author: Mr. Justice Scholeield

text:
    Martin B. Thompson v. Calvin H. Frew.

      Filed at Springfield October 1, 1883.

    1. Partition—where a part of the premises are under mortgage— what title passes in case of a sale. Where laucl is sold under a decree in a proceeding for partition, the court having jurisdiction of the subject matter and of the parties in interest, the purchaser will acquire the entire title,— the interest and estate of all the parties,—and this though some of the shares were mortgaged; and the failure of such purchaser to make defence to a bill to foreclose the mortgage, which he might have made, will not preclude him from acquiring title under a subsequent decree of sale, in a partition proceeding.
    2. Same—effect of subsequent foreclosure on- rights of purchaser in partition. On bill to foreclose a mortgage on a part interest in land, the court has no power, in its decree, to nullify, reverse or modify a decree of sale in a proceeding for partition of the same land, where no such purpose is indicated in the bill, and the parties in the partition case are not brought before the court for that purpose.
    3. Same—power and duty of court as to mortgage on part interest. In decreeing a partition of land, the court has the power, and it is its duty, to provide for the satisfaction of any valid mortgage upon the interest of any one of the tenants in 'common, in case a sale of the premises is ordered.

      i. Same—power to determine as to distribution of proceeds of sale. Where a sale is decreed on partition, it is competent for the court to investigate all .questions of conflicting- or controverted titles to the premises, and determine who is entitled to receive the whole or any part of the proceeds of the sale; and when the court, on the petition of a purchaser who is not a party to the suit, determines that he is entitled to a certain share thereof, and orders that he may retain the same as his own, such finding and order are conclusive in a collateral proceeding.
    5. Same—mode of procedure in case of foreclosure. A mortgagee of an undivided interest in land may have a decree of foreclosure for breach of condition, during the pendency of a suit for the partition of the premises, but the decree can only be enforced in conformity with the adjudication in the partition proceeding,—that is, in case of division, to sell the, part assigned to the mortgagor, and in case of sale, to appropriate the proceeds which would otherwise go to the mortgagee pro tanto, in satisfaction of the amount due upon the mortgage.
    6. Where a valid decree of partition of land is made and a sale of the premises ordered, and a disposition made of the proceeds of the sale, so much of a decree of foreclosure of a mortgage upon an interest in the land as directs a sale of the property is invalid, for want of jurisdiction in the court, of that question, it having been previously withdrawn and exercised in the decree of sale in the partition suit.
    7. Same—when purchaser protected against errors, etc. A purchaser of land under a decree of partition, who is not a party to the suit, is not affected by any mere irregularity in the proceeding not going to the jurisdiction of the court. If the court had jurisdiction of the subject matter and of the parties in interest, such a purchaser under a decree of sale will be protected.
    8. Same—decree binds administrator of a party. Where a proceeding for the partition of land is had, making a mortgagee of an interest in the premises a party, his administrator claiming title by purchase under a decree for the foreclosure of the mortgage, will be bound by the decree and sale in the suit for partition.
    Writ op Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    This was a hill in chancery, exhibited in the Ford circuit court, by Martin B. Thompson, administrator of the estate of Jonas F. Randolph, deceased, against Calvin H. Frew, for partition. The court decreed, on final hearing, in favor of the defendant, and the complainant has thereupon sued out' this writ of error.
    The material facts are, in brief, as follows : The Illinois - Central Railroad Company, being the owner of all that part of the south-east quarter of the north-east quarter of section 18, township 23 north, range 10 east, of the third principal meridian, lying west of the track of the Illinois Central railroad, in Ford county, on the 28th of May, 1866, conveyed the same to Loretta Goodrich, and she, on the 3d of June, 1868, conveyed the same to Loretta Goodrich, Caroline H. Goodrich, Theodore E. Goodrich, N. Kniffin Goodrich, Isabel Davis Goodrich, Florence Goodrich, and William Goodrich. On the 5th of June, 1868, Loretta Goodrich, Theodore E. Goodrich and William Goodrich conveyed, by quitclaim deed, all their right, title and interest in the tract to Laura Ann Goodrich. She mortgaged the same interest on the 28th of October, 1868, to Jonas F. Randolph, to secure the payment of a certain promissory note, but the mortgage was not filed for record until January 11, 1869. Meanwhile, on the 14th of December, 1868, said Laura Ann Goodrich (her husband, William A. Goodrich, joining her in the execution of the deed,) conveyed by deed, with special covenants of warranty, the same interest to William Goodrich, and he, on the same day, executed a mortgage on the same interest back to Laura Ann Goodrich, to secure the payment of certain promissory notes. May 13, 1872, Laura Ann Goodrich filed her bill in chancery in the office of the clerk of the circuit court of Ford county, against William Goodrich, to foreclose the last mentioned mortgage. Summons was duly issued and served, and on the 4th of September, 1873, that court rendered a decree of foreclosure, directing a sale of the mortgaged property by the master in chancery. The property was sold by the master in chancery pursuant to the decree, on the 15th of November, 1873, to said Laura Ann Goodrich, and on the 26th of January, 1874, she sold and assigned the certificate of purchase to Calvin H. Frew, to whom the master in chancery executed a deed on the 22d of April, 1875. Carrie A. Goodrich commenced proceedings for partition of the said tract against William A. Goodrich, Laura A. Goodrich and Jonas F. Randolph, to the April term, 1874; of the Ford circuit court. Decree was rendered at that term that partition be made, and' commissioners were appointed for that purpose. The commissioners reported, at the September term, 1874, of the court, that the land was unsusceptible of division. This report was approved by the court at the same term, and a decree was also then entered that the land be sold by the master in chancery. The master in chancery proceeded to advertise and sell the property pursuant to this decree, and on the 17th of March, 1876, he sold the same to Galvin H. Frew, and thereafter, on the same day, he executed to him a deed therefor. Meanwhile, before this la*fet mentioned date, namely, on the 1st of August, 1874, Jonas F. Eandolph filed in the office of the clerk of the circuit court of Ford county his hill to foreclose the mortgage so executed to him as aforesaid by Laura Ann Goodrich,.making Laura Ann Goodrich, Calvin H. Frew and Eobert Frew, defendants thereto. It will be assumed that the defendants were properly brought into court. On the 3d of January, 1875, Jonas F. Eandolph died intestate, and soon thereafter Martin B. Thompson was duly appointed by the proper tribunal administrator of his estate. By an order of court made on the 23d of March, 1875, Thompson was substituted as complainant in lieu of Eandolph, and on the 17th of April, 1875, a decree pro confesso was rendered by the court, decreeing a foreclosure and sale of the mortgaged premises, as prayed. On the 26th of June, 1875, the. master in chancery sold the mortgaged premises, pursuant to the decree, to Martin B. Thompson, and on the 24th of January, 1877, he executed a deed to him.
