Hartshorn v. Illinois Valley Railway Co.

Mr. Justice Wilkin delivered the opinion of the court: It is first insisted that the court erred in the admission and exclusion of evidence. The witnesses introduced by appellee to prove the valúe of the land actually taken testified that the best use to which the land, in its then condition, was adapted was for railroad purposes, and gave their value accordingly. It is claimed by appellants that the land was best adapted to manufacturing purposes and was of no value to appellants for railroad purposes, and hence the admission of. this evidence, taken in connection with the twenty-second instruction given on behalf of appellee, was, in effect, telling the jury that if they believed, from the evidence, that this fifty-foot strip, with the improvements thereon, was best adapted to railroad purposes they should so find, notwithstanding such value might be much less than for manufacturing purposes. Prior to the condemnation proceedings the land had never been used for manufacturing purposes, but for agricultural and pasture purposes. The petition for condemnation was filed on July 26, 1904. The strip sought to be taken was at that time in the possession of appellee by virtue of the sale to it by the Illinois Valley Traction Company, which had constructed and placed in operation its line of railway over the strip, and hence at that time the strip was being used for railroad purposes. Under the law, appellants were entitled to the highest fair cash market value of the land actually taken, for the best use to which it was adapted. (West Chicago Street Railroad Co. v. City of Chicago, 172 Ill. 198.) Its best use was to be ascertained from the evidence. The appellants had the right to show the value of the land for the best use to which they thought it was adapted and the appellee to show the best use to which it thought the premises were adapted. The jury were entitled to inspect the land and form their judgment from such inspection, and from all the evidence offered determine what was the best use to which the land was adapted, and what was its fair cash market value for that use. (Phillips v. Town of Scales Mound, 195 Ill. 353; Ligare v. Chicago Madison and Northern Railroad Co. 166 id. 249; Rock Island and Peoria Railroad Co. v. Leisy Brewing Co. 174 id. 547.) It was not the duty of appellee to call upon appellants and ask them to state the use to which they thought their lands best adapted, but it was the privilege of appellee to produce such proper testimony with reference to that use, and the price thereof, as it saw fit. Appellee claimed the land was best adapted, in its then condition, for railroad purposes, and appellants claimed it was best adapted for manufacturing purposes. Evidence in support of both of these conditions was admitted and was competent. It is next contended that the court erred in the admission of evidence as to the amount of benefit or damage to the lands not taken. It is claimed that certain witnesses were permitted to testify from experience in the coal mining business, or from experience as president' of a cement company, or from experience in handling men, or from knowledge of the location of the ground, whether the building of the road would be a benefit or an injury to the factory site, and they testified that it was a benefit, but they could not estimate that benefit in dollars and cents. It is insisted that the proper rule as to benefits or damages to land not taken is the difference in the fair cash market value of the land before and after the taking, and that the evidence complained of was not based upon that value, but upon other facts and circumstances. There can be no doubt that the rule as to the benefits or damages to land not taken is as above claimed by appellants. (City of Chicago v. Lonergan, 196 Ill. 518; Illinois, Iowa and Minnesota Railway Co. v. Easterbrook, 211 id. 624.) We think, from a careful examination of the evidence and the instructions of the court given upon both sides, that this was the rule adopted by the court. No less than eleven instructions were given on either side stating the measure of damages to be the difference between the actual fair cash market value of thé land as it was before the construction of said railroad, and its actual fair cash market value after the construction of said railroad. Appellants assert that the remaining lands are especially adapted for factory sites. They are located at a distance from any populous center. The question of securing proper freight accommodations and transportation for employees would certainly be of importance in case factories were located thereon. At the time the case was tried a line of electric railroad was operated over the land, and was clearly an element to be taken into consideration in the estimation of damages or benefits. The evidence complained of was based upon this fact, and we think it was proper for the consideration of the jury. It is next insisted that the court improperly admitted in evidence the plat of Hartshorn’s subdivision of lands located near the right of way. On the same day the petition for the condemnation was filed appellant Hartshorn filed in the office of the recorder of deeds of LaSalle county a plat of his subdivision of a part of section 13. The petition for condemnation stated that said Hartshorn was the owner of the land subdivided. Hartshorn filed his cross-petition, in which he admitted that he was the owner