delivered the opinion of the court:
This is an appeal from a judgment of the superior court of Cook county fixing the just compensation to be paid by the appellee, the Chicago and Western Indiana Railroad Company, to the appellant, George H. Murphy, for lots 23, 26, the north seventeen and one-half feet of lot 29 and the undivided one-half of lot 35, in George H. Bliss’ subdivision of block 127, in the School Section addition to Chicago, to be taken and appropriated by the appellee for the increase and improvement of its passenger and freight facilities at its terminal station in Chicago.
The appellant filed his motion to dismiss the petition on various grounds and the court overruled the motion. The hearing of the motion and the trial before the jury were both very lengthy and there was continual strife during both, so that it would require a volume to take up in detail the various questions raised. That will not be attempted, but the material and controlling questions will be decided.
It was only necessary for appellee to show that it was a de facto corporation, but in order to show its existence as such a corporation it was necessary that there should be some law under which a corporation of its character could be created. (Gillette v. Aurora Railways Co.
Another objection made was, that the three corporations could not be consolidated because their lines were parallel and competing. There was a valid law for the consolidation of corporations and a bona fide attempt to consolidate under the law, and whether the facts were such as to justify the exercise of the privilege could not be raised in this proceeding. That would have involved a determination whether the appellee was a de jure corporation, and it would be no more competent than it would to raise a question of some defect in the proceeding for consolidation. The case of Illinois State Trust Co. v. St. Louis, Iron Mountain and Southern Railway Co.
The appellant moved the court to require the appellee to exhibit and file its plans to show what would be done with the property or erected upon it. The appellee replied that it had no plans and proved by its engineer that none had been made; that the terminal facilities at the station were insufficient; that the station was occupied by seven or more railroad companies, and the property was to be used for any of the purposes of a terminal station. It is said that the object was to show an abuse of the power to take private property, under the rule in Tedens v. Sanitary District,
It was proved that the agent of the appellee offered the appellant $1000 a front foot for his property, which was the valuation put upon the property with great unanimity by the witnesses for appellee on the trial. The evidence justifies the belief that the offer was bona fide and that there was a sufficient attempt to agree on the compensation.
The lots extended to the center of the street and alley on which they were situated, and the petition sought to take the whole of the lots, including those parts which were subject to the public easement. It is contended that the petitioner could not take the portions of the lots which were subject to such public easement. There is no foundation for the claim, and if the appellee could not make any use of the fee for tracks without the consent of the city, it could acquire all rights in the fee and take its chances of securing the consent of the city.
The court did not err in overruling the motion to dismiss the petition.
The petition was filed on June 2, 1910, and the jury awarded to appellant for lot 23 arid the north ten feet of lot 26, as the value of the property at that date, $63,550,— property for which the appellant had paid $80,000 less than four years before. The jury awarded $93,450 for lot 26, (except the north ten feet,) the north seventeen and one-half feet of lot 29 and the undivided one-half of lot 35, for which the appellant paid $125,000 one month before the petition was filed. The sums so allowed, although far below the values fixed by witnesses for appellant, were within the range of the testimony, and as the jury saw the property the judgment would not be disturbed if it appeared that appellant had a fair trial. Counsel for appellee say it does not concede that appellant paid the sums mentioned for the property, and that the jury evidently believed that he did not or was intending to speculate on the necessities of the appellee. The .jury had no right to assume from anything found in the record that the amounts named were not paid, since there was no evidence tending in any degree to impeach the bona fide character of the purchases, or either of them, or to show any depreciation in values since the purchases. It appears to us that the apparently unjust result was reached on account of the manner in which the case was tried and a misapprehension of the effect of the evidence.
The lots fronted east on Federal street and there was an alley in the rear. They were in the midst of a railroad terminal station occupied by a large number of railroads, and the terminal station fronted north on Polk street, an east and west street. On the question of value the appellee examined a number of witnesses who testified to sales of property north of Polk street in different localities in the neighborhood. It is contended that this evidence was improperly admitted because none of the property was of similar character to the lots in question. Evidence of sales of similar property is legitimate for the purpose of fixing the value of property to be condemned, but no two pieces of property are exactly alike, so that no positive rule can be laid down as to the degree of similarity to justify proof of such sales. The limits of the evidence necessarily rest largely in the discretion of the trial judge. St. Louis and Illinois Belt Railway Co. v. Guswelle,
Proof was made of sales in a locality that had been devoted to disreputable houses and the city had required the owners to move their business from that locality, so that the houses were empty, the rental values destroyed, and the value of the property, which the owners desired or were compelled to dispose of, greatly reduced. We cannot say that the discretion of the court was abused by proof of the various sales in the neighborhood, but the appellant was entitled to have the jury understand all the differences between his property, with its present and probable prospective uses, and the property concerning which the sales were proved.
