Opinion
No. 16884. Judgment affirmed.
Opinion filed December 16, 1925 Rehearing denied February 17, 1926.
APPEAL from the Circuit Court of Cook county; the Hon. OSCAR M. TORRISON, Judge, presiding.
GEORGE W. THOMA, (ROY MASSENA, and CHARLES W. HADLEY, of counsel,) for appellants.
ISHAM, LINCOLN BEALE, and GARDNER, FOOTE, BURNS MORROW, (WILLIAM A. MORROW, and WALTER M. FOWLER, of counsel,) for appellee.
On May 14, 1924, appellee, a public utility corporation, filed its petition in the circuit court of Cook county seeking to condemn a right of way for the purpose of constructing an electric transmission line, pursuant to an order of the Illinois Commerce Commission. After the denial of preliminary motions calling in question appellee's petition and its right to maintain the proceedings, a jury was called to ascertain and determine the just compensation to be paid, and a verdict was returned assessing such compensation at the sum of $22,550, and judgment was entered thereon. To review this judgment appellants have perfected an appeal to this court.
It is contended by appellants that the court erred in not sustaining appellants' motion to dismiss the petition for condemnation. This court, on motion of appellee, on June 15, 1925, expunged from the record of this case what purported to be a bill of exceptions on preliminary matters heard before the court without a jury. The record as it now stands does not show the motion or rulings of the court and exceptions thereto, and while the motion is copied in the record by the clerk, it has been repeatedly held that in order for this court to pass upon motions made in a cause they must appear in the bill of exceptions and be certified by the trial court. ( St. Louis and O'Fallon Railway Co. v. Union Trust and Savings Bank, 209 Ill. 457. ) A motion in arrest of a condemnation judgment does not preserve for review the action of the court in denying a motion to dismiss the petition, if the motion was based upon matters appearing outside of the record. Under a motion in arrest of judgment only such errors as appear on the face of the record, or which should but do not appear on the face of the record, can be urged in arrest of judgment. All the preliminary proceedings had upon the motion to dismiss having been expunged from the bill of exceptions, there is no record here which shows any error which will sustain a motion in arrest of judgment. Cella v. Chicago and Western Indiana Railroad Co. 217 Ill. 326.
It is contended by appellants that the verdict of the jury was contrary to the evidence in the case. The land sought to be taken is a strip 150 feet wide and practically one mile in length, in the outskirts of Calumet City, formerly known as the village of West Hammond. There are no improvements on the property in question except a State road which passes through it, and it is about one mile from any of the built-up portions of the city. The land was not used for any purpose at the time of the trial nor does the evidence show any availability for any other than speculative use in the near future. Portions of it are covered with water during spring and autumn, and there is testimony to the effect that water stands in the ditches during the entire time. Appellee called witnesses who placed a value upon the land ranging from $11,500 to $18,400, while one of appellants' witnesses placed a value of $121,000 thereon. The court and jury viewed the premises. The verdict is within the range of the testimony heard in open court. The court approved the verdict by overruling the motion for new trial and entering judgment thereon, and such judgment will not be reversed on appeal unless this court can see from the record that the jury were clearly and palpably mistaken or that the verdict was the result of passion and prejudice. ( Public Service Co. v. Leatherbee, 311 Ill. 505.) Applying this rule, we do not feel it to be our duty to set aside the judgment upon the ground that it is contrary to the weight of the evidence.
A portion of these premises had been subdivided into lots, and it is contended by appellants that the court should have required the jury to fix a valuation upon each one of these lots separately. The lots were 25 feet in width and constituted at the time of the trial one entire tract owned by appellants. There was nothing to distinguish one lot from another. A lot had no present separate use and no separate use to which it could be put in the near future. There were no streets, gas, water, sewer, sidewalk or any other improvements within a mile, and the weight of the testimony is to the effect that the lots are more valuable when considered as a part of the entire tract than when considered as single lots. We do not think that there was error in this respect.
Complaint is made as to the admission of evidence. The evidence covered a wide range as to value and sales of properties in other parts of the city, and some evidence was admitted on behalf of both parties which was not strictly competent. On the whole, however, we think the case was fairly presented to the jury upon the evidence and that no reversible error was committed by the court in its rulings in that respect.
Appellants complain that the first and second instructions given at the request of appellee told the jury that appellee was authorized by the Commerce Commission to acquire the property in question by condemnation. The question of the right of appellee to acquire the property was a preliminary question and had been determined before the jury was called. It was not proper to instruct the jury upon this question, with which the jury had nothing to do, but the appellants were not prejudiced thereby.
It is also contended that the second instruction is erroneous because it told the jury that there was but one matter to be considered, namely, the amount of compensation to be paid for the property sought to be taken. The rights of appellants among themselves were not determined prior to the calling of the jury. The jury may determine the value of the respective interests of appellants as between themselves where such interests are established, but where such interests are not established the jury has but one question, namely, the amount of compensation to be paid to all the owners and parties interested. The judgment in this case provides that the money may be paid to the county treasurer for the benefit of the owners of and parties interested in the property. This arrangement fully protects the rights of all parties. In City of Chicago v. Gage, 268 Ill. 232, this court held that the compensation money is deemed a substitute for the land, and it also held that when the petitioner pays the money to the county treasurer directly, its connection with the case ceases and it is no further concerned with it.
Complaint is made of the giving of other instructions, but such have heretofore been approved by this court.
Complaint is made of the refusal of the court to give some instructions offered by appellants. We have carefully examined each of them, and find that in each instance the instruction was either misleading, inaccurate or contained incorrect statements as to the law. The instructions, as a series, accurately instructed the jury as to the principles of law which governed the case.
It is contended that the judge was absent from the court room during the argument of counsel. This contention can not be considered as such absence is not shown by the bill of exceptions.
Complaint is made of the closing argument of counsel for appellee. While there are some statements in the argument which should not have been made, no objection was made to them. The statements to which objections were made were, in general, legitimate argument based upon the evidence.
Finding no reversible error in the record the judgment of the circuit court will be affirmed.
Judgment affirmed.