| Ill. | Jun 12, 1886
delivered the opinion of the Court:
The petition in this ease was filed in vacation, in the county court of St. Clair county, by the Illinois and St. Louis Bailroad and Coal Company, for condemnation of a strip of land one hundred feet wide, containing one and four one-hundredths acre, for right of way of petitioner. The tract of land of which this strip forms a part, contains about eleven acres, on which a flouring mill is situated. The strip of land is mostly across a pond, from which the water required for steam purposes in the mill is derived. The report of the jury allowed $400 as the value of the land to be taken, and $2185 as damages to the land not taken, upon which finding the court rendered judgment, and the petitioner appealed.
It is the finding and judgment in respect of damages that is complained of. The damage which was sought to be shown by the evidence, was in cutting off the water supply for the mill from the pond. It appeared that the railroad company, under license from the former deceased owner, had been in possession and had the use of the property for some ten or fifteen years; that it crossed the pond on trestles, .and did not interfere with the pond in supplying water.
At the trial, witnesses were introduced, on the part of the defendants, who gave testimony that if the railroad company should build a solid embankment of earth across the pond to place its track upon, it would destroy the pond as a source of water supply for the mill, and that if the pond were destroyed, and there was no other means of getting water, the. damage to the mill would be great,—giying their estimates of the amount, based on that hypothesis. In rebuttal of such testimony, the petitioner offered to prove that the Belleville waterworks can furnish, and agree to furnish, water regularly to the mill, and all it may require, at a cost which will be less than the cost of pumping the water from this pond; also, that Richland creek, which flows nearer to the mill than the pond is, has a capacity to furnish better water, and an abundance, for the use of the mill. The court excluded the testimony. There was, in this, manifest error, for which the judgment must be reversed. There having been an estimate of damages made on the basis that the pond would be destroyed as a source of supply of water for the mill, and that there would be no other means of such supply, it obviously should have been permitted the petitioner to show there would be other sources of '¡vater supply,—not, as is supposed by appellees’ counsel, for the purpose of showing there would be no damage, but for the purpose of affecting the amount of damage, the amount of the estimates of damages by appellees’ witnesses haying been based upon the supposition that there would be ho other means of supplying the mill with water.
There was evidence that to cross the pond on trestle work would cause no, or but little, damage in injuring the pond, and that an embankment of earth across the pond, with a culvert to allow communication between the two sides, would not interfere with the capacity of the pond to supply water to the mill. The question was asked by the petitioner, of a witness, to the effect, how the company intended to cross the pond, and the court excluded the question. And the court gave this instruction to the jury:
“The court instructs you that the verbal statements of the employes and officers of the railroad company, even when made under oath, that they do not intend to make an embankment of earth or other material across said mill pond, for said railroad tracks, will not legally bind said railroad company, its successors and .assigns, not to make said embankment. The only way that said railroad company can legally bind itself and its successors and assigns not to build an embankment of. earth or other material across said pond for its track, is for said company to make, in writing, and sign and file with the papers in this case, a stipulation or covenant running with the land, that said railroad company and its successors and assigns will never make an embankment across said pond, but will perpetually maintain its tracks on trestle work, or put a bridge or culvert across said pond.”
Whether1 there was error in the rulings in this regard, it is unnecessary for the decision of this case to determine. It may be proper, in view of another trial, to say it was undoubtedly competent for the railroad company to show the plan of construction of its road over the premises in question; but where, as here, the particular plan of construction would materially affect the question of damages, the plan should be presented, and preserved in the records of the court, so that it might thereafter be known upon what plan of construction the damages were assessed, and if there should be departure from the plan, to the defendants’ damage, they might have their remedy for any such increased damage.
The judgment will be reversed, and the cause remanded.
Judgment reversed.