delivered the opinion of the court:
This is an appeal from a judgment condemning certain lands of appellant for opening and extending Center street, in the village of DesPlaines, fifty feet wide, from its present terminus at Prairie street to Ellingwood street, and assessing benefits upon land not taken.
It is objected that the estimate of costs was not properly itemized. This objection was No. 83 in a printed form containing one hundred and ten objections, which was filed and to which three typewritten objections were added. Certain objections were sustained and all the others were overruled and the commissioners’ report was referred back to them with directions to re-cast the assessment roll. This was done, and upon the roll as re-cast being, filed, the appellant filed this objection to the roll as re-cast and asked to argue the objection, stating that he should have argued it on the hearing of the other objections and that it was an oversight that he did not do so.- The court refused to allow argument of any objections except as to whether the assessment roll had been re-cast in accordance with the order of the court. Where the record shows that objections have been filed, it will be presumed, in the absence of anything appearing to the contrary, that the objector relied on each one of the objections made, but where it is shown that the party did not, in fact, rely upon all of the objections but only presented some of them to the court, those which appear not to have been urged as reasons upon which the court should act will be regarded as waived. (Village of Oak Park v. Swigart,
It is urged that the president of the village had not filed his official bond at the time he apрroved the ordinance. It is not claimed that he was not acting as mayor and the question of his title cannot be raised in this proceeding. Betts v. City of Naperville,
Appellant argues that the ordinance is unreasonable and void. Section 4 of the ordinance provides that the commissioner of public works, upon the entry of an order granting the village the right to take possession of the property, shall forthwith remove any buildings or parts thereof, or other obstructions which may be located on the land, and put the surface of the land in such condition that it can be used for public traffic, and that such work shall be paid for out of the general fund of the village.. It is argued that no drainage to carry away storm wаter, no pavement and no sidewalk in front of the lots are provided for, and that the mere opening of the street, without improvement to make it available, would be of little practical benefit to property, and the appellant relies upon the case of City of Chicago v. Arnold,
Another objection urged is that appellant, is the owner of several seрarate tracts or lots and that the assessment was against all together and was not apportioned, as required by the statute. The statute requires the assessment roll to give a description of each lot, block, tract or parcel of land and the amount assessed as special benefits thereto: Benefits cannot properly be assessed in gross on several tracts. (Louisville and Nashville Railroad Co. v. City of East St. Louis,
The commissioners’ fees were fixed at $300, and that amount, in addition to $900, (the amount of the estimate of the costs of the improvement,) was included in the assessment roll. Section 14 of the Local Improvement act requires the fees of the commissioners tо be fixed in advance by the court, and section 94 provides that the entire costs and expense of making the assessment, including the fees of the commissioners, shall be paid by the municipality out of its general fund, provided that in cities, villages or towns having less than 100,000 population the ordinance may provide that a certain sum, not to- exceed six percentum of the amount of the assessment, shall be applied toward the payment of the costs of making and collecting the assessment. Six percentum of the cost of the improvement was a little more than $900, for the payment of which amount by special assessment the ordinance provided. This was the limit of the costs which could be collected by special assessment, and the additional costs the village must pay out of its general fund.
The appellant objected to two plats which were offered in evidence by the appellee and admitted. In regard to the first, it was testified that except as to the scale it was a correct survey of the land in the block, which included the improvement ; and in regard to the second, that it correctly delineated the proposed improvement, and that the dimensions indicated were similar to those on the plat of the township of Maine in the recorder’s office. The maps indicated with reasonable certainty the location of the improvement and the adjoining streets and property, and thе fact that the first was not drawn to an exact scale and that the dimensions shown by the second were not proved with precise accuracy could not have prejudiced the appellant.
Objection is made that the appellant was not permitted to show who, in fact, prepared the assessment roll. It was immaterial who preparеd the roll. Betts v. City of Naperville, supra.
