jurisdiction to determine the claim for an assessment of damages on the dissolution of the injunction, awarded by the circuit court. The basis of this contention is that an appeal was taken to the Appellate Court from the order granting the injunction; that such appeal removed the cause from the circuit to the Appellate Court; that, when the Appellate Court reversed the order granting the injunction, and dissolved the injunction, a mandate should have been filed in the circuit court before any proceedings were taken to assess damages; but no mandate was filed. Section 83 of the practice act provides that, "when any cause or proceeding either at law or in chancery is remanded by the Supreme Court or Appellate Court, as the case may be, for a new trial or hearing by the court, in which such cause was originally tried, the Supreme Court, or Appellate Court, as the case may be, shall issue its mandate, reversing and remanding such cause directly to such trial court; and, upon a transcript of the order of the Supreme Court, or Appellate Court, as the case may be, remanding the same being filed in the court, in which such cause was originally tried, and not less than ten days' notice thereof being given to the adverse party or his attorney, the cause or proceeding shall be reinstated therein." 3 Starr & C. Ann. St. 1896 (2d Ed.) p. 3111, c. 110. Section 83 applies to a case where a final judgment has been rendered, and has no application to such a case as the one at bar. When the appeal is from a final judgment, the case is taken out of the circuit court, and removed to the reviewing court, and is no longer on the docket of the circuit court; but the present appeal is from an interlocutory order granting an injunction. The statute that provides for an appeal to the Appellate Court from an order granting an injunction contains the following provision: "The force and effect of such interlocutory order or decree, and the proceedings in the court below, shall not be stayed during the pendency of such appeal. * * Upon filing of the record in the Appellate Court the same shall there be at once docketed and shall be ready for hearing under the rules of said court, taking precedence of other causes in said court; upon such appeal the Appellate Court may affirm, modify or reverse such interlocutory order or decree, and shall direct such proceedings to be had in the court below as the justice of the case may require." 3 Starr & C. Ann. St. 1896 (2d Ed.) p. 3171, c. 110. It thus appears that the appeal from the interlocutory order granting the injunction did not remove the case from the circuit to the Appellate Court; but the case still remained on the docket of the circuit court, and therefore there was no occasion for any proceedings to redocket or reinstate it.

It is also claimed by the appellant that damages can only be assessed where the injunction is dissolved by a court of chancery,

and that, as the circuit court here did not dissolve the injunction, but the same was dissolved by the Appellate Court, damages could not be assessed by the circuit court. Section 12 of the injunction act provides as follows: "In all cases where an injunc tion is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction," etc. 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 2146, c. 69. The statute, providing for an appeal from an interlocutory order granting an injunction, authorizes the Appellate Court to dissolve the injunction; but it was never the intention of the Legislature that the Appellate Court, which is a reviewing court, should take testimony for the purpose of assessing damages upon the dissolution of an injunction. When the Appellate Court dissolves the injunction, it is the duty of the circuit court to hear evidence and assess the damages. It is a narrow construction of section 12 of the injunction act to say that it is only the Appellate Court which can assess the damages after dissolving the injunction. The case stands in precisely the same situation, after the reversal by the Appellate Court of the order granting the injunction, as if the circuit court had itself dissolved the injunction. As the case still remains in the circuit court, notwithstanding the appeal to the Appellate Court, the order of reversal entered by the Appellate Court merely has the effect of wiping out the order granting the injunction, and the assessment of damages by the circuit court is not inconsistent with the express language of the statute. Chicago Dock & Canal Co. v. Garrity, 115 III. 155, 3 N. E. 448; Bolling v. Tate, 65 Ala. 417, 39 Am. Rep. 5; Garrity & Dreyer v. Chicago & Northwestern Railway Co., 22 Ill. App. 404. Nor do we see any reason why, in determining the amount of damages to be assessed, the services of counsel in the Appellate Court upon the appeal from the order granting the injunction cannot be taken into consideration. The amount assessed, $415, is shown by the testimony to be a reasonable fee for the services of counsel in moving to dissolve the injunetion in the circuit court, and attending before the master upon the reference of the motion to dissolve, and following the case to the Appellate Court, where the order granting the injunction was finally reversed. The record shows the making of an abstract for the Appellate Court, the argument of the case before the Appellate Court resulting in an affirmance of the judgment below by the Appellate Court, the filing of a petition for rehearing in the Appellate Court, the granting of the rehearing by that court, and, after the

granting of the rehearing, a reversal, as above stated. The weight of the evidence is in favor of a fee of at least $600, but only the sum of $415 was awarded. We think the evidence sustains the action of the court in assessing the damages at this amount.