    On the 25th of March, 1876, Galvin H. Frew presented his petition to the court, (notice of which he testifies Thompson had,) averring that he was owner of three-sevenths of the premises purchased by him at the master’s sale, in the suit for partition of Carrie A. Goodrich against Laura Ann Goodrich, William A. Goodrich and Jonas F. Eandolph; that he was not a party to that suit, and praying that he he allowed to retain three-sevenths of the purchase money. The court referred it to the master in chancery to take and report the evidence on this petition, and on the coming in of the master’s report, on the 11th of April, 1876, the court decreed in conformity with the prayer.
    On the 14th of December, 1876, Martin B. Thompson filed his petition in the same case. The petition recites the obtaining of a decree by Laura A. Goodrich against William Goodrich; the sale thereunder to Laura A. Goodrich; the assignment by her of the certificate of sale to Frew, and the master’s deed thereunder to Frew; recites, also, the partition proceedings on the petition for partition by Carrie A. Goodrich against William Goodrich, Laura Ann Goodrich and Jonas F. Randolph, and the sale thereunder, and the petition of Frew for three-sevenths the purchase money thereunder, and the decree granting his petition; recites, also, the foreclosure of the mortgage from Laura A. Goodrich to Randolph, and the sale and deed thereunder to him, (Thompson) as administrator. Petitioner .prays for a decree against Frew, requiring him to pay into court the full amount of money received by him under the decree granted in his favor allowing him three-sevenths of the purchase money in said partition case, and that said three-sevenths of said purchase money be paid to him (Thompson.)
    The answer of Frew to said petition, filed May 11, 1877, denies that petitioner obtained a valid decree of foreclosure of the Goodrich-Randolph mortgage, but avers that petitioner fraudulently obtained a pretended decree, by obtaining the appearance of Laura A. Goodrich through misrepresentations ; that said appearance was kept off the files, so that said Frew, her solicitor, did not know she had been brought into court; avers that on December 14, 1868, Laura Ann Goodrich sold and conveyed her three-sevenths of said premises to William Goodrich, who then resided on the land, and continued to reside, yet he was not made a party to the suit foreclosing the Goodrieh-Randolph mortgage; that the defendant had no notice that a decree was to be taken; that neither the note nor mortgage was offered at the hearing in said foreclosure suit; that Laura A. Goodrich’s husband did not join her in the mortgage; that the decree was for more than was due; that the master in chancery who made the sale was Thompson’s attorney, and gave him advice in said matter; that the land was described in three separate pieces, yet the master sold the same en masse, without offering separately; that the Randolph mortgage contained a provision that it should be released as to this land when Laura A. Goodrich paid off the Wood and Frew mortgage on other land covered by the Randolph mortgage; that on March 21, 1S76, the Wood and Frew mortgage was released, and demand made on Thompson to release the Randolph mortgage as to this land, which he refused to do; that defendant became the owner of three-sevenths of said land through the foreclosure of the mortgage from William to Laura Goodrich; that defendant purchased under the partition proceedings, with the express understanding that he should receive a credit of three-sevenths; that when the master reported said sale he filed a petition that he be allowed such a credit, and the court made a decree granting his petition; that' Randolph’s attorney appeared and cross-examined witnesses at'the hearing of said petition; that said Thompson had notice of said petition ; denies that Thompson is justly entitled to three-sevenths of said money. The answer w'as sworn to. Replication was filed to this answer. No hearing has yet been had on the issue thus presented.
    On the 22d of April, 1879, Thompson filed a bill of review in the Ford circuit court, in the partition suit. To this Frew filed a plea denying the right of Thompson to have the record reviewed, because the mortgage under which he claimed was void. There does not appear to be any final order or decree in this case, in the record, although it is asserted by defendant in error that the court rendered a decree dismissing the bill of review.
    On the 2d'of June, 1876, Calvin H. Frew filed a bill of review in the Ford .circuit court, in the foreclosure case, wherein Thompson was complainant and they were defendants, and they subsequently filed a petition in the same case to set aside the master’s sale to Thompson. Demurrers were sustained to both, and on appeal to this court that ruling was affirmed. (See Goodrich et al. v. Thompson, 88 Ill. 206 ; Same v. Same, id. 547.) The decisions in these cases, however, in nowise affected the question of the validity or invalidity of the decree of foreclosure, or of the sale thereunder. It was simply held, in the one case, that the bill was not properly framed as a bill of review, and in the other, that the evidence not being preserved in the record, it could not be known that the court erred in denying the prayer of the petition,—for aught that appeared no evidence had been offered in support of it.
    Mr. M. H. Cloud, for the plaintiff in error:
    Mr. Goodrich and Mr. Frew, by their default, are estopped to deny the validity of the mortgage or the sufficiency of the decree. Manchester v. McKee, 4 Gilm. 17; West v. Krebaum, 88 Ill. 263; Butterfield’s Appeal, 77 Pa. St. 195; Massachusetts Mutual Life Ins. Co. v. Kellogg, 82 Ill. 614; Gault v. Hoagland, 25 id. 268.
    The defendant had an opportunity to make a defence, and. can not now be heard to assert any defence he could have made in the foreclosure proceedings. Higgins v. Bullock, 73 Ill. 205; Freeman on Judgments, sec. 256; Werner v. Heintz, 17 Ill. 26; Blackburn v. Bell, 91 id. 434; 6 Wait’s Actions and Defences, pp. 784, 786, secs. 26—29.
    To permit Frew to question this decree in this manner, would be. to override the long established doctrine of the courts that the records import absolute verity. Bartlett v. Wolf, 70 Ill. 76; Searl v. Galbraith, 73 id. 269.
    Frew purchased pendente lite, and thereby became a party, and is chargeable with notice of any defect in the proceeding. Loomis v. Riley, 24 Ill. 307.
    The court was required to find and declare the rights and interests of each of the parties before the appointment of commissioners. Rev. Stat. 1874, p. 750, secs. 15, 16, 19; Greenup v. Sewell, 18 Ill. 54; Tibbs v. Allen, 27 id. 128.
    A valid decree of partition is an essential preliminary to an order of sale. Denning v. Clark, 59 Ill. 218.
    To sustain his deed, Frew must show a valid decree. Johnson v. Baber, 35 Ill. 98; Chase v. Dana, 44 id. 262.
    There is nothing in.the record in the partition suit to show that the court passed upon the Randolph mortgage in any manner. It was error to declare title in Frew, and quiet the title in hinn Iberg v Webb, 96 Ill. 415.
    Plaintiff in error, as administrator of Randolph’s estate, purchased the premises to secure a debt due the estate, and the premises became assets in his hands. Rev. Stat. 1874, p. 626, sec. 38.
    Mr. Calvin H. Feew, pro se:

