The Illinois Power and Light Corporation on April 2, 1925, presented its petition to the judge of the county court of Warren county for the condemnation of sites for two supporting towers and an easement over a strip of land owned by John F. McCulloch three rods wide and 1112.6 feet long, for the construction, maintenance, operation and repair of a high-power electric transmission line from the Keokuk dam to Monmouth and Galesburg. At the time fixed for the hearing, McCulloch, the owner of the land, filed a cross-petition, alleging that he was the owner of the southwest quarter of section 27, town 10, north, range 3, west of the fourth principal meridian, of which the land sought to be taken was a part; that the quarter section had been fenced and managed as one farm, and that the taking of the land and the creation of the easement and construction of the power line as sought by the petition would greatly damage all the quarter section by depreciating its fair cash market value, and praying compensation for the damages so caused. A trial resulted in a verdict finding just compensation for the land taken to be $5.30 and the damages to the land not taken to be $1000, and a judgment authorizing the petitioners to enter upon the land described in the petition upon payment of the full compensation ascertained by the jury within sixty days. The petitioner has appealed, and the questions involved in the appeal relate only to the amount of the damages to the land not taken.
Before the introduction of any evidence, the jury, on motion of the appellee, was permitted to view the premises. The appellant then introduced the evidence of witnesses showing the location of the strip of land in question, the quantity of land included in it, the quantity of land taken for each tower, the method of construction of the *541 line, including the towers, and the manner and extent of the use to be made of the strip. From the evidence it appears that the three-rod strip sought to be condemned lies wholly in the southeast quarter of the southwest quarter of the section; that its center line crosses the south line of the southwest quarter 1007.1 feet west of its southeast corner, thence extends north 65 degrees 43 seconds east 1112.6 feet to a point in the east line of the quarter section 485.8 feet north of the southeast corner of the southwest quarter, and that the triangular part of the southeast quarter of the southwest quarter south of the three-rod strip contains about five acres. The transmission line is to be of wire, supported by steel towers about 650 feet apart, of which there will be two on the appellee's land. The towers are to be constructed of structural steel, with a leg at each of the four corners and diagonal and horizontal steel supports from leg to leg. Each leg is to be anchored ten or twelve feet deep in the ground to a ball of concrete from two to two and a half feet in diameter. At the foundation the area to be occupied by each tower is a trifle less than one-one-hundredth of an acre. The towers taper to the top, which is to be sixty-four feet above the ground. Each tower carries three cross-arms at a height above the ground of forty-four, fifty-two and sixty feet, respectively, with a conductor at each end, made up of six strands of aluminum wire and one of steel wire, to give additional strength to the conductor. The conductors are suspended from insulators, so that at the tower the lowest conductor is forty feet from the ground. The normal sag of the wires between towers is fifteen or sixteen feet, and at their lowest point the wires will never be lower than twenty feet above the surface of the ground. Each double circuit of the transmission line carries 66,000 volts of electricity. Should a conductor break or come in contact with anything to ground the current, circuit breakers, automatic oil switches at the Keokuk dam, will immediately *542 operate to cut off the current from the conductor and render it harmless the instant it touches the ground. The strip of ground over which the easement is sought, including the two-one-hundredths of an acre upon which the two towers are to rest, has an area of 1.26 acres. The insulators are of porcelain and are subject to accidental or intentional breakage. The sites of the towers will be in the exclusive possession and under the exclusive control of the appellant, and the remainder of the strip of land will be subject to the appellant's use for the construction, inspection, maintenance and repair of the line. Subject to such use, the land included in the strip, except where the towers are to be, will be available for farming purposes, and the appellee will have the right to use and control it as completely as he ever had, except as his right may be interfered with by the exercise of the appellant's right.
The testimony of the four witnesses introduced by the appellant in chief who testified on the question of value and damages, tended to show that the land was worth $200 an acre and that the depreciation in value of the three-rod strip was from $30.76 to $100, each of those amounts being testified to by one witness, $50 an acre by another and $75 or $80 by the fourth. The appellant introduced no evidence in chief on the question of damages to land outside the three-rod strip described in its petition. The appellee then introduced six witnesses who testified that the land was worth $275 an acre; that the three-rod strip was damaged in amounts varying from $125 to its full value, and the rest of the land outside the strip was damaged from $6 to $25 an acre, one saying $6, one $10, two $15 and two $25. The appellant introduced seven witnesses in rebuttal, one of whom estimated the damages to the land outside the three-rod strip at $2 an acre, one estimated the total damage, including the strip, except the part occupied by the towers, at $200, one at $2 an acre and the other three at $300 to $350. *543
The appellant contends that none of the appellee's witnesses who testified as to the damages to land not taken was qualified to testify on that question because none of them had any experience or observation on which to base a correct judgment. The witnesses, who were all farmers owning land in Warren county and acquainted with the value of land, knew the appellee's farm and the location and character of the transmission line, but none of them had ever bought, sold or rented land having such a line crossing it or knew of any land having such a line crossing it being bought, sold or rented, or had had any experience with any such land. The question of the market value of land is not, however, a question of art or science, which must be shown by the testimony of experts. We have held that it is a question of fact to be proved as any other fact, and any person who is acquainted with the land is a competent witness as to its value. (White v. Hermann,
After the witnesses had testified and been cross-examined as to the basis of their opinions, the appellant moved *544
to exclude their testimony in regard to the depreciation of land not taken outside of the three-rod strip for the reason that such opinions were based upon elements of alleged damage which were too remote and not sufficiently reasonably certain to be the basis for opinions touching the value or depreciation of the land, and the basis of the opinions was of such a character that the alleged elements of damage included in the opinions could not be separated so as to tell how much of the damage included was predicated upon improper elements. The court denied the motion. This was error. Opinions of witnesses based upon supposed elements of damage which were not recognized by law as proper to be considered in condemnation proceedings should have been excluded. Only such opinions as are based on evidence of lawful elements of damage can be of benefit to a jury in the assessment of the amount of damage.City of Kankakee v. Illinois Central Railroad Co.