It is said by counsel that the assessment of damages was premature, and that the court should not have assessed the damages until the final hearing of the cause. The decree or order of the court, entered in March, 1904, shows that there was a final hearing of the cause, because the court dismissed the bill upon demurrer, and at the same time assessed the damages arising from the granting of the injunction. The injunction here was dissolved on the face of the bill, and not upon the coming in of an answer raising a question of fact. When an injunction is the only relief sought, and it is dissolved on motion upon the bill alone, which operates as a demurrer for want of equity, and admits all the facts alleged, the order of dissolution is a final disposition of the case, and the formal dismissal of the bill may regularly follow, but not otherwise. Martin v. Jamison, 39 Ill. App. 248; Gillett v. Booth, 6 Ill. App. 423.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

(219 Ill. 454)

HULL v. SANGAMON RIVER DRAINAGE

DIST.

(Supreme Court of Illinois. Feb. 21, 1906.) 1. DRAINS-PETITIONS FOR CONSTRUCTIONPARTIES ENTITLED TO PETITION.

A deed placed in escrow, to be delivered on payment of the purchase price, conveys no title until the conditions for its delivery are performed, and until that time the grantor is the owner of the land, within the meaning of 2 Starr & C. Ann. St. 1896, p. 1500, c. 42, par. 29, authorizing the organization of a drainage district on petition of a majority of the "owners" of lands within the district proposed to be organized.

2. SAME.

Where a wife died before her husband, and her husband on his death devised his land to his son for life, with remainder in fee to the son's children who should survive him, and the son had six children, of whom four were adults and two were minors, a signature by the son and his four adult children of a petition for the organization of a drainage district was properly counted in computing the number of signers of the petition, under 2 Starr & C. Ann. St. 1896, p. 1501, c. 42, par. 30, requiring such signers to constitute a majority of the adult owners of land within the district.

3. SAME-ORGANIZATION OF DISTRICT-ACTS OF COMMISSONERS-ENLARGEMENT OF DISTRICT.

Under 2 Starr & C. Ann. St. 1896, p. 1506, c. 42, par. 40, authorizing commissioners for the organization of a drainage district to alter the boundaries of the district by extending or contracting them so as to include lands which will be benefited and exclude lands that will not be benefited, provided the alteration shall not so enlarge or contract the district that the petition. ers will cease to constitute a majority of the landowners, or to represent one-third of the af

fected area, it was not error for the commissioners to enlarge the proposed district by including a part only of the lands that would be benefited, where its enlargement so as to inIclude all such lands would result in the petitioners no longer constituting a majority of adult landowners representing one-third of the affected area.

4. JURY-RIGHT TO JURY TRIAL-DRAINAGE PROCEEDINGS.

The provisions of Drainage Act (2 Starr & C. Ann. St. 1896, p. 1508, c. 42) par. 44, for the assessment of damages by a jury or by commissioners, are unconstitutional and void, in that the landowner has a constitutional right to have the question of damages determined by a jury, and consequently commissioners can make a valid assessment of neither benefits nor damages.

Appeal from McLean County Court; R. A. Russell, Judge.

Proceedings for the organization of the Sangamon River drainage district; M. D. Hull, objector. From orders organizing the district and confirming an assessment of benefits, objector appeals. Reversed.

Rayburn & Buck, for appellant. Wight & Alexander, for appellee.

CARTWRIGHT, C. J. This is an appeal from orders of the county court of McLean county organizing the Sangamon River drainage district, in said county, and confirming an assessment of benefits against appellant's lands by the commissioners of said district. The proceeding was commenced by filing a petition for the organization of the district under what is commonly known as the "Levee Act." 2 Starr & C. Ann. St. 1896, p. 1500, c. 42, par. 29. Commissioners were appointed by the court, and they examined the lands proposed to be drained, and over and upon which the work was proposed to be constructed, and made a report, as required by section 9 of the act (paragraph 37), recommending the organization of the district. Appellant filed objections to the report, and his objections were overruled.

