Columbia Theatre Amusement Co. v. Adsit

Mr. Justice Hand delivered the opinion of the court: * It is first contended the Appellate Court erred in declining to take into consideration the effect of the lease upon the value of the fee in determining the value of said demised premises under the terms of the lease on May 1,1901. In the case of Springer v. Borden, 210 Ill. 518, this court had under consideration the precise question here presented for decision. The terms of the lease in that case were identical with the terms of the lease in this case as to the basis for fixing the amount of rent which should be paid for the demised premises, and it was there held that the effect of the lease on the value of the fee, if any, should not be taken into consideration in fixing the value of the demised premises under the lease, but that the premises should be treated as vacant property, with a clear title in fee simple. The principle there announced is controlling here and must govern the decision of this case. The Appellate Court did not, therefore, err in declining to take into consideration the effect of the lease upon the value of the fee simple title in fixing the value on May 1, 1901, of the demised premises under the lease. It is next contended that the trial court erred in admitting proof of sales of other similar property. In the manner in which this record is framed the question of the competency of said testimony is not raised. The appellant in this case was the appellee in the Appellate Court, and it failed in that court, by assignment of cross-errors, to question the admissibility of the testimony of which it now complains. The objection now made therefore comes too late, as the appellant cannot, in that state of the record, raise an objection to the admissibility of testimony in this court for the first time. The appellant has assigned as error that the Appellate Court erred in fixing the value of the demised premises, exclusive of the buildings thereon on May 1, 1901, at the sum of $4310.36 per front foot, and the appellees have assigned as cross-errors that the Appellate Court erred in not fixing the value of said premises, exclusive of the buildings thereon on May 1, 1901, at $5000 per front foot. The chancellor who entered the decree in this case saw and heard the witnesses who testified for the respective parties. The testimony of the several witnesses was conflicting and covered a wide range, as testimony usually does in similar cases, and he was in much better position than this or any other appellate tribunal to judge of the weight that should be given to the testimony of the respective witnesses. We have read the evidence as it appears in the record, and are unable to demonstrate that the amount of $4000 per front foot fixed by the chancellor as the value of said demised premises, exclusive of the buildings thereon, and disregarding the lease and its effect upon the value of the demised premises, was not on May 1, 1901, their true value. The rule in chancery practice in this State is too firmly established to be now shaken or overturned, that when the chancellor sees the witnesses and hears them testify, and their evidence is conflicting, the decree entered by him will not be disturbed upon a question of fact by an appellate tribunal unless it appears that the findings of facts are clearly and palpably wrong. Patterson v. Scott, 142 Ill. 138; Fabrice v. Von der Brelie, 190 id. 460; Greensfelder v. Corbett, id. 565; Arnold v. Northwestern Telephone Co. 199 id. 201. The judgment of the Appellate Court and the decree of the circuit court will be reversed and the cause remanded to the circuit court, with directions to that court to enter a decree fixing the value of the demised premises, exclusive of the buildings thereon, on May 1, 1901, at $4000 per front foot, as the basis upon which rent is to be paid, at five per cent per annum, upon the demised premises for the ten years succeeding May 1, 1901. Reversed and remanded, with directions.