There had been an ordinance, in 1883, in settlement and compromise of questions between the appellee and the city, by which the appellee gave up any right to extend its lines north of Polk street, on which the terminal station fronted, and the court improperly limited the cross-examination of the witnesses for appellee to show that the property north of Polk street had no possibility of railroad connection or of railroad uses such as the property of the appellant had. It is true that the ordinance did not prevent the city from at some future time granting the right to lay tracks north of Polk street, but the appellant had a right to show that there was no probability of such a right being granted. The question was asked whether there was not a general understanding, and it was generally considered by all persons, that there could be no tracks north of P'ollc street, and if that fact did not create differences in the property and affect values. The court sustained objections, and thereby prevented a fair and full investigation as to the comparative values of the property. The situation, condition and improvements might have been such as to preclude any probability, or even possibility, of tracks being extended north of Polk street or the city giving consent for such extension.
After proving the sales of property, witnesses were placed on the stand who had been, or were then, furnished with lists of these sales and gave opinions as to the value of appellant’s property by consulting these lists, to which the appellant objected. Witnesses may give opinions as to the value of property, and the weight to be given such opinions is to be determined by the jury from the knowledge and experience of the witnesses and their capacity ho form a judgment, but such opinions are in no proper sense expert testimony, to be based upon hypothetical states of fact. All persons who are acquainted with property and have opinions of its value may give their opinions to the jury, together with their knowledge of the property and the facts upon which the opinions are based. (Illinois and Wisconsin Railroad Co. v. VonHorn,
The court refused to admit evidence of the amounts paid for property in the, immediate locality and in the same situation as the property in question and having the same advantages and disadvantages. The ruling was based on the fact that although the property was purchased by an individual and the title to some lots taken in his own name and to others in the names of non-resident individuals, the money was actually furnished by the Wabash Railroad Company and the property was' acquired for the uses of the terminal station. Where a railroad company has located its road across property it is not proper for one owner to show what the company has paid as compensation for other property, because it must have the particular property even if it costs more than its real value. There is also the element of damage to remaining property, differing in almost every case, and the amount paid furnishes no fair criterion of value. The company cannot prove what it has paid because .the sale is compulsory and it could have forced a sale at a price to be fixed by a jury. (Peoria Gas Light Co. v. Peoria Terminal Railway Co.
The court did not err in excluding section 2 of the ordinance of 1879, authorizing appellee to cross streets and alleys in its original construction of its road, and did not err in refusing to require appellee to produce its plans on the trial before the jury. It is argued that the plans would have shown an intended extension of the Monon freight house upon the lots. From the situation it would look as though that might be so, but it could make no difference in the valuation by the jury. As the appellee took the whole of appellant’s property, it would make no difference to him, in determining the value, whether the Monon freight house or the Monon tracks were extended across it.
The court permitted a map introduced in evidence to go to the jury room against the objection of appellant that it had been changed and altered after it was so introduced. Following the admission of the map in evidence the abstract of record shows the following: “From time to time during the trial additions and alterations were made in said map by the petitioner, to which respondents objected, as hereafter set forth.” It was error to deny the motion to exclude the map.
In the cross-examination of a witness who has given an opinion as to value it is proper to ascertain the extent of his dealings in real estate, for the purpose of informing the jury as to his ability to form a judgment; but appellee was permitted, in the cross-examination of appellant’s witnesses, to interrogate about prices of dissimilar property at long distances from the property in question and the values estimated by the witnesses for such dissimilar property, which was extending the cross-examination beyond proper limits.
The court instructed the jury that they had no right to assume anything in regard to the action of the city council in granting permission to cross any street or alley to afford switch track connections with this property. While the city council could not be compelled to grant the permission, the jury had a right to form a judgment, from the situation of the property and its requirements if used for a warehouse, whether it would be reasonable to grant such permission and whether the city council would be likely to do so. The use of the property for warehouse purposes was claimed by the appellant to add to its value, and there was testimony to that effect. To tell the jury that they had no right to assume that the privilege might be granted, eliminated the question of such probabilities and practically destroyed that element of value. There was evidence that a switch track could be run to the property if consented to by the city council, and the jury had a right to judge, from all the evidence, whether that fact added anything to the value of the property.
The court gave the instruction about disregarding the evidence of witnesses so far as such witnesses had magnified or depreciated the value of the property, which was commented upon in Herrin and Southern Railroad Co. v. Nolte,
Ninety-eight instructions were asked and fifty-two were given. There was no occasion for giving such a number of instructions, which necessarily consisted of practical repetitions of the same rules of law. Certainly no one would think it necessary to give fifty-two instructions to enable the jury to decide what appellant’s property was worth.
The judgment is reversed and the cause remanded.
Reversed and remanded.