It is first contended that the court erred in overruling the objections and in not dismissing the petition, for the reason that it was not signed by a majority of the adult owners of the land within the district and who represented one-third in area of the lands to be reclaimed or benefited. The petition was signed in the summer of 1903, and the hearing was in the fall of that year, and Mark Banks, one of the signers, was counted by the court as the owner of 160 acres of land. He had previously signed and acknowledged a deed of the land to Harrison Frink and Sheridan J. Frink, and had deposited the deed in the First National Bank of Bloomington, to be delivered on payment of the purchase price on or before February 15, 1904. and in case of such payment he was to deliver possession on or before March 1, 1904. The deed placed in escrow conveyed nothing until the conditions for its delivery were performed on February 15, 1904, when it was delivered to the grantees. Leiter v. Pike, 127 Ill. 287, 20 N. E. 23. The title did not pass

out of Mark Banks until the deed took effect and the grantees became the owner of the land, and he was properly counted as an

owner.

There was an 80-acre tract which had belonged to James R. Cundiff, who had died leaving a widow, Sarah Cundiff, and an only son, Isaac. By his will James R. Cundiff devised said land to his widow for life, and she died before the petition was signed. After her death the land was devised to the son, Isaac Cundiff, for life, with remainder in fee at his death to his children who should be living at that time, and if any child of Isaac should die in his lifetime leaving a child or children, such child or children who might be living at the time of Isaac's death was to have the share that would have gone to the parent. Isaac Cundiff had six children, of whom four were adults and two were minors. He and the adult children signed the petition. We do not care to construe the will in this collateral way, since, in any view of its provisions, the petition was sufficient. Isaac Cundiff, who signed the petition, had a life estate in the land, and was also the only heir at law of the testator, and, if his children had no present estate, the fee after the life estate was in him as heir at law to wait the contingency upon which the remainder was to vest; and if the children had a present estate, the adults who signed the petition represented four-sixths of the remainder combined with the life estate. The petition fulfilled the requirements of the statute.

The commissioners reported that the proposed district did not embrace all the lands that would be benefited, and that a very large area of additional lands, of which they gave the descriptions and names of the owners, would be benefited. They enlarged the district so as to include part of the lands, which would not have the effect of so far enlarging the district that the petitioners would no longer constitute a majority of the adult landowners nor represent less than one-third of its area, but they did not include 4,248 acres which would be benefited by the proposed work, for the reason that there would not be the requisite number of petitioners. Appellant contends that the petitioners had no power to enlarge the district by including a part only of the lands that would be benefited, and that the court had no right to organize a district including less than all the lands that would be so benefited. Section 12 of the act (paragraph 40) authorizes the commissioners to alter the boundaries by extending or contracting them so as to include lands that will be benefited and exclude lands that will not be benefited, provided that the alteration of the boundaries shall not have the effect of so far enlarging or contracting the district that the petitioners will not any longer constitute a majority of the adult landowners of the land therein situated or represent one-third of the area. The change

in the boundary of this district was in accordance with that statute. The proviso to section 12 fixed a limit beyond which the commissioners could not go in enlarging the district, and the court did not err in overruling the objection.

Appellant owned 200 acres of land in the district, and the proposed ditch was to run across his land, so that a part would be actually taken for the ditch. The court directed the commissioners to go upon the lands of the district and make assessments of benefits and damages, or benefits, in the manner provided by law, and to make a report to the court. The commissioners took an oath that they would, to the best of their ability, make assessments of damages and benefits, or benefits, as the case might be, and made a report, accompanied by an assessment roll, in which they assessed against a 40-acre tract of appellant $83.40 and against a tract of 160 acres $551.12 for benefits. The commissioners reported that they had disregarded all damages that would be sustained by the lands, both damages to land that would be taken and damages to land that would not be taken, because they had been advised that they had no right, power, or authority, under the law, to fix damages or award compensation, but that it was their intention, after the assessment of benefits had been confirmed, to begin proceedings under the eminent domain act to condemn the right of way over the lands of owners with whom they could not agree. Appellant objected to the assessment, specifying as the principal ground that the commissioners had no power or authority to make the assessment, but his objections were overruled. The commissioners then sat as a jury by direction of the court, against the objection of the appellant, for the hearing of objections, and rendered a verdict confirming their assessment as made, without modification, amendment, or correction.