    If the decree of foreclosure was void, it may be impeached in this proceeding. Campbell et al. v. McCahan et al. 11 Ill. 45 ; Goudy v. Hall, 30 id. 109 ; Whitney v. Porter, 23 id. 445.
    The mortgage of Laura A. Goodrich, dated October 29, 1866, was void, for the reason her husband failed to join in its execution. Merritt v. Yates, 71 Ill. 636; 1 Jones on Mortgages, sec. 102; Black v. Dressell, 20 Kan. 153; Edwards v. Taliafero, 34 Mich. 13; Elder v. Jones, 85 Ill. 384; Herdman v. Pace, id. 345 ; Lewis v. Graves, 84 id. 205; Morrison v. Brown, 83 id. 562.
    If void, the court had no jurisdiction to foreclose the same, and the decree is a nullity. Freeman on Judg. secs. 117-120.

      As the partition decree sold the premises discharged of the mortgage lien, the defendant in error took a perfect title as against such mortgage. Kilgour v. Crawford, 51 Ill. 252; Denning v. Clark, 59 id. 218.
    On April 11, 1876, the court decreed that this defendant was the owner in fee simple of said three-sevenths, prior to the master’s sale, and was entitled to three-sevenths of the purchase money, of which the complainant had notice, and consented both to the filing of the petition and granting of the decree, and can not now be heard in a court of equity to claim title to the.same premises, but is estopped; otherwise a great injury would result to the defendant. Flower et al. v. Elwood et al. 66 Ill. 440; Dorlarque et al. v. Cress et al. 71 id. 380; The People v. Brown et al. 67 id. 435; Davidson v. Young et al. 38 id. 146.
    A purchaser not a party to the suit is not affected by errors and irregularities in the proceeding, without actual notice. Swiggart et al. v. Harber, 4 Scam. 464; Rigg v. Cook, 4 Gilm. 336; McCormick v. Wheeler, 36 Ill. 119; Durham et al. v. Heaton, 28 id. 264; Rorer on Judicial Sales, sec. 589; Spring v. Kane, 86 Ill. 580; Harris v. Lester, 80 id. 307; Townsend v. Cox, 45 id. 401; Iverson v. Loberg, 26 id. 179; Bliss et al. v. Heasty et al. 61 id. 338; Mulford v. Stalzenback, 46 id. 303.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The decree of foreclosure in favor of plaintiff in error did not affect the interest which the defendant in error derived by the master’s deed under the partition sale, for the plain reason that the decree of foreclosure was rendered on the 17th of April, 1875, and the master’s sale under the decree for partition did not occur until the 17th of March following (1876.) The failure to make defence as to the interest affected by the foreclosure,—i. e., that which defendant in error obtained by the master’s deed under the decree foreclosing the mortgage of William Goodrich to Laura Ann Goodrich,—can, upon no principle that we are aware of, be held to preclude the defendant in error from obtaining title to the whole of the property at the master’s sale under the decree for partition. The interests are totally distinct and independent of each other. Randolph was a party to the decree for partition, as the record shows, and he is, therefore, bound by it. Defendant in error was not a party to that decree, and he is, therefore, affected by no mere irregularity not going to the question of jurisdiction. There was jurisdiction of the persons and of the subject matter of the suit, and there was a decree of sale, and this was sufficient to protect defendant in error, whether the prior decree for partition was rendered or not. Hunter v. Stoneburner, 92 Ill. 75; Allman et al. v. Taylor et al. 101 id. 185; Mulford v. Stalzenback, 46 id. 303.

The questions decided in Greenup v. Sewell, 18 Ill. 54, Tibbs v. Allen, 27 id. 128, Sullivan v. Sullivan, 42 id. 315, and McLain v. Van Winkle, 46 id. 406, cited by counsel for plaintiff in error, arose upon error or appeal, in a direct proceeding to reverse the decrees or judgments, and not, as here, collaterally. Plaintiff in error, here, stands in the shoes of Randolph, whose estate he represents, and is therefore affected, as a party, by the decree in the partition case. It can need no authority to prove that* the court could not, in the decree of foreclosure, nullify, reverse or modify the decree in the partition case, no such purpose being indicated by the bill, and the parties in the partition case not being brought before the court for that purpose.

The mortgage was but a lien on the interest covei'ed by it, and it was competent for the court in decreeing partition, and, indeed, it was the duty of the court, if the lien was valid and subsisting,' to provide for its satisfaction in the event of the sale of the interest. The statute expressly provides that “a person having a mortgage, attachment or other lien on the share of. a part owner, shall be concluded by the judgment in partition, so far as it respects the partition and the assignment of the shares, but his lien shall remain in full force upon. the part assigned to or left for such part owner.” (Rev. Stat. 1874, chap. 106, sec. 24, p. 751.) And when the premises can not be divided, but are sold under decree of the court, it’is made the duty of the court to divide the proceeds of the sale according to the interests of the parties. (Rev. Stat. 1874, chap. 106, sec. 31, p. 752.) And, besides this, by section 39, power is also given the court “to investigate and determine, in suits for the partition of real estate, all questions of conflicting or controverted titles,” etc. Where, therefore,; a sale was decreed, it was competent for the court to investigate the claim made by the plaintiff in error, and that made by .the defendant in error, to three-sevenths of the proceeds; and this the court proceeded to-do. Whether in that determination there was error, or whether the question is still pending, we can not now inquire, a direct proceeding by error or bill for review being the only mode by which such inquiry can be made.

When the court acquired, jurisdiction in the partition case, and proceeded to act, the mortgagor was still entitled, in default of performance of the condition of the mortgage, to have a decree of foreclosure, but its decree could, of necessity, only be enforced in conformity with the prior adjudication in the partition proceedings,—i. e., in case of division, to sell the part assigned to the mortgagor, and in case of sale, to appropriate the proceeds, which would otherwise go to the mortgagor, pro tanto, in satisfaction of the. amount due upon the mortgage. By no possibility could the decree of foreclosure, pure and simple, change or materially affect the rights of the parties, or the question of the necessity of a sale, as previously fixed by the decree of partition, or the rights of purchasers under such sale. So much of the decree of foreclosure in the present ease as directs a sale of the property described, is, therefore, invalid, because that court had then no jurisdiction of that question, it having been previously withdrawn and exercised in the decree of sale in the partition suit. To that extent there was wanting jurisdiction of the subject matter.

We see no cause to disturb the decree below. It is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    South Park Commissioners v. Trustees of Schools.

      Filed at Ottawa September 29, 1883.

      Practice—who has the opening and conclusion,' in proceeding to condemn land. In a proceeding to condemn land for public use, and for the ascertainment of the compensation to be made and the damages to he assessed, the petitioner holds the affirmative of the issue to be tried, and consequently is entitled to the opening and conclusion, both in the matter of introduction of evidence, and upon the argument to the jury.
    Writ of Error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. Melville W. Fuller, and Mr. J. B. Barton, for the plaintiffs in error,
    upon the question of the right of the petitioner in the court below to the opening and conclusion, cited Penhuyn Slate Co. v. Meyer, 8 Daly, 62; Neff v. Cincinnati, 32 Ohio St. 215; Fitzpatrick v. City of Joliet, 87 Ill. 62; Wharton on Evidence, sec. 357; Taylor on Evidence, see. 338. The proper test is, says Mr. Baron Alderson, in Amos v. Hughes, 1 M. & Bob. 494, which party would be successful if no evidence at all were given.

      Messrs. Leaming & Thompson, for the defendants in error,
    contended the court below ruled properly in giving the opening and conclusion to the respondent,—the land owner,— citing, as bearing upon that question, Mills on Eminent Domain, sec. 92; Burt v. Wigglesworth, 117 Mass. 302; Parks v. Boston, 15 Pick. 198; Connecticut River R. R. Co. v. Clapp, 1 Cush. 559; Winnisimmet Co. v. Grueby, 111 Mass. 543; Burt v. Merchants’ Ins. Co. 115 id. 1; 1 Greenleaf on Evidence, secs. 76, 77; Mercer v. Whall, 5 Ad. & Ellis, 447; Minnesota Valley R. R. Co. v. Doran, 17 Minn. 188; Sangamon County v. Brown, 13 Ill. 207; Mt. Sterling v. Givens, 17 id. 256; Dunham v. Hyde Park, 85 id. 578.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition in the circuit court of Cook county, filed by the South Park Commissioners in March, 1881, to condemn a certain lot in the town of Hyde Park, owned by the trustees of schools of township 38. Under the act creating the South Park Commissioners the corporation was authorized to take lands within certain limits for park purposes, and to acquire title, by gift, condemnation or otherwise. It was agreed on the trial that the lot in question had a frontage of 186 feet on South Park avenue, north line 216 feet, south line 1S6|- feet, contents of the lot of an acre. It was also agreed that the value of the improvements on the lot should be put at $3400, so that the jury only had to determine the amount of compensation to be paid for the land to be taken, consisting of tSqG7 of an acre. The jury, after being sworn, went upon the premises and examined the same, and after hearing the witnesses called by the respective parties, they returned a verdict, in which the compensation was fixed at $29,440. The court overruled a motion for a new trial, and entered judgment upon the verdict. To reverse that judgment the South Park Commissioners sued out this writ of error.