of the land subdivided and prayed for the assessment of damages to all lands therein described, thereby including the land subdivided. After Harts-horn had testified to being the owner of this land in section 13, upon cross-examination he was asked if he had not subdivided a part of it. Objection was made to this question, which was overruled by the court, and the plat of the subdivision was offered in evidence, together with certain deeds of conveyance of lands in the subdivision as platted. Thereupon Hartshorn asked permission to amend his cross-petition by eliminating the lands subdivided, and thereby releasing any claim for damages to that land. The court granted the motion, and thereupon the appellee amended its petition by alleging that the land subdivided was one compact, entire tract and used by the owner thereof as an entire tract for agricultural purposes, together with other lands for which damages were sought. It is insisted by appellants that as the original cross-petition claimed no damages to any lands in section 13 except those containing Portland cement rock, and as the amendment to the cross-petition was filed for the purpose of doing away with any possible doubt upon that question, the admission of the plat in evidence was error. It appears from the evidence that all of the land surrounding this proposed right of way was contiguous and used by Hartshorn for agricultural purposes. The lots were subdivided and the plat filed for record on the same day the petition for condemnation was filed. While it is claimed that the lots were platted with the expectation that this interurban track would be removed, we cannot see how that can be true. The subdivision shows the railroad track. The lots were located some distance from any populous center, in an agricultural district. They could only be bought and sold with the expectation that they would be along the car track, so purchasers might easily get to and from their homes, and would thereby be increased in value and benefited by the condemnation. For this reason evidence of the subdivision was properly admitted. The appellants contend that the taking of the fifty feet in question would deprive them of switch-track connections with the Rock Island railroad, and in support of this contention offered evidence showing that when the sand company was contemplating the purchase of the land from Hartshorn, one condition upon which that purchase, was made was the acquirement of switch-track connections with the Rock Island railroad. Accordingly, the officials of the sand company interviewed the officials of the Rock Island railroad for the purpose of making an agreement in regard to the switch. It was claimed by the Rock Island officials that on account of the tunnel it would be too dangerous to connect a switch with the main line at a distance of less than three thousand feet west of the tunnel, and that no part of this three thousand feet could be on the right of way of the railroad. A letter containing this statement was offered in evidence by appellants. In rebuttal of this letter the court permitted appellee to introduce evidence showing that fifteen years prior a switch track had been placed on the right of way of the Rock Island company, connecting with the main line seventeen hundred and sixty-two feet west of the tunnel, for the purpose of shipping clay from the land now owned by the sand company. It is insisted by appellant that the admission of this evidence was error. The question at issue was whether or not appellants would be damaged by building the road by reason of being deprived of switching facilities. The written refusal of the railroad company to build the switch not less than three thousand feet was offered to show that appellants would be specially damaged. In rebuttal of this evidence» appellee offered evidence to show that just such a switch had been in that particular place fifteen years before and could be put there again. This evidence was proper to be considered by the jury in determining the amount of appellants’ damages in this respect. The petition in this case was presented in vacation to Judge Charles Blanchard, who made an endorsement thereon as to the date of the return of summons. The summons was issued, and also a venire for the jury. When the case came on to be heard Judge Blanchard was ill, and Judge Richard M. Skinner, of the same circuit, presided. Appellants challenged the whole array of jurors on the ground of certain alleged incompetency. The challenge was sustained and the jurors discharged. Thereupon Judge Skinner designated by name twelve men to act as jurors, and appellants challenged this array on the ground, first, that the petition had been presented to Judge Blanchard and Judge Skinner was without authority to issue the new venire; second,- the petition not- having been presented to Judge Skinner he was without authority to order the venire; third, the law did not authorize the judge to designate the persons for whom a venire should issue. This challenge was overruled, and the ruling is assigned as error. It is claimed that it is the well established rule that when the power of eminent domain is sought to be exercised and the property of the individual taken against his will, such proceedings must strictly comply with the provisions of the statute, and the presentation of the petition in vacation and the summons of the jury must also be in strict compliance with the statute, and that