Ward v. Minnesota & N.W.R. Co.
| Decision Date | 25 January 1887 |
| Citation | 119 Ill. 287,10 N.E. 365 |
| Court | Illinois Supreme Court |
| Parties | WARD v. MINNESOTA & N. W. R. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court court, Kane county.
R. N. Botsford
, for Ward, appellant.
Gardner, McFaden & Gardner, for Minnesota & N. W. R. Co., appellee.
The petition in this case was exhibited by the Minnesota & Northwestern Railroad Company, and the object was to have a strip of land, particularly described and alleged to belong to Lorenzo C. Ward, condemned, under the eminent domain act, for the right of way upon which to construct its railroad track. The proceedings on the petition were had in the circuit court of Kane county. Before the trial was commenced, defendant filed a cross-petition, in which he described the land owned by him, of which the strip proposed to be taken by the railroad company for its right of way formed a part, and showing how it would be affected by cutting off from the main body of his land the strip to be condement, and the construction of the railroad upon it, and asked to have the damages assessed to him for the injury that would be done to the entire body of his land. The cause was submitted to a jury on the original and the cross-petitions, who, after viewing the premises and hearing the evidence offered by both parties, returned a verdict allowing the owner for the right of way $1,800, and for damages $1,700, making a total sum of $3,500, for which amount the court rendered judgment in the usual form. The land-owner brings the case to this court on appeal.
It will be observed the petition states every fact the law requires to be stated to give the court jurisdiction to hear and determine the condemnation proceedings. It is distinctly alleged petitioner is a corporation duly created, organized, and existing under the laws of the state of Illinois, and that it is authorized by its articles of incorporation to construct, operate, and maintain a railroad between certain terminal points within the state; that it intends to construct a railroad, as authorized by its articles of incorporation, and that the lands of defendant are necessary for use for the right of way; that petitioner, by its proper officers, has located its line of road over the lands of defendant; that it is unable to agree with the owner as to the compensation to be made for the taking of his land, and therefore asks that the compensation to be made to the owner for that portion of his land taken may be assessed under the statute. No question is made as to the form or sufficiency of the petition; but it is objected no proof was made on the trial that petitioner was either a de jure or a de facto corporation, and it is insisted the omission to make such proof is fatal to the present condemnation judgment. Several answers may be made to the position taken.
First. Defendant waived the making of such proof by going to trial on the merits of the controversy without objection. Even if proof is required to be made of the formal allegations of the petition, such proof is to be addressed to the court, and not to the jury. Whether the petitioner in such cases is a corporation, and is authorized to exercise the right of eminent domain is a question to be determined by the court, and with which the jury have no concern. It is a preliminary question; and if the land-owner goes to trial on the merits, without requiring such proof to be made, it will be understood he waives the making of the proof, and admits the capacity in which the petitioner sues. The fact that no formal answer may be required to be made to the petition, under the practice that prevails in this state, would not prevent defendant from objecting that petitioner shall not proceed to ascertain the compensation to be paid until proof is made it is a corporation either de jure or de facto under the law, and as such is authorized to execute the right of eminent domain In this case defendant went to trial on the merits, without objection as to the right of petitioner to condemn his land for public purposes, and he will be held to have waived the necessity for making proof of such right.
Second. There is some proof the petitioner is a corporation de facto, and that is all the law requires in this class of cases. There is evidence, although it may be slight, of corporate acts done by petitioner. It appears an engineer has been appointed, the line of the proposed road has been located, and other steps taken to wards the building of the road to be constructed between points named, and, among other things done, the line of road has been located over lands owned by defendant. These are corporate acts, and tend to show petitioner is a corporation de facto.
Third. By filing a cross-petition asking to have damages assessed for the injury done to his lands not taken, defendant admits petitioner has the right to exercise the right of eminent domain, and may lawfully condemn his lands for public purposes. This, of course, it could not do unless it was a corporation in fact and in law. Admitting, as the cross-petition does, petitioner's right to condemn defendant's land, dispenses with any necessity for proof that petitioner is a corporation, as alleged in the petition. In the cross-petition, reference is made to the ‘said railroad company;’ that is, the corporation mentioned in the original petition asking for the condemnation of defendant's land. It may also be said defendant further recognized petitioner as a de facto corporation by asking the court for a rule upon petitioner to exhibit its plan and profile of its projected railroad across his lands so proposed to be condemned. The court might well have understood from these and other facts appearing in the record, defendant did not require any preliminary proof to be made of petitioner's corporate capacity, and of its right to condemn lands for public uses.
It is insisted there was no proof offered on the allegation that the petitioner was unable to agree with the owner as to compensation to be paid for the land sought to be taken. Without conceding it is necessary to make such proof, that fact, alleged in the petition, is very apparent. It is true, no direct testimony was offered; but the fact that...
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