Illinois Power Co. v. Wieland

Full title: THE ILLINOIS POWER COMPANY, Appellant, vs. GOTTLIEB WIELAND et al…

Court: Supreme Court of Illinois

Date published: Feb 16, 1927

155 N.E. 272 (Ill. 1927)

155 N.E. 272

Opinion

No. 17992. Reversed and remanded.

Opinion filed February 16, 1927.

APPEAL from the County Court of Sangamon county; the Hon. ORAMEL, B. IRWIN, Judge, presiding.

WILLIAM L. PATTON, WALTER MCC. ALLEN, and HENRY A. CONVERSE, for appellant.

B.L. CATRON, and HARLINGTON WOOD, for appellees.

Mr. JUSTICE HEARD delivered the opinion of the court:

Appellant, a public service corporation, having first obtained from the Illinois Commerce Commission a certificate of convenience and necessity for the construction of a rural electric transmission line, filed its petition in the county court of Sangamon county against appellees to acquire by condemnation a right of way for the construction of such line for the conveyance of electric energy for light and power purposes, for local tap-service, over portions of the premises of the several appellees heretofore devoted to highway purposes, by placing poles upon a ten-foot strip in the highway in front of the premises of appellees and running three wires from pole to pole above the surface of the highway, no part of the premises of any appellee to be taken except the area in the highway occupied by the poles, the wires to run longitudinally with and in the highway, and with no encroachment upon or invasion of any land of any appellee which lies beyond the limits of the highway. The petition sought exclusive use (subject to the existing highway easement) of the area to be actually occupied by the poles, but expressly averred that petitioner did not seek to acquire exclusive use of any other part of the land in the highway, but only the right to the use of an easement in, upon and over the balance of the ten-foot strip between the poles for the suspension thereover of its wires and the necessary travel to and fro for maintenance, repair and replacement. The several ten-foot strips in the highway were specifically described in the petition, and there were attached to the petition, as exhibits, plats showing the proposed location of the poles as to each tract. After motions by the several appellees to dismiss the petition had been made and overruled by the court, each appellee filed a cross-petition claiming damages to land beyond the limits of the highway and not to be taken, — Wieland to a tract of 50 acres, Cartwright to a tract of 22 acres, Smith to a tract of 5.31 acres and Haensel to a tract of 122 acres. A jury trial was had and verdicts were returned by the jury as follows: Wieland, land taken to be occupied by two poles $0.12, depreciation of land in highway $24.88, damage to land outside highway $75, total $100; Cartwright, land taken to be occupied by eleven poles $0.66, depreciation of land in highway $69.34, damage to land outside highway $75, total $145; Smith, land taken to be occupied by two poles $0.12, depreciation of land in highway $9.88, damage to land outside highway $50, total $60; Haensel, land taken to be occupied by twenty-eight poles $1.68, depreciation of land in highway $68.32, damage to land outside highway $75, total $145. Motion for a new trial having been overruled and judgment entered on the verdicts, appellant has appealed to this court.

The lands in question are situated about five miles east of Springfield. The Wieland, Cartwright and Smith tracts have a frontage upon State Route 10 of 500 feet, 1750 feet and 450 feet, respectively. There are two Haensel tracts, one with a frontage on the Clear Lake road of 1120 feet and the other a frontage of 3325 feet on a north and south road. The Cartwright tract of 22 acres is farm land, with two dwelling houses, barn, filling station, automobile repair shop and garage thereon. The Wieland tract is used for farming, and has a house, a wash house, chicken house, corn-crib, machine shed, barn and silo thereon. The Smith tract has a house, garage and two chicken houses and is used as a fruit farm. The Haensel tract is ordinary farm land.