It is first contended that the verdict is excessive, and for that reason the judgment should be reversed. The property is located some seven miles from the court house in Chicago, no sewer in front of it, nor is it connected with gas or water. Under such circumstances, in view of the situation and location of the property, the amount of compensation fixed by the jury seems large; but where the jury have in person viewed the premises, and determined the amount of compensation from such an examination, in connection with the other evidence introduced on the trial, courts are reluctant to disturb the verdict on the ground, alone, that the verdict may, in the opinion of the court, be too large. In this ease, however, it will not be necessary to pass upon that question, as the record contains an error for which the judgment will have to be reversed.

On the trial of the cause, against the objection of the petitioner, the court allowed the defendant, the owner of the land, to open and close the case in the introduction of evidence and on the argument to the jury. The decision of the circuit court on this point is relied upon as error. Whether the petitioner 'has the right to open and close in a case of this character, is a question upon .which the courts in the different States are not harmonious. But the question is not a new one in this State; it arose in McReynolds v. Burlington and Ohio River Ry. Co. 106 Ill. 152, and we there held that the petitioner in a proceeding to condemn lands held the affirmative, and had the right to open and close the case. This decision was predicated on the rule announced in Wharton on Evidence, sec. 357, where the author says: “It may be stated as a test of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof, which he must satisfactorily sustain.” After referring to what Wharton on Evidence declares as the correct rule on the subject, it was then said: “The present proceeding is not one by the land owner to have an assessment made of his damages, or compensation for the'taking of his land, but it is a proceeding instituted by the railroad company to ascertain what is a just compensation for the land sought to be appropriated. By our State constitution the land can not be acquired without just compensation to the land owner, to be ascertained by a jury. The statute upon the subject contemplates that the jury are to ascertain the compensation ‘after hearing the proof offered.’ Should there be no proof offered, the petitioner would be defeated. * * * Under the rule, then, that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side, we think the court below properly ruled that the petitioner should open and close.” We think the rule announced is sound in principle, and we perceive no reason why it should not be adhered to. The rule seems to be general that the party who asserts the affirmative of an issue is entitled to begin and to reply. 1 Greenleaf on Evidence, sec. 74. ■

Under our constitution and laws the land can not be taken until just compensation is made, and where the petitioner and land owner can not agree in regard to the amount of compensation, the petitioner is compelled to institute the proceedings to determine what shall be just compensation. To the petition which may be filed by the corporation to condemn the land for public use, no answer or plea of any character is required to be filed, but the amount to be paid for the property taken is to be determined upon the petition itself. The evidence of the value of the property introduced by the petitioner may be considered as the amount which it regards as just compensation, and as the amount which it is willing to pay. The defendant denies that this amount is just compensation, and as a defence to the proposition of petitioner that the amount which has been proved and thus off ered is just compensation, he introduces his proof to increase that amount. The real issue in the case then would seem to be whether the amount established by the petitioner is the correct amount, or should it be increased. This is the issue, and it seems only reasonable that the land owner should assume the defence. The land owner does not inaugurate the proceeding; he files no plea which the law requires him to establish by affirmative proof; indeed, he does not ask for damages, as tlie law guarantees him the right to hold and enjoy his land until the petitioner shall make him just compensation therefor. Under such circumstances we perceive no principle under which it' can be properly held that the defendant has the right to begin and close. If a petitioner could take the land upon the payment of nominal damages, perhaps a different rule might prevail; but such is not the case,—the land can not be taken and appropriated to public use until full compensation shall be made. This is a guarantee of the State constitution which must in all cases be observed. The rule here announced is in harmony with the practice indicated to be correct in Village of Hyde Park v. Dunham, 85 Ill. 569, and Fitzpatrick v. City of Joliet, 87 id. 62, although the question here involved was not directly raised in those cases.

For the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey Mr. Justice Scott:

text:
    The People ex rel. John J. Brinkerhoff v. Charles P. Swigert et al.

      Filed at Ottawa September 24, 1883.

    1. Military ETWD—act of 1883, for transfer to the general revenue fund, construed. Tlie term, “any unexpended balance,” in section 4 oí the “Act to provide for the payment of the Illinois National Guard, ” etc., approved June 25, 1883, does not include every part of the military fund before that time levied and collected, which has not been actually paid out of the treasury prior to the first day of July, 1883, and require it to be transferred to the general revenue fund, without regard to existing claims against it. That section is held to mean that whatever may remain of the military fund after the payment of all proper and just claims against it which accrued during the year ending on and including the whole of the 30th day of June, 1883, shall be so transferred; and the fact that a part of such claims have not been actually paid before July 1, 1883, makes no difference in this respect. It is sufficient if they are adjusted and paid at any time before the fund lapses, under the 18th section of article 4 of the constitution.
    2. There is nothing in said section fixing the exact time when the actual transfer of this “unexpended balance” on the books of the Auditor and Treasurer must be made. From the analogies of the law on like questions, it will be presumed that the legislature intended to allow» a reasonable time to ascertain such “unexpended balance.” Under section 18, of article 4, of the constitution, the appropriation, by the act of 1881, would extend until the expiration of the first fiscal quarter after the adjournment of the legislature of 1883, or until October 1, 1883, for the payment of all just claims against the same; and any transfer of such militaiy fund before that time is premature, and unauthorized.
    3. Same— of its distribution—statute construed. The annual distribution of the military fund required to be made by the Governor and Adjutant-General by the act of 1879, is not for the purpose of ascertaining the total amount which is to be paid absolutely to each company for that year, but the object of the statute is, to have made an equal and equitable distribution of the fund for the purpose of being drawn on to meet the actual and legitimate expenses of each company or other subdivision of the military service. The compensation of each company or other service is fixed by law, and can not exceed what is thus fixed, although it 'may not exceed the distribution made by the Governor and Adjutant-General.
    4. A mandamus will not be granted requiring the Auditor to issue, and the Treasurer to pay, a warrant in favor of a captain of a military company, for a sum based upon a division of the total appropriation for a given year, according to the relative numerical strength of his company, without regard to the actual expenses of such company. The sum appropriated for the payment of the several companies, battalions, etc., and their expenses, is not to be paid out in the ratio the number of men and officers composing them bears to the entire militia of the State.
    5. Same—warrants on, must be on vouchers. The State Auditor has no authority of law, under either the act of 1881 or 1883, to issue a warrant on the military fund, except “upon the presentation of the proper vouchers,” showing that it is given on account of legitimate and proper expenses incurred under the provisions of the Military Code; and such vouchers must be in writing, so as to be filed and preserved in his office. This is made a condition precedent.
    6. Same—mere written order is not a voucher. The mere written order of the Governor and Adjutant-General to the Auditor to draw his warrant upon the military fund, in the absence of any account, bill of particulars, or other specifications showing the character of the expenditures, or on what account the warrant is to be drawn, is clearly insufficient, as a voucher, to justify and authorize the Auditor to issue his warrant in favor of the captain of a military company of the State.
    7. Voucher—word defined. The term “voucher,” when used in connection with the disbursement of moneys, implies some written or printed instrument in the nature of a receipt, note, account, bill of particulars, or something of that character, which shows on what account or by what authority a particular payment has been made, and which may be filed away by the party receiving it, for his own convenience or protection, or that of the public.
    8. Pleading—construed most strongly against the pleader. It is a familiar rule of pleading that the allegations of a party must be taken most strongly against him. So where a direction to an officer is required to be in writing, to do a certain act, which he refuses, and the petition for a mandamus to compel him to act fails to show that the direction is in writing, it ■will be assumed there was only a mere verbal order given, and the writ will be refused.
    9. Appropriations—when they lapse, and, cease to have validity. By a settled construction of section 18, of article 4, of the constitution of 1870, all appropriations, whether general or special, when otherwise unlimited, will continue in force and be available for the purposes intended, until the expiration of the first fiscal quarter after the adjournment of the next regular session of the General Assembly, at which time all appropriations must lapse, and cease to be of any validity.
    This was an original application for a peremptory writ of mandamus, exhibited in this court. The facts of the case are stated in the opinion of the court.

