Imágenes de páginas
PDF
EPUB

filed on May 26, 1913, six additional objections in this cause, setting up, among other things, that the drainage district had not settled all damages for its right of way with the owners of land affected by the proposed improvement; that said railroad company was the owner in fee simple of its right of way where it crossed Post creek; that said drainage district had filed a petition for mandamus, as stated above, and that the circuit court had held, in sustaining the demurrer to said petition, that the railroad company was under no legal obligation to remove its railroad from across said Post creek until it had been paid just compensation, as required by law, for its property taken and damaged. On motion of appellee these objections were stricken from the files. Thereafter, on May 27, 1913, appellant filed a cross-petition setting out the notice of March 13, 1913, received from the commissioners of the drainage district, further giving the history of the mandamus proceedings in the trial court, and stating that a compliance by appellant with said notice would necessitate the tearing out of said trestle bridge over Post creek and the putting in of a new girder bridge at an expense of $30,000; that in addition to the property of appellant which the commissioners proposed to take in accordance with their then plans for the construction of said ditch in Post creek, other property of appellant would be damaged by the construction of said ditch, and that no steps had been taken by the commissioners to secure said right of way or to ascertain said damages, and appellant prayed that just compensation should be ascertained and awarded to it, as required by law, before its property was allowed to be taken and damaged. On motion of appellee this crosspetition was stricken from the files. Thereafter a jury was empaneled and this cause heard on the question of benefits to appellant's right of way by reason of the proposed improvement. Appellant objected to the introduction of the assessment roll in evidence because it recited that the drain

age commissioners had settled all questions of damages. This objection was overruled and exception taken. No evidence was admitted by the trial court on the question of damages. The only question submitted to the jury under the rulings of the court was that of benefits to the property of appellant. Whether the question of damages to appellant's right of way by the proposed enlargement of Post creek should have been submitted to the jury is the principal question argued in the briefs.

Counsel for appellant contend that the building of the ditch or cut-off in Post creek, as required by the plans of the drainage district, would cause the natural flow of Post creek to be reversed, so that it would become an outlet of Cache river instead of being a tributary, as it was naturally, and thus compel the appellant railroad company to enlarge its opening under its bridge over said Post creek. If the appellant is right in this contention, under the holding of this court in the mandamus case (People v. Chicago and Eastern Illinois Railroad Co. supra,) the railroad company was entitled to have the question of damages to its property submitted to the jury in this proceeding. (Morgan Creek Drainage District v. Hawley, 255 Ill. 34.) If appellee has not acquired the necessary right of way across appellant's land it can be procured in this proceeding under the provisions of the Levee act, especially sections 17, 17α and 176. The damages, if any, to appellant should necessarily be taken into account by the jury in assessing the question of benefits, in determining whether the damages exceeded all the benefits to the property. Counsel for appellee contend that the railroad company waived its right to have this question heard, because it did not raise it on the former hearing. Obviously, from what has already been stated, neither party to this proceeding understood, on the first hearing in the county court, that the plans of the drainage district would require this change in appellant's bridge over Post creek. Appellant's claim that its first knowledge

of such requirement was said notice received March 13 seems to be borne out by the record. While a party cannot take advantage of an error on the former record, (Morgan Creek Drainage District v. Hawley, supra,) yet as this question has arisen since the former trial the court should have permitted this question of damages to be submitted to the jury.

