175 Ill. 562 | Ill. | 1898
delivered the opinion of the court:
This is an appeal from a judgment of condemnation entered on a petition filed by the town of Normal, asking that the just compensation to be made by it for the opening of Poplar street, across appellant’s right of way, according to an ordinance passed by the town authorities, be ascertained by a jury. Appellant filed a cross-petition, claiming damages for a car-house or out-house that would be cut in two by the opening of such street, and also for a section-house standing on the land to be taken, and for a well appurtenant thereto but not on the line of the proposed street crossing. Appellant also made a motion to dismiss the proceedings,—first, because the property, having been appropriated to a public use by the erection of the section-house, was exempt from condemnation; second, because the commissioners appointed by the town to estimate the cost of the improvement had not taken into consideration the value of the improvements; and third, because the occupant of the section-house was not made a party to the suit. The court look the motion under advisement, and, after hearing the evidence, a jury having been waived, overruled the motion, found the just compensation .for property taken to be $225 and the damage to property not taken nothing".
The first alleged error in overruling the motion to dismiss is not seripusly urged, and we are referred to no authorities. This house was not necessary for the operation of the railroad, and required no particular location either on or off of its right of way, and the railroad company could hot have condemned land for such a use. (Lewis on Eminent Domain, sec. 170.) It follows, therefore, that the erection of snch a house by the company presents no obstacle to a condemnation for a street crossing.
The second reason' urged for dismissal is also untenable. Section 5 of article 9 of the act for the incorporation of cities and villages specifies what such petitions shall contain, viz.: a copy of the ordinance, certified by the clerk under the corporate seal; a reasonably accurate description of the property to be taken or damaged; and the names of the owners or occupants thereof, so far as known to the board or officer filing the petition. No estimate of cost is necessary. This point has been expressly decided adversely to appellant’s contention in City of Danville v. McAdams, 153 Ill. 216.
The third ground is not supported by the evidence. It is not clear whether the alleged tenant moved in before or after the filing of the petition. At any rate, the court below was justified, from the evidence, in finding that the board or officer filing the petition did not know the name of the occupant, if there was any, although proper diligence was used to ascertain the fact. In the motion to dismiss no one is named as tenant, and it does not appear from the petition that any party has been omitted. The statute does not require that persons whose interests are subsequently discovered shall be made parties on motion of the petitioner. It provides that the jury shall ascertain the compensation to be paid them, whether named in the petition or not, provided such person files a statement of his interest and is admitted as a party to the suit. This was not done here, and appellant certainly cannot complain, as its interests are not affected thereby. The motion was properly overruled.
The judgment of the court as to the compensation and damages to be paid is assigned for error. It is contended that the compensation for taking the section-house is inadequate and not warranted by the evidence, and that the court should have allowed something as damages to property not taken. The testimony as to the value of the car-house and section-house was conflicting. The court heard the evidence and saw the witnesses, and we think the amount of the compensation found is supported by the evidence. It was for the court, sitting as a jury, to weigh the conflicting statements, and the amount allowed is not so inadequate as to justify a reversal on that account. Braun v. Metropolitan West Side Elevated Railroad Co. 166 Ill. 434; West Chicago Street Railroad Co. v. City of Chicago, 172 id. 198.
Appellant claims that it should have been allowed a sum equal to the value of a town lot situated in the vicinity of this street crossing as compensation for the land taken, because it occupied the land with a section-house, which had formerly been used as a dwelling house for its employees and which it intended again s'o to use. In the condemnation of a railroad right of way for a street crossing the market value of the land as land cannot enter into the estimate of compensation, for the reason that such property cannot be sold for general purposes, and by the condemnation the public acquires only the right *to use it jointly with the railroad company, and only as a crossing. (Chicago and Northwestern Railway Co. v. Town of Cicero, 157 Ill. 48; Illinois Central Railroad Co. v. Village of Lostant, 167 id. 85.) Notwithstanding the condemnation the company continues to own it, with the right to use it for its corporate purposes not inconsistent with its use as a street crossing. (Chicago and Northwestern Railway Co. v. Town of Cicero, supra.) The evidence shows that that particular location for the section-house was not necessary for its use by the railroad company. The company was not therefore entitled to any more compensation for the land taken, aside from the structures and improvements, than for any other part of its right of way. The well (or cistern) was not itself taken or damaged, but it was appurtenant to the section-house, and whatever damage appellant may have sustained on account of the separation of the well from the section-house was properly included in the compensation for the property taken. (Chicago, Santa Fe and California Railway Co. v. Ward, 128 Ill. 349.) The evidence tended to show that it would still be of use to appellant.
No propositions to be held as law in the decision of the case were submitted by the petitioner, and we find no error in the ruling of the court in modifying or refusing propositions submitted by the defendant.
The judgment of the county court will be affirmed.
Judgment affirmed.