      Mr. James A. Connolly, for the relator.
    Mr. James McCartney, Attorney General, for the respondents.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an action of mandamus, brought in this court by John J. Brinkerhoff, as captain of company “C, ” Fifth regi.ment, of the Illinois National Guard, against the Auditor and Treasurer, to compel the former to draw, and the latter to pay, a warrant in favor of the relator, against the military fund, for the use of said company, for the sum of $579.24, being the amount of what is claimed to be the company’s distributive share of the military appropriation for the year ending June 30, 1883. Other special relief is asked, but in the view we take of the case it requires no special notice.

The petitioner alleges, in substance, that the relator is, and has been for more than two years last past, captain of company “0, ” Fifth regiment, of the Illinois National Guard, during all of which time said company was duly enrolled and accepted as a company in the service of the State, and subject to the lawful commands of the Governor of the State, under the provisions of the general Military act of May 28, 1879 ; that the number of officers and men of said company that regularly reported for duty under the provisions of said code during the year ending 30th of June, 1883, was thirty-six ; that by virtue of section 1, article 10, of the Military Code, there was levied, collected, and deposited in the State treasury, a tax for military purposes for the fiscal year ending June 30, 1883, the sum of $73,173.43; that after the 30th day of June, 1883, the Governor and Adjutant-General divided and distributed three-fourths of said military fund to the several regiments, battalions and batteries of the said Illinois National Guard, in proportion to the number of officers and men regularly reporting for duty in each of them, respectively, in accordance with the provisions of section 1, article 10, of said Military Code; that said company “C’s” distributive share of said fund under such division and distribution was and is the sum of $579.24; that upon such division and distribution the Governor and Adjutant-General notified the relator that the said sum of $579.24 was due said company as its distributive share of the three-fourths of said fund, and that upon application to the Auditor he would receive a warrant on the Treasurer for that amount, for the use of said company; that the Governor and Adjutant-General also notified the Auditor of the amount thus found due said company as aforesaid, and directed the Auditor to draw his warrant on the Treasurer in favor of the relator, for the use aforesaid, for said amount; that the relator afterwards, on the 28tli day of August, 1883, applied to the Auditor for a warrant on the Treasurer for said sum of $579.24, to be paid out of said military fund for the use of said company, but the Auditor-refused, and still refuses, to issue the same; that on the 2d day of July, 1883, and before said distribution had been made by the Governor and Adjutant-General, as aforesaid, and before the payment of but a trifling part of the expenses named in section 2, of article 10, of said Military Code, the said Auditor, claiming to act by authority of section 4 of an act entitled “An act to provide for the payment of the Illinois National Guard for the year ending July 1, 1884, and for the year ending July 1, 1885, and to transfer balance of military fund to the general fund,” approved June 25, 1883, drew his warrant on the Treasurer for the whole of said military fund actually being in the treasury on the said 1st day of July, 1883, and thereupon delivered the same to the Treasurer, who, on the receipt thereof, immediately transferred the whole of said military fund to the general revenue fund, thus leaving nothing in the State treasury, so far as the books of the Auditor and Treasurer show, for the payment of the relator’s claim, or the claims of others, against said military fund; that the Auditor and Treasurer, at the1 time of the transfer on the hooks of their respective offices of the military to the general fund, as above stated, had actual knowledge of divers just and legal claims against said military fund, for and on. account of expenses incurred and services rendered under the provisions of said Military Code during the year ending . June 30, 1883.

The foregoing facts are substantially admitted by the answer to the petition, but the respondents maintain that the facts thus admitted are insufficient to entitle' the petitioner to the relief prayed, and whether they are, or not, is the ultimate question for determination. Before proceeding directly to its discussion, it will be necessary to advert briefly to the general legislation relating to the subject, and call special attention to such provisions of the statute as will necessarily affect, or, rather, control, our conclusion in the case.

In 1877 the legislature passed a general law providing for the re-organization of the militia of the State, which was entirely remodeled by the act of 1879. (See Laws of 1877, page 131, and Laws of 1879, page 192.) By the first section of article 10 of the latter act, a tax of one-tenth of a mill on each dollar of taxable property in the State is required to be levied, collected and set apart as the military fund of the State, three-fourths of which is directed to “be annually divided, distributed and paid by the Governor and Adjutant-General of (to) the several regiments, battalions, companies and batteries, in proportion to the number of officers and men regularly reporting for duty in each of them, respectively, for the payment of armory rent, fuel, lights, insurance, and like necessary expenses, and for the subsistence and pay of the officers and men.” By the first section of the military appropriation act of 1881, it is provided “that there be and is hereby appropriated, to pay the expenses of the Illinois National Guard for the years ending July 1, 1882, and July 1, 1883, the proceeds of the levies now authorized by the Military Code to be made annually for State military purposes.” By the second section of the act the Auditor is authorized and directed to draw his warrant upon the Treasurer for the amount of this tax, “iqjon presentation of the proper vouchersand the Treasurer is required to “pay the same out of the proper funds in the treasury not otherwise appropriated, to the order of the persons entitled thereto.” (See Laws of 1881, page 50.) By the first section of the Military Appropriation act of 1883 there is appropriated, “to pay the expenses of the Illinois National Guard for the years ending July 1, 1884, and July 1, 1885, the sum of $75,000 per annum.” The second section of this act is a literal copy of the second section of the act of 1881, above cited, hence the Auditor is not authorized, under it, to draw any warrants on the Treasurer, except “upon the presentation of the proper vouchers.” The third section repeals section 1, article 10, of the act of 1879, authorizing the levy and collection of one-tenth of a mill on the dollar for military purposes. The fourth and last section provides as follows: “That any unexpended balance that may be in the State treasury to the credit of the military fund on the first day of July, 1883, shall be transferred, on the warrant of the Auditor of Public Accounts, to the general revenue fund, and that any military tax collected from the levy of 1882, and paid into the State treasury after July 1, 1883, shall also be placed to the credit of the general revenue fund.” It is upon the construction of this fourth section of the act of 1883 the present controversy mainly turns.

