West Skokie Drainage Dist. v. Dawson

• Decision Date: 22 December 1909
• Citation: 243 Ill. 175,90 N.E. 377
• Parties: WEST SKOKIE DRAINAGE DIST. v. DAWSON et al.
• Court: Illinois Supreme Court

243 Ill. 175

90 N.E. 377

WEST SKOKIE DRAINAGE DIST.

v.DAWSON et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Lake County Court; De Witt L. Jones, Judge.

Condemnation proceedings by the West Skokie Drainage District to condemn a right of way over lands belonging to John M. Dawson and others. From a judgment awarding defendants $222.25 for the land taken and assessing no damages to the remainder, they appeal. Reversed and remanded.E. V. Orvis, for appellants.

Paul MacGuffin and Orvis & Beaubien, for appellees.

PER CURIAM.

This is a proceeding brought by the West Skokie Drainage District to condemn a right of way for a ditch across certain lands of appellants. The drainagedistrict was organized under the Levee Act (Hurd's Rev. St. 1908, p. 817, c. 42, §§ 1-74 1/2 b). The petition sets up that the authorities of the drainage district were unable to agree with the owners as to the value of the land, and therefore, in accordance with section 17 of said Levee Act, this petition was filed to condemn, in accordance with and under the provisions of the Eminent Domain Act (Hurd's Rev. St. 1908, c. 47). The strip of land sought to be condemned across appellants' land was 100 feet wide and contained 6 3/5 acres. The ditch was to be 20 feet wide at the top, 6 feet wide at the bottom and 6 feet deep, with sloping sides. Appellants filed a cross-petition, setting forth that they were the owners of 120 acres of land through which the proposed ditch was to be constructed, and that the ditch would divide said property into two pieces, so that a bridge would have to be built across the ditch and fences built on each side of the ditch for the proper use and enjoyment of said 120 acres; that such land was suitable for hay, pasture, and plough land, and for sale for a country home. After issues were joined a jury was impaneled, which heard evidence and viewed the property, returning a verdict of $222.25 for the land taken and no damages to the remainder. Judgment was entered on this verdict and an appeal taken to this court.

It is first insisted that there is no testimony in the record showing that any effort had been made to make a settlement with appellants before filing the petition. When the landowner appears and consents to the selection of the jury and contests the case on the merits, he will waive the question as to failure of the petitioners to agree with him on the value of the property. Lieberman v. Chicago Rapid Transit Railroad Co., 141 Ill. 140, 30 N. E. 544;Gillette v. Aurora Railways Co., 228 Ill. 261, 81 N. E. 1005.

Before hearing any evidence the trial judge announced that he would ‘limit the number of witnesses to five on a side.’ The record does not show that appellants consented or objected to this statement at that time, neither does it disclose whether the court meant the limitation to apply to expert witnesses only, or to the witnesses who testified as to the facts. Six witnesses testified for petitioner, one of them being the engineer who made the survey. All of them, except the engineer, testified as to their opinion of the value of the land taken and as to the damages to the remainder. The engineer gave his opinion as to the size and character of the ditch required at that point for a drainage district. After five witnesses had been called for appellants, who testified as to the value of the land taken and the damages to the remainder, counsel for appellants called another witness, and the trial judge announced that he had limited the witnesses to five, and that appellants could not call any more. Counsel for appellants said he did not agree to that limitation, and that the engineer had been called by petitioner as an opinion witness also. He also stated that he wanted to rebut certain facts sworn to by petitioner's witnesses, especially a statement as to a sale testified to by petitioner's witness Miller on cross-examination. This witness testified that he based his judgment as to the value of the land on sales in the vicinity. He was then asked, ‘Do you base it on the Culver sales?’ and answered, ‘No, sir; I base it on the Mines sale-the forty acres north of this-at $10 an acre.’ A motion was made to strike out the answer as not responsive. This was denied. The witness was then asked if he did not know the Mines land was incumbered with a mortgage for $1,200, and the witness' answer was, ‘I know nothing of the kind.’ He was then asked if he did not know that there was a question about the title to the Mines land. An objection was made and sustained to this question. When the matter arose, during the taking of appellants' testimony, as to the limitation of the witnesses, counsel stated that he wanted to prove that the Mines land, testified to by witness Miller, was sold at foreclosure sale under a second mortgage, a forced sale and also subject to an outstanding first mortgage, and that no title was transferred by the proceedings under which the sale was made. The trial court refused to allow him to call witnesses to make such proof, and exception was duly taken to the ruling.

