The St. Louis v. Karnes

• Decision Date: 18 January 1882
• Citation: 101 Ill. 402,1882 WL 10174
• Parties: THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANYv.JOHN W. KARNES.
• Court: Illinois Supreme Court

101 Ill. 402

1882 WL 10174 (Ill.)

THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY

v.JOHN W. KARNES.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Saline county; the Hon. N. M. LAWS, Judge, presiding.

Messrs. YOUNGBLOOD & MOYERS, for the appellant, contended that the acceptance of the compensation fixed by the jury by the appellee, pending his appeal, and his retaining the same after reversal of the judgment of condemnation, estops him from maintaining ejectment for the land embraced in the right of way, citing Bigelow on Estoppel, 514; Raplee v. Stewart, 27 N. H. 310; Duff v. Wynkoop, 74 Pa. St. 300; Swanson v. Tarkington, 7 Heisk. 612; Keen v. City of Chicago, 38 Ill. 322; Martel v. City of East St. Louis, 94 Id. 67; McCarthy v. Lavasche, 89 Id. 270.

That an estoppel may be shown in defence of an action of ejectment: Noble v. Christman, 88 Ill. 186.

It was not the duty of the company to have the case redocketed. The acceptance of the condemnation money pending the appeal, and its retention, justified the assumption that Karnes had concluded to acquiesce in the assessment. Laws of 1877, p. 745, secs. 84, 85.

The evidence offered and refused showed a rightful entry upon the premises, and a lawful continuance of that possession, and should have been admitted as showing a defence.

Mr. H. H. HARRIS, for the appellee:

The condemnation proceeding upon which appellant relies for a defence was reversed, and has never since been redocketed, and hence the proceeding to condemn has been abandoned. Laws of 1877, p. 152, sec. 34.

An estoppel in pais, being merely an equitable right, can not avail in a suit at law. In ejectment the legal title must prevail. Blake v. Fash, 44 Ill. 303; Mills v. Graves, 38 Id. 464.

If the appellant had purchased the land from Karnes, and paid him in full, still Karnes could maintain ejectment. Fleming v. Carter, 70 Ill. 280.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of ejectment, brought by Karnes, the appellee, against the St. Louis, Alton and Terre Haute Railroad Company, the appellant, to recover possession of the lands described in the declaration, which are occupied by appellant as right of way for the Belleville and Eldorado railroad, of which road appellant is lessee. The plaintiff recovered, and the defendant appealed.

On the trial in the court below the defendant offered in evidence the record of a condemnation proceeding had in the county court of Saline county, where the lands in controversy are situate, on petition of the Belleville and Eldorado Railroad Company to condemn these lands of the plaintiff for the right of way of such railroad, showing that a trial was duly had between the parties, before a jury, for the assessment of the compensation for such right of way, the verdict of a jury fixing such compensation, and judgment duly rendered thereon, the taking of an appeal from the judgment by Karnes to the Supreme Court, on December 18, 1876, and the prescribing by the court, under the statute, of the bond which the railroad company should give to authorize its entry upon the use of the property condemned. The plaintiff objected to the introduction of the record, on the ground that the judgment had been by the Supreme Court, at its June term, 1878, reversed, and the cause remanded, and had never, by either of the parties, been reinstated on the docket of the Saline county court, which objection the court sustained, and rejected the offered evidence. An offered receipt by Karnes from the county treasurer of Saline county, dated February 17, 1877, of the condemnation money paid by the railroad company, was in like manner rejected. Karnes testified in the case, that on February 27, 1877, he received from the county treasurer of Saline county the condemnation money paid to the treasurer by the railroad company for the right of way over his lands for which this suit was brought; that he had never paid, or offered to pay, any part of the money back to the railroad company, or any of its agents, and that he did not propose to pay it back, for he thought the company had damaged him more than that amount.

It was admitted by the parties that the judgment in the condemnation proceeding was by the Supreme Court reversed, and the cause remanded, after Karnes received the condemnation money from the county treasurer, and that the railroad company executed the bond, as prescribed by the court, at the time of taking the appeal by Karnes, and that the railroad company paid all the condemnation money fixed by the jury before the company entered on the premises; that the defendant company was the lessee of the Belleville and Eldorado railroad company, and as such lessee occupied the premises described in the declaration.

We are of opinion the court below erred in rejecting the evidence of the record of the condemnation proceedings, and that such evidence, if it had been admitted, would have shown, in connection with the other evidence in the case, a defence to the suit. It would have shown the ascertainment, by the verdict of a jury under the Eminent...