111 Ill. 273 | Ill. | 1884
delivered the opinion of the Court:
We think that the instructions given do not properly state the law applicable to the facts of this case. William Goodwin, as tenant for life of this land, might make or allow any use of it he saw fit, during his life, provided no injury was done to the inheritance. Appellees, as remainder-men, dur-. ing the existence of the life estate had the right only to prevent the commission of waste. The evidence showing that the railroad track, as originally constructed, did no injury to the premises, appellees had no lawful power to prevent the construction of the road under the license of the tenant for life. The original entry, as to them, could not have been a trespass, for the reason they then had not even a right to possession. As has been said: “An original entry by the consent of the tenant for life, is lawful, and will not subject the party entering, to an action of ejectment on the part of the remainder-man, although damages have not been paid. Other remedies must be sought. ” Mills on Eminent Domain, sec. 142; Austin v. Rutland R. R. Co. 45 Vt. 142.
By instruction No. 2, the jury are told that if the entry upon the land was made without any license from the defendants, or from one having legal power and authority to give such license or permission, such entry, etc., was a trespass, and that the structures, placed upon the land became a part of the realty, and inseparable from it. By instruction No. 4, the jury were told that the life tenant had no power or authority to give such license. These instructions should not have been given in a ease like the present. It does not necessarily and invariably follow that structures, or even buildings, placed by one person on the land of another become a part of the real estate. When they are trade fixtures, they are regarded as personal property. So a house erectéd upon the land of another, under an agreement that it shall belong to the builder, is personal property. (Matzon v. Griffin, 78 Ill. 477; Curtiss v. Hoyt, 19 Conn. 165; Wells v. Bannister, 4 Mass. 514; 2 Am. Leading Cases, 747.) If a man erects a house upon the land of another with his consent, it will, if "the builder has no title to the land, be the personal property of the builder. 1 Washburn on Real Prop. p. 2, sec. 4; Aldrich v. Parsons, 6 N. H. 555; Dame v. Dame, 38 id. 439; Osgood v. Howard, 6 Greenlf. 452; Ashmun v. Williams, 8 Pick. 462; Doty v. Gorham, 5 id. 487; Rogers v. Woodbury, 15 id. 156; Mott v. Palmer, 1 Conn. 571; Hinckley v. Baxter, 13 Allen, 139. And it will so remain, though the land owner convey the land, and the owner of the building convey that, if to different persons. Ham v. Kendall, 111 Mass. 298.
If a person enters the land of another without permission, and places a building or other structure thereon, permanently attached to the soil, he will be a trespasser, and the building or structure will become part and parcel of the land, and will be the property of the land owner. In such case, the builder acquires no rights by his tortious acts. But here there was no trespass, because the entry upon the land was with the express consent of one having the right to give it, and all the subsequent acts were done without objection, and before any steps were taken to dispossess the plaintiff or the corporation which it succeeded. Even if the entry had been without license or permission of any one authorized to grant the same, so that it was a trespass at the time, the law would not require the railroad company, in seeking a condemnation of the land so entered upon for a right of way, to pay the owner of the land for structures placed upon it at its own expense, with a view of subsequently acquiring the right of ivay. As sustaining these views, see Greve v. First Division St. Paul and Pacific R. R. Co. 26 Minn. 66; Morgan’s Appeal, 89 Mich. 675; Toledo, Ann Arbor and Grand Trunk R. R. Co. v. Dunlap et al. 47 id. 456; Lyon et ux. v. Green Bay Ry. Co. 42 Wis. 538; Justice v. Nesquehoning Valley R. R. Co. 87 Pa. St. 28; California P. R. R. Co. v. Armstrong, 46 Cal. 85.
In a proceeding of this kind, to Condemn land for a right of way, the land owner can not recover damages for a prior trespass by entering upon his premises. Lafayette, Bloomington and Mississippi R. R. Co. v. Winslow, 66 Ill. 219.
That the land owner whose land is condemned can not recover, in addition to the value of the land taken, the value of improvements put upon the same by the party seeking a condemnation, reference has been made to the following other cases: Baker v. Chicago, Rock Island and Pacific R. R. Co. 57 Mo. 265 ; Dietrich v. Murdock, 42 id. 279; Blesch v. Chicago R. R. Co. 43 Wis. 195; Mississippi R. R. Co. v. Devaney, 42 Miss. 602; Robbins v. Milwaukee R. R. Co. 60 Maine, 290; Sema R. and D. R. R. Co. v. Camp, 45 Ga. 180; Harvey v. Lackawanna and B. R. R. Co. 47 Pa. St. 428; East Pennsylvania R. R. Co. v. Hottenstine, id. 28 ; White Water Valley R. R. Co. v. McClure, 29 Ind. 536; Greenville R. R. Co. v. Munnamaker, 4 Rich. L. 107 ; McAuley v. Western Vermont R. R. Co. 33 Vt. 311; State v. Gulf Ry. Co. 3 Rob. (La.) 513. The “just compensation” required to be given, is for that which is taken from the owner, and which is of value to him, and not for something he never owned.
The third instruction given for the defendants is further erroneous in directing the jury to allow the defendants, as compensation for the structures placed upon the land, what such property was reasonably worth for the purpose for which it was intended, although of no practical value to defendants in connection with their farm. The compensation which the law requires to be made is that which is “just.” This means that the sum allowed and paid the owner whose property is taken, shall be equivalent to the value of that of which he has been deprived. It would be unjust to allow him more than will compensate his loss. It would seem, at first blush, to be highly inequitable to allow him for a railroad track over his land, not built by him, including embankments, at its cost or value to a railway company owning a franchise to use the same for railroad purposes, when to him it is of no practical value.
For the reasons indicated, the judgment of the county court of Will county is reversed, and the cause remanded for further proceedings according to law.
Judgment reversed.