The respondents maintain that the expression, “any unexpended balance, ” includes every part of the fund which has not been actually paid out of the treasury prior to the first day of July, without regard to existing claims against it, however just and well founded, and that such unexpended balance should at once, on the commencement of the new fiscal year, be transferred on the books of the Auditor and Treasurer to the general revenue fund. We do not concur in this view. By the term “unexpended balance, ” we understand the legislature to mean whatever may remain of the fund after the payment of all proper and just claims against it which accrued during the year ending on and including the whole of the 30th day of June, and the fact that a part of these claims have not been actually paid before the first day of July will make no difference in this respect. It will be sufficient if they are adjusted and paid at any time before the fund lapses under the provision of the constitution hereafter referred to; but all such claims against the fund paid after the first of July must be adjusted and paid with reference to the state of the accounts on and including the last day of June, and this, we think, is all that was intended by the fourth section of the act of 1883. We fail to jierceive anything in that section which fixes the exact time when the actual transfer of this “unexpended balance” on the books of the Auditor and Treasurer must be made. Judging from the analogies of the law upon like questions, we think we are warranted in saying the legislature must have intended a reasonable time should be allowed for ascertaining such unexpended balance; and as to what would be a reasonable time, we think section 18, article 4, of the constitution, has an important bearing. It declares : “Each General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the government until the expiration of-the first fiscal quarter after the adjournment of the next regular session; * * * and all appropriations, general or special, requiring money to be paid out of the State treasury from funds belonging to the State, shall end with such fiscal quarter.” By a well settled construction of this provision of the constitution, all appropriations, whether general or special, when otherwise unlimited, will continue in force and be available for the purposes for which they were made until the expiration of the first fiscal quarter after the adjournment of the next regular session of the legislature, at which time all appropriations must lapse, and cease to be of any validity. The People ex rel. Freeman v. Lippincott, Auditor, 64 Ill. 256; The People ex rel. Harts v. Lippincott, Auditor, 72 id. 578.

Being of opinion, under authority of the cases just cited, the appropriation of 1881 for the fiscal years of 1882 and 18S3 continues available for the payment of all just claims against said fund for said years, respectively, until the first day of next October, it was not, and is not, in the power of the respondents to defeat such claims by a transfer on the books of their respective offices of the fund in question to the general revenue fund, as was done, and we are, moreover, of opinion that such transfer W'as premature and unauthorized. The construction, however, wdiich they placed upon the act was by no means a constrained or an unnatural one, if we look alone to the literal terms of the act. It is just such a mistake as conscientious and careful ministerial officers entrusted with the disbursement of public moneys would have been likely to have made, and it is only by looking to other ¡novisions of the statute, the construction heretofore given to the constitution, and the inconveniences and hardships that w'ould necessarily result from -the construction given to the act by them, we feel constrained to adopt a different one.

On the other hand it is contended, that whenever the Governor and Adjutant-General have made a distribution of the military fund for a given year, as required by the act of 1879, and have, in pursuance of such distribution, directed the Auditor to draw' his warrant in favor of the commanding officer of some particular division of the service, as, the captain of a company, for the amount of the share of the division represented by such commanding officer, the Auditor will be bound to do so, although nothing appears to show the actual expenditures of such division of the service. We can not yield our assent to this view of the law, either. As we understand it, the annual distribution required to be made by the Governor and Adjutant-General is not for the purpose of ascertaining the total amount which is to be paid absolutely to each company for that year, but, on the contrary, the object of it is to make an equal and equitable distribution of the fund, for the purpose of being drawn on to meet the actual and legitimate expenses of each company or other subdivision of the service,—in other words, the distribution in question fixes the outside limits of the expenditures of each company or other subdivision, beyond which it is not permitted to go. The actual expenses of some of the companies may be, and probably will be, less than their respective shares under the allotment or apportionment of the total fund. In such case, if the total amount were drawn out by the officer in command, what would be done with the excess over and above the actual expenses ? It is evident neither he nor his men would be entitled to it, for the law has fixed his and their compensation, and its payment is fully provided for. It is hardly necessary to say the legislature could never have intended any such results. It is to be specially noted that the appropriation is only to be used for certain enumerated purposes, and .other “like necessary expenses,” and this clearly negatives the idea there was any intention on the part of the legislature that the total appropriation for military purposes, or any part of it, should be divided among the different commands, without regard to their actual, legitimate expenses. While the relator, in certain portions of the petition, particularly the prayer, seems to concede this view of the law, yet when he comes to state the facts upon which he relies to put the respondents in default and show a right to the relief prayed, he wholly fails to make out a case in harmony with such view. It is clear, from his own statements appearing in the petition, the $579.2d for which he demands a warrant on the treasurer is simply the result or product of the division of the total appropriation for the present year, based exclusively upon the relative numerical strength of the company which he represents, without relation to the actual expenses of that company. Indeed, it is not claimed that the sum in question in any sense represents the actual expenditures of the company, and there is nothing before us from which we can ascertain, or even approximate, the company’s actual expenses. Under this state of facts we have no hesitancy in holding the Auditor properly refused to issue his warrant upon the Treasurer for the amount demanded.

But the case made by the petition is defective—fatally so— in another respect. Whatever may have been necessary, under the acts of 1877 or 1879, to authorize the Auditor to issue a warrant on the military fund, it is clear he has no authority to issue such a warrant either under the act of 1881 or 1883, except “upon the presentation of the proper vouchers, ” showing the warrant is issued on account of legitimate and proper expenses incurred under the provisions of the Military Code. The presentation of such vouchers is expressly required by both of the acts last mentioned, as a condition precedent to the drawing of a warrant on that fund, and this is conceded by counsel. But the relator insists the facts alleged in the petition show a sufficient compliance with these acts in the respect mentioned. We do not think so. By a familiar rule of pleading the allegations in the petition must be taken most strongly against the petitioner. Viewing them in that light, inasmuch as the relator does not claim that the direction of the Governor and Adjutant-General to the Auditor to issue the warrant in question was in writing, it must be assumed it was a mere verbal order, and hence could not be filed in the office of the Auditor as evidence of the .warrants having been issued by their authority, therefore such verbal order lacked the most essential element of a voucher, and consequently, was not, in contemplation of law, a voucher at all. But we go further, and hold the mere written order of the Governor and Adjutant-General, in the absence of any account, bill of particulars, or other specifications showing the character of the expenditures or on what account the warrant was to be drawn, would be clearly insufficient. The term “voucher, ” when used in connection with the disbursement of moneys, implies some written or printed instrument in the nature of a receipt, note, account, bill of particulars, or something of that character which shows on what account or by what authority a particular payment has been made, and which may be kept or filed away by the party receiving it, for his own convenience or protection, or that of the public. Nothing of that kind was done in this case, or offered to be done, hence the Auditor properly refused to issue the warrant in question, and for this and other reasons stated the peremptory writ of mandamus will be denied.

As the transfer of the military fund to the general fund was unauthorized and prematurely made, of course it will be no excuse for a refusal to pay any legitimate and properly authenticated claim against the fund that may be presented between this and the first of October, and the military fund should be restored on the books of the Auditor and Treasurer, as it was before such transfer occurred.

Mandamus denied.

Mr. Justice Scott:

I concur in denying the peremptory writ of mandamus in this case, but I do not concur in that portion of the opinion which declares the act of the Auditor in transferring, on the 1st day of July, 1883, the “unexpended balance” in the State treasury on that day to the credit of the “military fund, ” to the “general revenue fund, ” by his warrant for that purpose, was unauthorized, and premature. I am of opinion it was his plain duty, under the statute, to do so.


author: Mr. Justice Walker

text:
    The City of Virden v. Sarah Allan.

