equal to the damages sustained, therefore awarding no damages. From this award Laurie appealed to the circuit court.

Upon application of the appellant herein, change of venue to Scott county was had.

Upon trial at the October term, 1869, judgment was rendered for the appellee herein for $1276. The application of appellant for a new trial being denied, the case comes to this court on bill of exceptions. The opinion states the points raised in the case.

Messrs. MORRISON & EPLER, and Mr. E. P. KIRBY, for the appellant.

Mr. H. G. WHITLOCK, and Messrs. MCCLURE & STRYKER, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

The first objection urged to the finding in this case, and the judgment thereupon, is, that the appellee failed to make out a proper title to the lands proposed to be taken by the company for the right of way of its road. The petition, as is shown by special reference made in it, was filed under the act of June 22d, 1852, and was addressed to the judge of the circuit court.

It is, however, claimed that the petitioner had the right to the benefit of the act of 1845, or of any general law upon the subject of eminent domain, by virtue of its several charters. While this may be true, the company did not possess the right to proceed under all the laws upon this subject at the same time and upon the same petition. It had the right to select the statute which should control the proceedings, but then it must abide by the selection. It could not commence under the law of 1852, file the petition, give the notice, and have commissioners act and report, as required by its provisions, and then abandon it and proceed under some other law. We think, from the character of the proceedings, as instituted, and the direct reference made to the act of 1852, that the company must be governed by that act, and that the rights of the parties must be controlled by it.

Is, then, the question of the title to the land to be taken, involved in the trial of the appeal from the report of the commissioners? We think not.

The petition, as the statute required, alleged that appellee was the owner of the land, and the only object, as well as the prayer, of the petition was to ascertain the compensation to be paid to the owner. The only issue was the amount of the damages. When the company alleged ownership in appellee, and he acknowledged it by claiming damages, there was an end of any contest about the title.

Why should appellee be required to prove a necessary and affirmative allegation in the petition? It was the duty of the company either to ascertain the title before the commencement of proceedings, or, if the title was...