The appellant's contention that there is no sufficient evidence to sustain the judgment for damages to land not taken and that the damage allowed to land not taken is excessive raises the important questions in this case, which are as to the right of the land owner to have any damage assessed for land not taken outside the three-rod strip, and if there is any such right, as to the amount of the damage. Upon its petition the burden of proof was on the appellant to show the fair cash market value of the land it proposed to take for its towers and the damage to the part of the three-rod strip not taken for the towers. The measure of this damage is the depreciation in value of the three-rod strip for farm purposes caused by its subjection to the appellant's superior right to use it for the purposes mentioned *545
in the petition. (St. Louis and Cairo Railroad Co. v. PostalTelegraph Co.
The constitution, in prohibiting the taking or damaging of private property for public use without just compensation, recognizes the right of the owner of property damaged by a public work to recover the amount of such damages. This right may be asserted by the owner as a plaintiff in an action at law where none of his property is actually taken, or as a defendant to an eminent domain proceeding for the condemnation of property actually taken. (County of Mercer v. Wolff,
Cases which have followed the rule in the Rigney case and illustrate its application are: Chicago and Eastern IllinoisRailroad Co. v. Loeb,
An illustration of a case of damage without injury mentioned in the Rigney case, for which no action would lie at common law and for which the constitution provided no remedy, was the building of a jail, police station, or the like, causing a direct depreciation in the value of neighboring property.Frazer v. City of Chicago, supra, was an action to recover damages for the erection and maintenance of a small-pox hospital across the street from the plaintiff's land. Barrows v. City of Sycamore, supra, was an action to recover damages for the erection of a standpipe 15 feet in diameter and 135 feet high in the intersection of two streets. The plaintiff was the owner of a hotel on the corner, and her declaration charged damages to the building because of depreciation in its value on account of the danger that the standpipe would fall or be blown over on the building and destroy or injure it or would burst and flood the building with water. Doyle v. City of Sycamore,supra, was an action of the same kind, for depreciation in the value of real estate caused by the erection and maintenance of the same standpipe as in the last mentioned case. In each of these cases the declaration was held not to state a cause of action. These were common law actions. City of Winchester v.Ring, supra, was an eminent domain proceeding to condemn for a cemetery a tract of 11.57 acres of land in the northwest corner of the appellant's farm. The owner's residence and farm buildings were 400 feet east of the tract sought to be condemned. Compensation for the land taken was fixed at $200 an acre and damages to the land not taken at $700. One ground for the land owner's appeal was that the damages for the land not taken were inadequate. It was held that there was no disturbance of a property right, and that the damage claimed merely affected the convenience, comfort or sensibilities of the occupants of the property, was not capable of proof or susceptible of measurement, was not different in kind but only in degree from that suffered by the people of the neighborhood, *549 was speculative and remote, and was therefore not within the constitutional provision.
The burden of proof was on the appellee to show damage to the part of the land not described in the petition and not included within the three-rod strip, and the ultimate fact which he was required to prove was a depreciation of the market value of the land because of conditions which would furnish the basis for a common law action. He must prove the same facts which he would be required to prove in a common law action. If any supposed element of damage is not a proper subject of proof or of consideration in the common law action, it is not a proper subject of proof in the eminent domain proceeding or of consideration as an element affecting the market value. The cases cited established beyond doubt that depreciation in market value will not, alone, sustain a claim for damages. The depreciation must be from a cause which the law regards as a basis for damages. "Testifying to amounts of damage where there is no basis of damage is of no value as evidence." (MutualUnion Telegraph Co. v. Katkamp,
Whether the line would expose persons and stock to danger was a question of fact, (Telluride Power Co. v. Bruneau,
The judgment is reversed and the cause remanded.
Reversed and remanded. *552