      Filed at Springfield October 1, 1883.

    1. Municipal subscription—properly authorized in special railroad charters, under constitution of 1818. Counties, cities, towns and townships might, under the constitution of 1848, be empowered by general law, by their charters, or the charters of railroad companies, to subscribe for stock in such companies, or even to make donations to aid in constructing railroads.
    2. Constitutional law—private law, as containing more than one subject. Where a charter to construct and operate a railroad confers power on counties, cities, etc., to subscribe to the capital stock of the company, and issue bonds for the same, such provision is germane to such charter, and does not constitute a different subject from that of power to construct the road, it being but a means adapted to that end. Such a private law is not in violation of the constitutional provision in section 23, article 3, of the constitution of 1848, prohibiting any local or private law from containing more than one subject, and requiring that to be expressed in its title.
    3. Appeal—direct to this court—as involving constitutional question. To give this court jurisdiction of an appeal directly from the trial court, on the alleged ground that a constitutional question is involved, a constitutional question must really exist and be presented in the ease, and not have been settled by this court. Parties can not confer jurisdiction in such eases by merely assigning an error that a law is unconstitutional, or by presenting such a question in argument, when such question has already been definitely settled.
    Appeal from the Circuit Court of Macoupin county; the Hon. W. R. Welch, Judge, presiding.
    Mr. Mahlon Ross, for the appellant.
    Mr. Edward McDonald, for the appelle.e.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellee brought an action of assumpsit, against appellant, in the Macoupin circuit court, to recover on six coupons over due, and detached from municipal bonds issued to the Jacksonville and Southeastern Railway Company hy the president and trustees of the then corporate town of Virden. They bear date the 1st of January, 1872. There were $30,000 of bonds, of which a portion of these coupons were detached, and which were delivered in payment of a subscription by the town to the stock of that railway company. The case was tried by the court below, without a jury, by consent of the parties, and judgment was rendered against the city for the sum of $600. From that judgment the city appeals directly to this court.

Appellant has assigned no specific error that there is any constitutional question involved, to give this court jurisdiction. It is true,’ counsel, in his brief, refers to section 23, article 3, of the constitution of 1848, and quotes it. That section provides that no private or local law shall contain more than one subject, and that shall be expressed in the title. The title of the railway charter involved in this controversy is, “An act to incorporate the Jacksonville and Southeastern Railway Company.” It has been long, repeatedly and uniformly held, that counties, cities, incorporated towns and townships may be empowered, by general law, by their charters, or the charters of railroad companies, to subscribe for stock in such companies, or even to make donations, to aid in constructing railroads. If there is or can be anything settled in this court, it is that such power Could be thus granted and exercised under the constitution of 1848. Of this there can be no question.

It has been repeatedly held, and it is equally well settled, that when a charter to authorize the construction and operation of a railroad confers such power upon municipalities, it is germane to such charters, and does not constitute a different subject from that of power to construct the road; that it is but a means adapted to the end, and is but a part of the whole power, and is properly conferred. It then follows that there is no constitutional question involved in this case to confer jurisdiction to try this appeal, and it must be dismissed. Parties can not confer jurisdiction in such eases by merely assigning an error that a law is unconstitutional, or by presenting such a question in argument. Such a question must really exist, and be unsettled by this court, to confer jurisdiction on appeal from or error to the trial court. To hold otherwise would be a palpable evasion of the act creating and conferring jurisdiction on the Appellate Court.

The appeal must be dismissed.

Appeal dismissed.


author: Mr. Justice Scott

text:
    The Board of Trade Telegraph Company v. Kimbro T. Barnett.

      Filed at Mt. Vernon October 2, 1883

      Rehearing denied Nov. Term, 1883.

    1. Action—trespass—at the suit of the owner of the fee in a highway, for an improper use of the highway. Trespass quare clausum fregit was brought by the owner of land abutting upon a public highway, in which he was also owner of the fee, against a telegraph company for entering upon the highway and erecting telegraph poles thereon without the consent of the plaintiff. It was held, the action would lie.
    2. Eminent domain—granting use of highway for erecting telegraph poles—rights of abutting land owner who also holds the fee in the highway. It has been held that where the fee of a street in a town or city remains in the abutting land owner, the corporation may grant the right to a railway company to lay its track along or across the street, but the company will avail of this privilege at its peril. If, in laying its track, it causes private injury to him who owns the fee in the adjoining premises, it must make good the damages sustained. A distinction in this respect obtains where the municipality granting the right to lay the track owns the fee in the streets, and where the fee remains in the abutting land owner. But it matters not, in the application of the principle, in what manner the public acquired the easement over the land,—-whether by condemnation or by dedication.
    3. The same principle applies in case of the use of an ordinary highway or public road, in which the abutting land owner is the owner of the fee in the highway, for the erection of telegraph poles upon which to place the wires to be used for telegraph purposes.

      4. Authority is given by statute to all telegraph companies to erect poles on which to place their wires, on all highways or public roads, by first obtaining the consent, in writing, of the county board of the county in which such highway is situated. But this permission by the county board must be understood as given subject to the constitutional inhibition that “private property shall not be taken or damaged for public use without just compensation. ”
    5. The use of the highway for such a purpose is a new and additional burden upon the fee, not contemplated on the assessment of damages, in case the easement was obtained by condemnation, or had in view by the land owner in the case of a dedication for ordinary highwray purposes, and for such additional burden the owner of the fee is entitled to compensation, or, if entry be made without an agreement with the owner, or condemnation under the statute, the owner may have his action.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Madison county; the Hon. Wh. H. Snyder, Judge, presiding.
    Mr. Francis C. Bussel, and Mr. Allan C. Story, for the appellant:
    The paramount question in this case is this: Is the right to erect and maintain lines of telegraph a part of the public easement ih a common public highway, or is such use of the highway a new and additional burden upon the fee ? We contend the erection and use of telegraph poles in the public highway is not a new servitude entitling the owner of adjacent premises, although he holds the fee in the highway, to recover damages for such additional use.
    In Thompson v. Hodgson, 2 Hun, 146, the right to erect a monument in one of the streets of a village was sustained, against the claim of an owner of the fee in the street. As to the right of public authorities to authorize the building of wharves and levees in a street, see Barney v. Keokuk, 94 U. S. 324. In Iowa,, railroads are not regarded as obstructions to a highway in the legal sense, nor as creating, when laid thereon, any injury to the proprietors of the adjacent lands for which they are entitled to compensation. Milburn
      v. Cedar Rapids, 12 Iowa, 249; Clinton v. Cedar Rapids and Missouri R. R. Co. 24 id. 455; Tomlin v. Dubuque R. R. Co. 32 id. 106; Cook v. Burlington, id. 357; Clinton v. C. and L. R. R. Co. 37 id. 61; Ingraham v. Chicago, D. and M. R. R. Co. 38 id. 669.
    Tlie cases cited, it is true, are generally those in which the fee of the streets was in the cities respectively, but in Haight’s case, in 4 Iowa, 199, it is held the principles laid down in all the later cases apply as ivell where the title of the soil is in the adjacent proprietor as where it is in the city or a third j>arty.