It is conceded that the commissioners had no power to assess damages, and they so stated in their report; but is is contended that they could assess benefits to appellant's lands and try the question of compensation and damages before a jury, or, in other words, that they could try the part of a condemnation case involving benefits and have a jury try the other part involving damages, and have two verdicts. The provisions of this drainage act for assessing damages by a jury or commissioners are unconstitutional and void. Michigan Central Railroad Co. V. Spring Creek Drainage District, 215 Ill. 501, 74 N. E. 696. The compensation to be paid for land actually taken and damages to lands not taken can only be determined by a jury. When a jury is impaneled for that purpose, after ascertaining the just compensation for land taken, they can only determine whether there is any damage to the lands not taken, or how much the damage is, by taking into account special benefits to the land. On the question of damages to lands

not taken the jury would be bound to consider the effect of the improvement upon the land, both advantages and disadvantages, and for the purpose of reducing or balancing damages would necessarily take into account any special benefits. That is not assessing benefits to the land, but is merely ascertaining whether there is damage or not. Page v. Chicago, Milwaukee & St. Paul Railway Co., 70 Ill. 324. Where commissioners set down damages and benefits, and carry the balance forward as damages or benefits, the only final conclusion is that there are damages, or are benefits, and the figures only show how the result was arrived at. Manifestly the commissioners cannot supplant a jury in the determination of one of the questions which is necessarily involved in a proceeding under the eminent domain act. If commissioners can make an assessment of benefits to lands a part of which is taken for a public improvement, they can finally and conclusively determine a question which the owner has a constitutional right to have submitted to a

jury.

As to lands no part of which is taken, if the owner makes no claim of damages in excess of benefits the commissioners may assess such benefits, and if a jury in an eminent domain proceeding has found that there were no damages to the remainder of the land, the verdict would not be conclusive that there were no benefits. City of Chicago v. Mecartney, 216 Ill. 377, 75 N. E. 117. In this case the commissioners, under the orders of the court and against the objection of appellant, attempted to determine a question which appellant had a right to have submitted to a jury. The court erred in overruling the objections of appellant to such proceeding.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

3. CHARITIES-CONVEYANCES TO TRUSTEES OF UNINCORPORATED CHURCH SOCIETY-VALIDITY EFFECT.

A conveyance to the trustees of an unincorporated religious congregation is not void for want of a grantee, but is in the nature of a charitable trust, and all the members of the congregation are beneficiaries.

4. RELIGIOUS SOCIETIES-DIVISION INTO FACTIONS-RIGHT TO PROPERTY.

A conveyance was made to the trustees of an unincorporated congregation. The congregation for over 70 years upheld the doctrines which were taught at its inception. One faction continued to uphold such doctrines, while another faction taught and practiced what was known as innovations. Both factions incorporated. Held, that the faction which continued to teach the doctrines originally taught was entitled to the church property.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Religious Societies, § 151.] 5. SAME.

Where each congregation of a denomination has the right to determine for itself what its practices in the matter of conducting worship shall be, the fact that a great majority of the congregations have adopted innovations does not affect the title of the property of a congregation maintaining the practices adopted at its inception, and a faction thereof upholding the innovations cannot hold the property.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Religious Societies, §§ 149-151.] 6. SAME-INCORPORATION-VESTING OF TITLE TO CHURCH PROPERTY.

Property conveyed to the trustees of an unincorporated congregation vests on its incorporation in the corporation.

Error to Circuit Court, Shelby County; Samuel L. Dwight, Judge.

Suit by the Christian Church of Sand Creek and others against the Church of Christ of Sand Creek and others. There was a decree dismissing the bill, and plaintiffs Affirmed. bring error.

Chafee & Chew, for plaintiffs in error. William C. Kelley, Walter C. Headen, and E. A. Richardson, for defendants in error.

HAND, J. This was a bill in chancery, filed by plaintiffs in error in the circuit court of Shelby county against the defendants in error, to obtain a construction of a certain deed bearing date July 18, 1874, from James A. Turrentine and wife to the trustees of the Christian Church of Sand Creek, Shelby county, Ill., and for a decree adjudging the premises described in said deed, and the brick church located thereon, to be the property of the plaintiffs in error. An answer and replication were filed, the cause was tried in open court, and a decree was entered dismissing the bill for want of equity, and a writ of error has been sued out from this court to reverse said decree.