The question of limiting the number of witnesses in the trial of a case has been discussed at various times by this court. In Gray v. St. John, 35 Ill. 222, 238, we said: ‘Courts have the right to limit the number of witnesses to be examined and the number of depositions to be read to prove a particular fact. When a fact is sufficiently established and is not controverted, the courty may properly refuse to suffer its time to be occupied in hearing further evidence on that point.’ In Union Nat. Bank v. Baldenwick, 45 Ill. 375, 378, it is stated: ‘Nor is a party restricted to the proof of a fact by one witness. If the fact is not controverted, it is no doubt in the discretion of the court to limit the number of witnesses to prove it; but when the truth of the fact is contested it is otherwise.’ In White v. Hermann, 51 Ill. 243, 246 (99 Am. Dec. 543) this court said: ‘It is also urged that the court erred in refusing to permit appellants to call more than four witnesses to prove the value of this property. It may be that on a mere collateral question the court may have a discretionary power to limit the number of witnesses who may testify on that particular question. We are aware of no rule of practice, however, which authorizes a court to prevent a party from introducing more than four witnesses to prove the issue in the case. It is true, the statute has provided that the costs of four witnesses, only, shall be taxed against the unsuccessful party unless the court shall certify that a greater number were necessary, but this in nowise prevents a party from introducing more if he is willing to risk the liability to pay their fees for attendance.’ In Mueller v. Rebhan, 94 Ill. 142, it was held that after the examination of a great number of witnesses as to certain facts which are conceded by the opposite party there is no error in refusing to hear other witnesses to prove the same facts. To the same effect as this last case are Lake Shore & Michigan Southern Railroad Co. v. Brown, 123 Ill. 162, 14 N. E. 197,5 Am. St. Rep. 510, and Stern v. Smith & Co., 225 Ill. 430, 80 N. E. 307,116 Am. St. Rep. 151. In Green v. Phoenix Mutual Life Ins. Co., 134 Ill. 310, 315, 316, 25 N. E. 583.10 L. R. A. 576, this court said: ‘The trial court must, of necessity, exercise discretion as to the number of witnesses to prove a given fact that is not disputed, or that is merely collateral to the main issue, depending very much upon the nature and subject-matter of the inquiry.’ And: ‘The court may undoubtedly limit the number of witnesses called as experts, and in some cases for the purposes of impeachment. * * * It should, however, be understood that in such cases the exercise of the discretion must be reasonable. The court may not arbitrarily determine the number of witnesses that may testify in such cases'-citing authorities. In a special assessment matter (Burhans v. Village of Norwood Park, 138 Ill. 147, 152, 27 N. E. 1088, 1090) this court said: ‘In general, it is held to be within the discretion of the trial court to limit the number of witnesses on the different questions involved in cases like the present. Lewis on Eminent Domain, § 434, and authorities there cited. But the discretion must be reasonably exercised, so as to deprive the parties of no material rights, and an abuse of it in this respect will be reversible error. Green v. Phoenix Mutual Life Ins. Co., 134 Ill. 310 [25 N. E. 583,10 L. R. A. 576].’ See, also, as bearing on this question, 1 Wharton on Evidence (3d Ed.) § 505; 3 Jones on the Law of Evidence, § 814; Bissell v. Cornell, 24 Wend. (N. Y. 354; St. Louis, M. & S. E. Railroad Co. v. Aubuchon, 199 No. 352, 97 S. W. 867,9 L. R. A. (N. S.) 426, 116 Am. St....