6 N.E.2d 157 | Ill. | 1936
Pursuant to resolution of its board of supervisors the county of Fayette filed its petition for condemnation of lands for improvement of a State-aid road, wherein they *230 sought to condemn 1.30 acres of land belonging to appellants, Elmer L. Whitford and Blossom Whitford, his wife. Another tract belonging to C. Guy Neeper and Margarette Neeper was included in the same proceeding, but they have not appealed. The suit resulted in a verdict and judgment for damages in the sum of $200 for land taken and $300 for damage to land not taken. The Whitfords have appealed.
Appellants assigned nine errors but have abandoned all but four of them by failing to argue. The four which are argued are as follows: (1) That there was no showing of the necessity for the improvement; (2) that there was no proper description or designation of the State-aid route in question; (3) that there was no proof of inability to agree on compensation to be paid before the petition was filed; and (4) alleged errors in respect to the giving and refusing of instructions.
The question as to the necessity for the improvement and the taking of the land in question was decided by the court on a hearing held on defendants' motion to dismiss. The petitioner introduced the records of the various resolutions of the board of supervisors setting forth the necessity and desirability of making the contemplated improvement. The maps and plans for the improvement, copies of which were attached to the petition, were introduced in evidence and carried the approval of the State Highway Department and of the chief highway engineer. These plans disclosed a highway of ordinary width and with ordinary curves, and there was no evidence of any kind to discredit the recital of the board of supervisors that the improvement was a necessary and proper one to be made. On a preliminary hearing such as this, the rule is that where the use to which the property is to be put is a public one the courts will not inquire into the question of its necessity unless there is an apparent abuse of the petitioner's discretion. (Smith v. Drainage District,
Appellants' second contention is based upon an error in the description of the beginning of the route in question. In the record of the supervisors' proceedings the route is described as beginning at a point on the village limits of Farina "at or near the N.W. corner of the SW 1/4 of the SW 1/4 of section 33, T. 5 N. of R. 4 E. of the 3rd P.M., and extending thence east along the center lines of sections 33, 34, 35, 36," etc. It is perfectly obvious that a line beginning at the northwest corner of the southwest quarter of the southwest quarter of a section could not proceed from thence east along the center line of that section. The "SW 1/4" in the description is repeated once too often, the road actually beginning at the northwest corner of the southwest quarter of the section. The copies of maps, plans and surveys attached to the petition, however, show clearly where the road begins, and there was no prejudice to the defendants or to the public resulting from this error in the description. It is a rule frequently employed, to reject an obviously false and impossible part of a description which is repugnant to the general intention of the instrument where there is a perfect and sufficient description left after such rejection is made. If the record *232 of the supervisors be construed together with the maps and plans which they approved the correct description is immediately apparent.
Appellants' contention that there was a failure to prove inability to agree on compensation before the petition was filed is entirely without merit for two reasons: In the first place, there was evidence heard on the preliminary inquiry as to the necessity for the improvement, that the county, through one of its agents, had offered appellants $200 for the necessary ground and that appellants had demanded $1500. This was not controverted and would be sufficient to sustain the judgment. In the second place, even this evidence was unnecessary, as appellants filed their cross-petition for damages to land not taken, and this was a waiver of any question as to whether or not there had been a failure to agree upon compensation prior to the filing of the petition. Alton and Southern Railroad v. Vandalia Railroad Co.
On the question of instructions, appellants assert, without any argument for our enlightenment, that three refused instructions should have been given. While the question has probably been waived by failure to argue, it is apparent that one of these three instructions has been definitely condemned by this court, another was covered by a given instruction, and the third was properly refused because not based on any evidence in the case.
A review of the evidence indicates that appellants have been fully and fairly compensated for the land taken and for damage to lands not taken and have not been prejudiced by any error apparent in the record.
The judgment of the circuit court will be affirmed.
Judgment affirmed. *233