Each appellee testified solely in support of his own cross-petition and gave in a lump sum his estimate of the damage which the ten-foot strip and his land outside of the highway would sustain, except that Smith testified that he did not think that his property in the highway would be damaged. The only other witness called by appellees testified that he did not see where the building of the power line in the ten-foot strip out in the highway would interfere in any way whatever with a farm within the fence. Appellees did not itemize the elements which entered into their estimates of damages, but each of them gave as elements which they took into consideration, one or more of the following: unsightliness of the poles, the danger of having to trim trees, that it would require more labor to cut weeds and grass around the poles, and that the line would interfere with access to the premises. One of the witnesses testified that the line might interfere with trimming his hedges. The evidence does not show how it would be possible for the maintenance of the line to interfere with the trimming of a hedge growing on the line between the road and the farm. There is no evidence that the building of the line will in any manner interfere with ingress or egress to or from appellees' premises or in anywise render them less accessible. On the contrary, it is stipulated that the line will be so constructed as not to do so. There is no evidence that the line as constructed will interfere with any trees of appellees' growing on or along the right of way. There was one tree which the evidence showed the line might touch, but it was stipulated that at that particular point the line would be built so high as not to interfere with the tree. While injuries necessarily and actually inflicted upon trees may be considered by the jury and included in the estimate of damage, the jury have no right to take into consideration any damages which are merely speculative and which are remotely contingent. TriState Tel. Co. v. Cosgriff, 124 N.W. 75.

It is contended by appellees that the unsightliness of the poles is a proper element to be taken into consideration in estimating the damages, and cite in support of this contention Board of Trade Tel. Co. v. Darst, 192 Ill. 47. The answer to this contention is two-fold: First, there is no evidence in the record that the poles, when the construction is complete, will be unsightly; and second, while in the Darst case language not necessary to a decision of that case is used which supports that contention, such language is not in harmony with either the previous or subsequent decisions of this court. ( Rigney v. City of Chicago, 102 Ill. 64; Frazer v. City of Chicago, 186 id. 480; City of Winchester v. Ring, 312 id. 544; Otis Elevator Co. v. City of Chicago, 263 id. 419; Illinois Power and Light Corp. v. Talbott, 321 id. 538; Same v. Cooper, 322 id. 11; Same v. Parks, 322 id. 313; Same v. Peterson, 322 id. 342; Illinois Central Railroad Co. v. Trustees of Schools, 212 id. 406.) In City of Winchester v. Ring, supra, it was held that the right to damages must be based on the ground that a right of property has been disturbed and cannot be awarded for an injury to the convenience or feelings of the owner, and that the location of a cemetery in proximity to the farm of appellant was a damage which affected the feelings of the individual owner, only, and varied with the sentiments of each particular individual, and was not subject to proof or measurement and therefore not compensable. In Illinois Power and Light Corp. v. Peterson, supra, it was held that the unsightliness of the tower and transmission line involved no physical disturbance of a right of property, but was so remote, speculative and uncertain as to afford no basis for the allowance of damages.

To entitle a claimant in a condemnation proceeding to compensation for damages to land not taken he must prove by competent evidence that there has been some direct physical disturbance of a right, either public or private, which he enjoys in connection with his property and which gives it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. The physical disturbance need not be a physical disturbance or direct injury of the tangible object of property rights, but must be a disturbance of a right which the owner enjoys in connection with his ownership of the tangible object. The damage must be direct and proximate and not such as is merely possible or may be conceived by the imagination. ( Illinois Power and Light Corp. v. Talbott, supra; Same v. Peterson, supra.) Testimony as to amounts of damage where there is no basis of damage is of no value as evidence. ( Mutual Union Tel. Co. v. Katkamp, 103 Ill. 420; St. Louis and Cairo Railroad Co. v. Postal Tel. Co. 173 id. 508.) When the evidence in this case is tested by the rules above laid down, it is manifest that it is insufficient to sustain the judgment as to any of the tracts in question in this case.

The judgment of the county court of Sangamon county must therefore be reversed and the cause remanded to that court. The appellant will pay all costs.

Reversed and remanded.