It was not improper to refuse to permit the appellant to ask his witnesses if the appellant’s property would be benefited by the improvement if the appellant continued to use it for the purposes for which it had been used for the last ten years. The question to be determined was whether the improvement would enhance the property in value, and this question was not to be limited to the purposes for which it had been previously used. The court, however, fell into error in refusing to permit witnesses to give their opinion whether property fronting on Prairie street and Ellingwood street would not be injured rather than benefited by reason of the cost of building sidewalks and othеr necessary improvements on the side of such property. This was a question proper to be considered in determining whether the whole property was benefited or not. The court should also have permitted the appellant to inquire whether, taking into consideration the necessary expense of putting in the additional- street improvements which were necessary, the improvement would then be a benefit to the property. While no assessment was being made in this proceeding for these additional improvements of the street, if such improvements were necessary to make the use of the street beneficial to the adjoining property, their cost was a proper element tо be taken into consideration in determining the amount which the property would be benefited by the present improvement.
Complaint is made of the following instruction:
“The court instructs the .jury that the objectors have offered no testimony tending to show that their property has been assessed more than its proportionate share of the cost of said improvement. The prima facie cаse of the petitioner in this respect has not been overcome, and you are instructed that said assessment does not exceed the proportionate share of the cost of said improvement properly chargeable against the lands of said objectors.”
It is insisted that the question of proportionate share of the cost was not a question in the case. Section 23 of the Local Improvement act provides that the court shall ascertain the just compensation to be paid to the owner of each lot, block, tract or parcel of land to be taken or damaged in said proceeding, and shall also determine whether of not any lot assessed in said proceeding for which objections have been filed has been assessed more than it would be benefited by said improvement. In City of Rockford v. Mower,
The appellant requested the following instruction:
“The jury are instructed that in determining the issues in this case you should take in consideration the whole of the evidence and all the facts and circumstances proved on the trial, giving to the several parts of the evidence such weight as you think they are entitled to, and in determining the weight to be given to the testimony of the several witnesses you should take into consideration their interest in the event of the suit, if any such is proved, their сonduct and demeanor while testifying, their apparent fairness or bias, if any such appears, their means of information and their knowledge or lack of it as to the subject matter of this suit, and to give such credit to the testimony of each witness as under all the circumstances such witness seems to be entitled to. When witnesses are otherwise equally credible and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior.”
The court struck out the last sentence and gave the instruction so modified. The modification was proper. The court may tell the jury the various elements which may be taken into consideration in determining the credit оf witnesses, but it is for the jury to determine finally what credit they will give. While it may be true, ordinarily, that among witnesses equally credible those whose means of information are superior should have the greater weight, yet this depends upon the use made by the witnesses of their means of information and the knowledge actually acquired, and may be affected by the number of witnessеs testifying on either side. When the court has informed the jury of the tests which may be applied to the credibility of witnesses and the elements to be taken into consideration in determining their credibility, it is then for the jury to determine, under all the circumstances of the case, to which witnesses they will give the greatest weight, and . not for the court to tell them.
For the errors indicated the judgment will be reversed
and the cause remanded.
Reversed and remanded.
Subsequently, upon petition for rehearing, the following additional opinion was filed:
: In a petition for rehearing the appellee submits that in the statement in the opinion that no issue was made in regard to the proportionate cost of the improvement the court misapprehended the state of the record, because one of the appellant’s objeсtions was that “the said assessment upon the property of said objectors exceeds the proportionate share of the expenses of said improvement equitably and fairly chargeable upon said property.—(Record 27, 28; not abstracted.) ” Our apprehension of the record is derived from the abstract prepared by the appellant and accepted as correct by the appellee. That abstract does not show the objection above quoted, and the appellee did not supply the omission, if it was an omission. Under such circumstances the court does not search the record to ascertain the issues but acts entirely upon the abstract. The court did not misapprehend the record and a rehearing is denied.