When a railroad company initiates proceedings in Illinois to
acquire land for its road, and a defendant appears and claims
ownership of the tract, and no denial is made to this claim, and
only evidence as to the amount of compensation is presented for the
consideration of the jury, and the jury awards a sum as such
amount, the judgment should either direct the payment of this sum
to such owner or the deposit of the same with the county treasurer
for his benefit.
The Court stated the case as follows:
On June 7 and 10, 1887, respectively, the Atchison, Topeka and
Santa Fe Railroad Company in Chicago, the defendant in error, filed
two petitions in the county court of Cook County, Illinois, to
condemn the right of way through certain lands. The present
plaintiff in error was made a party defendant to each of those
proceedings. He appeared, and in each filed a cross-petition
alleging his ownership of a particular tract and praying specified
damages for its appropriation to the uses of the railroad company.
Thereafter, being a citizen and resident of New Jersey, he filed
petitions and bonds for removal of the cases to the Circuit Court
of the United States for the Northern District of Illinois. The
removal papers alleged a separable controversy between Convers and
the railroad company. After removal, there was a consolidation of
the two cases, and, no one appearing in that court but himself and
the railroad company, the issues were submitted to a jury upon
pleadings of this nature: on the part of the railroad company,
petitions disclosing its proposed right of way, asking an
appropriation of the lands therefor, and an ascertainment of the
damages, and cross-petitions by Convers,
Page 142 U. S. 672
alleging that he was the owner of particular tracts described
within this right of way, and the damages which he would sustain by
their appropriation by the railroad company, and praying
compensation therefor. To the averments in the pleadings on either
side there was no formal denial, and upon these pleadings the case
went to trial. The jury found the amount of damages to be $12,000.
The verdict, after describing the lands, recited:
"And that the owners and parties interested therein are entitled
to the sum of twelve thousand dollars, the value of the land taken
and all improvements thereon, in full compensation for the
same."
Upon such verdict, the plaintiff in error moved for a judgment
in his favor for $12,000, the total amount of the damages, but this
was refused, and the judgment which was entered ignored him, and
decreed that for the particular tracts described,
"the sum of money awarded by the jury in and by their said
verdict to the owners and parties interested in the property above
described is a just compensation for the taking of said premises
for the railroad purposes of the petitioner herein and for all
damages to property not taken. And it is further ordered that the
petitioner pay to the County Treasurer of Cook County, Illinois,
for the benefit of the owners and parties interested in the
premises above described, the sum of twelve thousand dollars
($12,000), being the amount awarded by said jury in and by their
said verdict. It is further ordered, adjudged, and decreed that
upon the making of said payment to the said county treasurer, the
petitioner, the Atchison, Topeka and Santa Fe Railroad Company in
Chicago, may enter upon the premises above described and the use of
the same for railroad purposes."
To reverse such judgment, Convers sued out a writ of error from
this Court.
Page 142 U. S. 673
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The single question in this case is whether the verdict and
judgment responded to the issues tendered by the pleadings. A bill
of exceptions was prepared showing that the testimony presented to
the jury was simply as to the damages resulting from the
appropriation of the proposed right of way by the railroad company,
and that no testimony was offered by Convers as to the extent and
nature of his title, and none by the railroad company in any manner
challenging it. By the
Page 142 U. S. 674
express language of the verdict, the amount found by the jury
was the total amount of compensation due for the appropriation of
this right of way through the particular tracts claimed by Convers.
As that matter was properly determined, there is no necessity for a
new trial, or further inquiry as to the amount of damages. But upon
the pleadings we think a judgment ought to have been entered in
terms in favor of Convers for such damages, or at least one
directing their appropriation to him personally, and that the
question as to who was entitled thereto ought not to have been by
the form of the judgment left open to further inquiry.
The bill of rights of the Constitution of Illinois (Constitution
1870, art. 2, sec. 13) declares:
"Private property shall not be taken or damaged for public use
without just compensation. Such compensation, when not made by the
state, shall be ascertained by a jury as shall be prescribed by
law."
The eminent domain act, passed under this constitutional
provision (Revised Statutes, Illinois, 1874, c. 47, p. 475),
directs in terms that just compensation for private property taken
"shall be ascertained by a jury as hereinafter prescribed." Section
1. The procedure thereafter provided was a petition by the party
authorized to take the property to a judge of the circuit or county
court, describing the property and naming the owners appearing of
record, if known, or, if not known, stating that fact, and praying
that the compensation be assessed. Sec. 2. In the one petition any
number of parcels of property might be included, and the
compensation for each assessed separately by the same or different
juries. Sec. 5. Process was to be served, as in cases in chancery,
Sec. 4, a trial had, and the verdict, or "report of the jury," as
it is called, was "to clearly set forth and show the compensation
ascertained to each person thereto entitled." Sec. 9. The oath to
be taken by the jury contemplated also the same separate
ascertainment. Sec. 8.
"SEC. 10. The judge or court shall, upon such a report, proceed
to adjudge and make such order as to right and justice shall
pertain, ordering that petitioner enter upon such property, and the
use of the same, upon payment of full compensation, as ascertained
as aforesaid."
Section 11
Page 142 U. S. 675
adds that "any person not made a party may become such by filing
his cross-petition," and that his rights "shall thereupon be fully
considered and determined." Section 14 is as follows:
"Payment of compensation adjudged may, in all cases, be made to
the county treasurer, who shall, on demand, pay the same to the
party thereto entitled, taking receipt therefor, or payment may be
made to the party entitled, his, her, or their conservator or
guardian."
These sections make it clear that under the pleadings the
judgment entered upon this report or verdict should either have
directed payment to the plaintiff or that the deposit with the
county treasurer was for his benefit. In other words, Convers'
right to this money should have been settled by the judgment, and
not left open to further inquiry.
It is unnecessary to consider what rule obtains when the
railroad company puts in issue the fact or extent of the claimant's
title or interest. It is enough to dispose of the case here
presented.
While the precise question does not appear to have been
determined by the supreme court of the state, its rulings are in
this direction.
Bowman v. Railway Company, 102 Ill. 459;
Johnson v. Railway Company, 116 Ill. 521;
Suver v.
Railway Company, 123 Ill. 293. In the first of these cases, it
was held that the provision in the statute that several tracts of
lands belonging to different per might be included in one petition,
and the compensation for each separately assessed by the same or
different juries, extended to cases where different persons had
distinct interests in the same tract, and that in such cases the
damage to each might be separately ascertained. In the second the
court decided that each owner might have his damages assessed
before a separate jury, and was entitled to his single appeal from
the judgment, and also that, if a cross-petition set forth only
evidence of claimant's title, and was uncertain in the description
of his interest in the property, such defect was ground for
demurrer, but did not justify a dismissal on motion. And in the
third, the petition of the railroad company averring that four
persons named had or claimed an interest in a tract described, and
there being
Page 142 U. S. 676
no other averment in the petition or cross-petition of separate
interests in such parties, a finding of the gross amount to be paid
to them was sustained. In that case also it was held that certain
defects alleged to exist in the petition must, to be taken
advantage of, be challenged by demurrer. These cases all indicate
that proceedings under the eminent domain act may be divided into
distinct controversies between the railroad company and each party
owning or having a separate interest in any tract, and that a
controversy, thus separated, is to proceed according to the
ordinary rules concerning trials, with a certainty in verdict and a
finality in judgment. They sustain the conclusion we have
heretofore expressed in this case.
The judgment will be
Reversed, and the case remanded, with instructions to enter
a judgment in terms securing to Convers the amount of the damages
found by the jury.
THE CHIEF JUSTICE took no part in the decision of this case.