Judge Skinner had no authority to call a new venire of jurors, and that no such power existed under the Eminent Domain act. Section 3 of the Eminent Domain act (Hurd’s Stat. 1903, chap. 47, p. 909,) provides: “If such petition be presented to a judge in vacation the judge shall note thereon the day of presentation, and shall also note thereon the day when he will hear the same, and shall order the issuance of summons to each resident defendant, and the publication,” etc. Section 6 of the same act provides that it shall be the duty of the court, at the time of the issuing of summons or making publication, to write the names of sixty-four disinterested freeholders on separate slips of paper, and in the presence of two disinterested freeholders select twelve persons to serve as jurors. Section 7 of the same act provides that if the panel be not full, by reason of non-attendance or be exhausted by challenges, the judge hearing such petition shall designate by name the necessary number of persons of proper qualifications to serve as jurors. In the case of Bowman v. Venice and Carondelet Railway Co. 102 Ill. 459, in passing upon this statute, we held that courts are political agents established under the constitution, and in contemplation of law have separate existence distinct from the judges who preside over them; that a judge has no judicial power outside of the court in which he officiates, and when discharging the functions of his office he is the court in concrete form, and in this sense is often called the court, but, strictly and technically speaking", the judge and court are wholly distinct; that a condemnation proceeding can only be instituted and conducted in the circuit court or the county court, and whether instituted in vacation or term time it is equally a proceeding in court. To the same effect are many other decisions of this court. (Hercules Iron Works v. Elgin, Joliet and Eastern Railway Co. 141 Ill. 491; St. Louis and Cairo Railway Co. v. Postal Telegraph Co. 173 id. 508.) In the latter case we said (p. 514) : “While it is true that the act makes use, in several of its sections, of the expression ‘judge or court,’ yet it was not the intention of the act to provide two tribunals for the hearing of condemnation cases,—one the judge, as an individual, and the other the court, as a judicial tribunal. The judge cannot exercise judicial power except when sitting as a court, and not as an individual. Whether the proceeding be in vacation or term time, it is a proceeding in court.” The petition was first presented to Judge Blanchard. On account of sickness he was unable to preside at the trial and Judge Skinner was called. The acts of both were not in their individual capacity as men or as judges, but were the acts of the circuit court. Upon the challenge to the array being sustained it placed the proceeding in substantially the same position as if no venire had been issued, and the proper practice would have been to issue a new venire in the same manner as the first pne had been issued. But even i'f this were not true, we do not see that appellants have any cause for complaint, as no attempt has been made to show any injury from the court’s action. The appellants do not claim that the jury before whom the case was tried were prejudiced against them, or that they were not fair-minded men and of sufficient intelligence to faithfully and intelligently discharge their duty as jurors, but, on the other hand, the jury seem to have been satisfactory to them, as they exhausted only one-half of their peremptory challenges in- their selection. We have frequently held that the judgment of the court below will not be reversed because a challenge to the array was overruled unless it appears that some substantial right was thereby impaired. Siebert v. People, 143 Ill. 571; Henry v. People, 198 id. 162; Wistrand v. People, 213 id. 72. Complaint is next made of the twenty-second and twenty-ninth instructions given by the court on behalf of appellee. Both of these instructions lay down the rule for the assessment of damages and benefits, and, taken in connection with all of the other instructions, we think the jury were fully informed as to the measure of damages and appellants were not injured thereby. It is next insisted that the damages awarded by the jury were grossly inadequate. It was contended by appellants that the lands taken were particularly adapted for manufacturing purposes, and their measure of damages was based upon this fact. The evidence shows that the lands had never been used for manufacturing purposes but had always been used for agricultural purposes. Evidence was also offered by appellee that the best use to which the land could be put in its then condition was for railroad purposes. The amount of damage for these different purposes must necessarily vary considerably. In a prior condemnation case the jury found that the total damage was $526; in this case the jury found that the damages were $3400. It was a question for the determination of the jury, and'we cannot see from the evidence that the jury so far made a mistake as to reverse the case, but, on the contrary, we are of the opinion that the damages given are substantially in accordance with the weight of the evidence. There are several other grounds of objection urged by appellants, but upon a consideration of the whole case we find no reversible error, and the judgment of the circuit court will be affirmed. Judgment affirmed.