It appears from the pleadings and proofs that in the year 1834 a church was organized at Sand Creek, Shelby county, Ill., by followers of the Rev. Alexander Campbell; that the congregation first erected a log church, in 1851 a frame church, and in 1874 a brick church, in which the congregation worshiped until in the year 1904, when the Sand Creek

congregation divided-about 30 members thereof designating their organization as the "Christian Church of Sand Creek," and the remainder of the congregation, about 100 in number, designating their chura organization as the "Church of Christ of Sand Creek" -and that since the division of the congregation the defendants in error have worshiped in said brick church and the plaintiff in error have worshiped in a schoolhouse near by. From the time of the organization of said congregation, in 1834, up to its division, in 1904, it was called the "Christian Church of Sand Creek" or the "Church of Christ of Sand Creek"; the names "Christian Church" or "Church of Christ" being used by the members of the Sand Creek congregation to designate the congregation that worshiped in said log, frame, or brick church from 1834 to 1904. The members of said congregation were also at times designated as the "Disciples of Christ." The names "Christian Church" and "Church of Christ" seem to have been used synonymously by the members of the Sand Creek congregation; some preferring one name and some the other. After the brick church was erected, in 1874, for a time the words "Christian Church, Erected in 1874," were conspicuously placed above the front door of the church. Those words were removed from above the door, however, several years prior to 1904, and at a time when the church building was undergoing repairs.

The several church organizations formed by the followers of Alexander Campbell-and they are numerous-at the time of their or ganization were, and now are, purely congregational in their government. That is, there is no general conference, synod, presbytery, or other similar body which exercises supervision over said church congregations, but each organization, in matters of practice, in church government and otherwise, is sovereign, and the congregations so organized have no creed except the Bible; the view of the followers of said Alexander Campbell being that, where the Bible speaks, the congregation and its several members are authorized to speak, but where it is silent the congregation and the members thereof should also remain silent. In 1849 there sprang up among the members of said religious sect different views upon subjects of practice to be adopted by the congregations with reference to matters upon which the Bible is silent -one view being that, in the matters upon which the Bible is silent, such silence should be construed as a positive prohibition; the other view being that, if the Bible is silent upon a given subject pertaining to church government, then the congregation may formulate a rule in that particular for the government of the congregation. The division along the lines above suggested seems to have grown as the church membership increased, and in 1889 there was a wide difference of view between the several congregations, and between the members of the same congrega

tion, relative to many practices in the church. such as to the propriety of having instrumental music in the church during church services, the employment by the congregation of ministers of the gospel for a fixed time and for a fixed salary, the organization of missionary societies and Sunday schools as separate organizations outside the regular church congregations, the raising of funds for the support of the gospel by holding church fairs and festivals, and perhaps in other matters of a similar character; and in that year, at the annual August meeting held at the Sand Creek Church, and where there was present a large concourse of people drawn together from different congregations, Rev. Daniel Sommers, a follower of Alexander Campbell, preached a sermon upon what was characterized as innovations upon the practices of the church, and afterwards a declaration, known as the "Sand Creek Declaration," was presented to the brethren present for their indorsement. That declaration condemned many, if not all, of the practices above referred to. It was signed by a few only of those who were present, and it was not considered binding upon any member of the church or upon any congregation, unless signed by the member or adopted by the church congregation, but was considered merely advisory to the members of the church. The division heretofore referred to from that time forward seems to have spread, and at the time this suit was commenced the evidence shows the followers of Alexander Campbell had divided upon those lines to such an extent that one faction in the church was characterized as progressives and the other conservatives; the members favoring the more liberal view being called "Progressives," while those eu tertaining the more conservative view were called "Antis." The persons entertaining the progressive view appear latterly to have usually favored and taken in their church organizations the name "Christian Church," while those favoring the conservative view have taken the name "Church of Christ" as the name of their church organizations.

While there was some discussion between the members of the Sand Creek congregation prior to the year 1904 in regard to the "Sand Creek Declaration," and as to the propriety of having instrumental music in church during church services, the employment of a minister of the gospel for a fixed time for a fixed salary, the organization of missionary societies and Sunday schools outside the church congregation, and the holding of church fairs and festivals for the purpose of raising money for the support of the church congregation, none of those matters were ever brought before the Sand Creek congregation for discussion and determination, and that congregation, as such, never took action with reference thereto, and none of the matters in church practice which are characterized as innovations were ever indorsed or practiced by the Sand Creek con