The question of damages for property actually taken for the proposed improvement could be properly raised in a proceeding of this kind by written or printed objections in the court. While the Levee act itself does not specifically state that written or printed objections may be filed, it does state that objections shall be heard. So far as we are advised, it has always been the practice to file objections in this class of cases. (Iroquois Drainage District v. Harroun, 222 Ill. 489; Vandalia Drainage District v. Hutchins, 252 id. 259.) This is the proper practice as to objections to the assessment for benefits, and we see no reason why, when property is taken for an improvement, the question of damages as to property not taken cannot be raised by objections filed. Section 17a of the Levee act provides that the jury to hear the question of damages and benefits shall be selected under the provisions of the Eminent Domain act. This court has held that no answer or bill is necessary where the petition in a condemnation under said Eminent Domain act properly sets out the land to be taken. Where the land owner's interests are not accurately or fully stated in the petition he is under said act entitled to file a crosspetition. (Johnson v. Freeport and Mississippi River Railway Co. 111 Ill. 413.) So in this proceeding, if the petition does not fully set out the property to be taken for which there has been no settlement, or property is damaged which is not taken, such questions may be raised by a crosspetition or objections. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Polecat Drainage Dist. 213 Ill. 83.)

The trial court erred in striking the additional objections and the cross-petition from the files.

The important question here on this hearing, however, is not one of pleading but as to the right of appellant to be heard before the jury on the question of damages for land taken or to property not taken, by reason of the increased flow of water, if any, under its right of way on account of the proposed improvement. The public have an easement in the channel of Post creek, and appellant must keep the channel under said bridge of such size as to offer a passage for all waters that naturally flow, or have a tendency to flow, in and along such water-course. This is a continuing and expanding obligation. This channel must be kept unobstructed, so as to serve as an outlet for all waters that naturally flow through said channel, even if such flow is accelerated by artificial means, in order to meet the reasonable requirements of property owners and the public as changed conditions and increased use may demand. (Chicago, Burlington and Quincy Railway Co. v. People, 212 Ill. 103; Gould on Waters,-3d ed.-sec. 274; Strange v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 245 Ill. 246; Ramey v. Baltimore and Ohio Southwestern Railroad Co. 235 id. 502.) But this does not mean if the current of the stream is artificially reversed and the flow thus increased or accelerated that the channel must be correspondingly enlarged by appellant without compensation for land taken or damaged. If the proposed change in the channel under this bridge will increase the burdens imposed by law upon the appellant railroad, then that will be the taking or damaging of its property for public use, and compensation must be made therefor. Bradbury v. Vandalia Drainage District, 236 Ill. 36; People v. Chicago and Eastern Illinois Railroad Co. supra.

As this cause must be reversed for the reasons already stated, we need not discuss the questions argued in the

briefs as to whether the evidence sustained the verdict on the question of benefits.

The judgment of the county court will be reversed and the cause remanded.

Reversed and remanded.

THE ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, vs. F. H. ROSKEMMER et al. Appellees.

Opinion filed June 16, 1914.

1. EMINENT DOMAIN-question of title should be tried by the court before jury is empaneled. In a condemnation case the question of the title to the land is preliminary to the question of damages and should ordinarily be determined by the court before the jury is empaneled, as the only question for the jury is the matter of compensation to the owner of the property sought to be taken or damaged.

2. SAME-damages to land not taken are limited to such as are reasonable and probable.. The assessment of damages to land not actually taken for right of way should be confined to such damages as are reasonable and probable; and this does not include danger of crossing the railroad with teams or danger to members of the family of the owner of the land.

3. SAME the asking price of land in vicinity is not admissible. While actual, voluntary sales of similar land in the vicinity of that condemned may be proved upon the question of compensation and bona fide offers may be proved if there are no sales, yet it is not proper to admit in evidence the asking price of land in the vicinity.

4. SAME-general rule as to damages to land not taken. The damages which may be allowed for land not taken must be direct and proximate and not possible, only, and nothing should be allowed for imaginative or speculative damages or those which are remote and inappreciable.

5. SAME what are not proper elements of damage. The danger to the owner of the land or his stock of getting run over by trains and killed is not a proper element of damage to land not taken for the railroad right of way; nor is it proper to show that the view of a public highway from the owner's house will be obstructed by the building of the railroad embankment, except where the proof is restricted to the particular tract of land upon which the house is located.

« AnteriorContinuar »