Todd v. the Kankakee

• Decision Date: 30 September 1875
• Citation: 78 Ill. 530,1875 WL 8528
• Parties: H. C. TODD, Trustee, etc.v.THE KANKAKEE AND ILLINOIS RIVER RAILROAD CO.
• Court: Illinois Supreme Court

78 Ill. 530

1875 WL 8528 (Ill.)

H. C. TODD, Trustee, etc.

v.THE KANKAKEE AND ILLINOIS RIVER RAILROAD CO.

Supreme Court of Illinois.

September Term, 1875.

WRIT OF ERROR to the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. HARRISON LORING, for the plaintiff in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The railroad company filed a petition on the 5th day of August, 1870, for the condemnation of the right of way over the land of plaintiff in error. The proceeding was under the right of way law of 1852, and was in the county court of Kankakee county. On the filing of the petition, commissioners were appointed, and reported that appellant was entitled to one dollar for compensation, and one cent for damages for the land to be taken for right of way. Thereupon, defendant appealed to the circuit court, where, on a trial by a jury, a verdict similar to the report of the commissioners was found, and, upon overruling a motion for a new trial, the court rendered a judgment on the verdict. And the defendant brings the case to this court on writ of error.

The evidence showed that the road, as located, would run through a number of blocks in the town of Momence. There was evidence that these blocks are worth from $1000 to $4000 each. Witness Worcester speaks of six of them. And the road seems to have been located through some farm lands, which, the same witness states, were worth from $75 to $100 per acre. There was other evidence tending to prove the value of this property, at the date the proceedings were commenced for its condemnation.

On this evidence, plaintiff in error asked the court to give his eighth instruction to the jury, but it was refused. It would have told the jury that the law required they should, at all events, find and return the value of the land taken, as shown by the evidence; and that they should not deduct any benefits the land might receive from the location or construction of the road; but that they could set off benefits against damages the property might sustain by construction of the road. This is the substance of this instruction, and it is in strict accordance with the rule laid down in the cases of Hayes v. Ottawa, Oswego and Fox River Valley Railroad Co. 54 Ill. 373, and Peoria, Pekin and Jacksonville Railroad Co. v. Laurie, 63 Ill. 265, and it should have been given.

These cases hold that the owner must be paid, in money, the value of his land taken by the road, and that benefits can not be set off or deducted from that amount, but that benefits might be deducted from damages. It was, therefore, error to refuse to give this instruction, and it was equally error to give those for plaintiff, which announce a different rule.

Again, the court should have given the 13th instruction...