170 N.E. 295 | Ill. | 1930
Lead Opinion
The Department of Public Works and Buildings filed its petition in the circuit court of Franklin county against numerous persons, including the four appellants, Charles M. Baldwin, David N. Dees, Thomas Eubanks and Giacoma Beoletto, to condemn a strip of ground about seventy feet wide to be used as a new location for a public road known as section 126 of Route 148, under the Second Bond Issue act. Appellants filed answers, and they also filed cross-petitions asking for damages to lands not taken. There was a trial by jury, a separate verdict was returned for each tract of land, a motion for a new trial was overruled, judgment was entered upon the verdict, and an appeal has been prosecuted to this court.
It is insisted by appellants that no preliminary showing was made as to the right of appellee to condemn, and that proof should have been made that the new location sought to be condemned constituted such a minor change in the location of the road as was authorized to be made under the statute. Appellants are in no position to raise this question. In a condemnation case, where the land owners appear and consent to the selection of the jury and contest the case upon its merits they waive the right to question the authority of the petitioner to condemn, and they cannot, *349
when disappointed as to the amount of the award, retrace their steps and contest the questions, which were clearly preliminary to a jury trial. (Lieberman v. Chicago and South Side RapidTransit Railroad Co.
Complaint is made that in the instructions as to the form of verdict the number of acres in each piece sought to be condemned was erroneously stated, that the evidence was in conflict as to these amounts, and therefore the instructions assumed a disputed fact, which was error. The. petition stated the number of acres sought to be taken from each defendant. The answers, in some instances, alleged a slight increase in acreage. The only evidence offered as to the acreage was by one witness offered by appellee. No evidence was offered on that point by appellants, and therefore the evidence was not in conflict. The case was tried by both sides on the theory that the acreage proven by appellee was correct. It is not ground for the reversal of a judgment that an instruction assumes as proven, facts which are established by the evidence without contradiction. (Shults v. Shults,
The evidence shows that the house belonging to appellant Beoletto was on the strip of ground sought to be condemned and that it was worth from $800 to $1200. The court, over the objection of Beoletto, permitted appellee to *350
prove that it would cost about $300 to move the house about 200 feet off of the strip. The evidence shows that Beoletto owned the land on both sides of the strip. The jury allowed $50 as the value of the land taken and $325 as damages to land not taken. Beoletto insists that he was entitled to the full fair cash market value of the house, that he was not required to move the house, and that the court was in error in admitting evidence as to the cost of moving it. In American and English Encyclopedia of Law (vol. 10, p. 1158,) it is said: "Some opinions hold that the owner is entitled to remove improvements from the land and recover the cost of the removal. If he prefers to leave the improvements on the land he can generally recover for them unless there is a statute to the contrary." In 20 Corpus Juris, 590, it is said: "In the absence of statutory prohibition, a dwelling house or other building may be taken or removed under the right of eminent domain like any other species of real estate; and the legislature may provide that in taking lands the buildings may be taken absolutely, or that no interest in the buildings shall be taken but the owner may be compelled to remove them off of the part taken, in case he has land left upon which they may be removed." To the same effect is 15 Cyclopedia of Law and Procedure, 604. In Lafayette,Bloomington and Mississippi Railroad Co. v. Winslow,
Appellant Baldwin insists that the court improperly refused to permit him to prove which way his house would front on the new road; refused to permit him to prove that he would have to cross the road every time he went *352
to the field, open two gates and look out for traffic on the road; and refused to permit him to prove what damage it would be to his property if his buildings were located a quarter of a mile from the main traveled road. The true measure of damages for land not taken is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it. Benefits to land not taken may be set off against damages to lands not taken. Damages must be direct and proximate and not such as are merely speculative and remotely contingent. (Illinois Power Co. v.Wieland,
The judgment entered upon the verdict made no provision for the payment of costs. Where private property is taken or damaged for public use the owner's costs are a part of the just compensation provided by law and should be included in the compensation awarded. (Commissioners of Highways v. Hohmeyer,
The record contains errors as to the land of each appellant, and the judgment is reversed and the cause remanded.
Addendum
The foregoing opinion reported by Mr. Commissioner Partlow is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded.