    It is true, the courts of New York, and of some other States, have held that the construction and operation of a steam railroad on a highway was an additional burden upon the fee. Williams v. New York Central R. R. Co. 16 N. Y. 97; Wager v. Troy Union R. R. Co. 25 id. 526; Craig v. Rochester City R. R. Co. 39 id. 404; Schurmeier v. St. P. and P. R. R. Co. 10 Minn. 82; Brisbine v. St. P. and. L. C. R. R. Co. 23 id. 114; Inslay v. U. B. R. R. Co. 26 Conn. 249; Lafayette, M. and B. R. R. Co. v. Mindoch, 68 Ind. 137; Ford v. Chicago and Northwestern Ry. Co. 14 Wis. 609; Blesch v. Chicago and Northwestern Ry. Co. 43 id. 183; Cape Girardeau and B., M. and G. R. R. Co. v. Renfro, 58 Mo. 265. In each of these cases, however, the main consideration was, that the use of the street or highway by a steam railroad was exclusive, and virtually deprived the public of the xise of the road.

    In New York it has also been recently held that the use of a street for a horse railway was an ^additional burden, for the same reason. (Craig v. Roch., C. and B. R. R. Co. 39 N. Y. 404.) But in Illinois, prior to the new constitution, this court held that a steam railroad in a street or highway, if authorized by the municipal authorities, was not a new burden, and no damages could be recovei’ed by the adjoining proprietor, either from the railroad company or the municipality. Moses v. Railway Co. 21 Ill. 516; Roberts v. Chicago,
      26 id. 249; Murphy v. Chicago, 29 id. 279; City of Quincy v. Jones, 76 id. 231. And in the recent case of Edwardsville R. R. Co. v. Sawyer, 92 Ill. 377, Sheldon, J., adheres to the principle of these cases.
    A street railway is not an additional burden to the fee, as is held in Jersey City and B. R. Co. v. Jersey City and II. H. Co. 20 N. J. Eq. 69; Hinchman v. Patterson, 17 id. 76; Railroad Co. v. Heisel, 38 Mich. 66; Attorney General v. Metropolitan R. R. Co. 125 Mass. 515. See, also, 2 Dillon on Mun. Corp. sec. 722; Pedicord v. Balt. etc. Pass. Ry. Co. 34 Md. 479; Hiss v. Balt, and Hamp. Pass. Ry. Co. 52 id. 252.
    The construction of a telegraph line upon the right of way of a railway is no new burden to the fee. Western Union Telegraph Co. v. Rich, 15 Kan. 517; Prather v. Railroad Co. 52 Ind. 40.
    Messrs. Happy & Travous, for the appellee:
    Appellee was the owner of the fee of the locus in quo, subject only to the easement of the public for purpose of travel. Mills on Eminent Domain, sec. 51; Gebhart v. Reeves, 75 Ill. 301; Town of Old Town v. Dooley, 81 id. 255; Pfeifer v. Cox, 8 Am. Rep. 58; Cole v. Drew, id. 363; Angell on Highways, 21; Washburn on Easements, 229. See note to Mayhew v. Norton, 28 Am. Dec. p. 302, and authorities cited.
    The legislature did not intend to authorize the highway commissioners to give away appellee’s land; but if that had been the legislative intent it was beyond its power. Indianapolis, Bloomington and Western R. R. Co. v. Hartley et al. 67 Ill. 439; Rigney v. City of Chicago, 102 id. 64; S. W. R. R. Co. v. S. and A. Tel. Co. 46 Ga. 43.
    Trespass was the proper form of action. Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439; 2 Waterman on Trespass, sec. 692; Cooley on Torts, 318; note to Mayhew v. Norton, 28 Am. Dec. p. 305, and authorities there cited.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action of trespass quaere clausum fregit, brought by Kimbro T. Barnett, against the Board of Trade Telegraph Company. The declaration is in the usual form, the gravamen of the action being that defendant entered with force and violence upon the premises of plaintiff, and dug holes and erected- thereon telegraph poles upon which to place its wires. The pleas of not guilty and liberum tenementnm, originally filed to the declaration, were both withdrawn, and the matters insisted upon as a defence to the action were embraced in five special pleas. The substance of the first three pleas is, the locus in quo was a public highway; that defendant was and is a corporation existing under the laws of Illinois; that the acts complained of were necessarily and properly done in the building of the telegraph line of defendant along such highway, and that the building of such telegraph line was done under and according to the written and recorded consent of the county board of the county in which the premises are situated. The additional matters contained in the other special pleas add nothing to the strength of the defence, and it will not be necessary, as the case comes before this court, to state their contents. To the special pleas setting up the facts above stated, with some others of no considerable importance, with the usual fullness and formality, the circuit court sustained a general demurrer. The defendant electing to stand by its pleas of justification, the court rendered judgment as upon nil elicit, and proceeded to hear evidence, with a view .to assess plaintiff's damages. It was proven plaintiff was the owner of the land described in the declaration; that defendant, by its employés, entered upon the premises, and commenced digging holes and putting up telegraph poles; that plaintiff asked them what authority they had for so doing, and was told they had permission from the county board. Afterwards they went on and put up_twenty-six poles along tlie_side of theJiedge, without the consent of plaintiff. The poles erected are outside of the hedge growing at the side of the highway, but close to it. In some instances the employés cut away the hedge, because it was in their way, and they also cut down two hedge trees that were intended for gate posts where they stood. It was further proven the land where the poles were erected belonged to plaintiff, subject to the right of way, and that the highway was used by the public. It was also proven the erection of the poles by defendant would render it inconvenient for plaintiff to trim his hedge with machines constructed ilor that purpose. Thereupon the circuit court assessed plaintiff’s damages at $78, and from the judgment rendered defendant obtained an appeal to the Appellate Court for the Fourth District, where the judgment of the trial court was affirmed. A majority of the judges of the Appellate Court having certified that in their opinion this “case involves a question of law of such importance, on account of collateral interests, that it should be passed upon by the Supreme Court, ” defendant brings the case to this court on its further appeal, as it is permitted to do under the' Practice act.

The objection an action of trespass guare clausum fregit will not lie in such a case as the one being considered, is settled adversely to the position taken by defendant, in the decision of this court in Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439. That, in some respects, was an analogous case, the form of action being the same, and plaintiff was permitted to recover.

Authority is given by the statute 'to all telegraph companies to erect poles on which to place their wires, on all highways or public roads, by first obtaining the consent, in writing, of the county board of the county in which such highway is situated. Of course that permission is given subject to the constitutional inhibition, “private property shall not be taken or damaged for public use without just compensation. ” Provision is also made by law for ascertaining the compensation to be paid to the owner when it shall be necessary to take or damage any property for the construction, alteration or repair • of any line of telegraph. Rev. Stat. 1874, chap. 134.

The principal question arising on the record may be stated to be, is the right to erect and maintain lines of telegraph . thereon a part of the public easement in a common highway, or is such a structure a new and additional burden upon the fee, for which the owner of the fee may maintain an action ? It was held by the trial court, and its decision was affirmed by the Appellate Court, the erection and maintenance of a line of telegraph on the, highway, although done with the consent of the county board, was a new and additional burden upon the fee, and a recovery by the owner Was permitted. The correctness of that decision is challenged on this appeal.

The question raised is important, and being one of first impression in this court it has been fully considered. Although the case has been elaborately argued, the views entertained by the court may be briefly stated, without any extended discussion. There can be no disagreement as to the facts of the case as they appear from the pleadings by admission on demurrer. Only questions of law remain to be considered on the admitted facts. As has been seen, defendant is a corporation existing under the laws of this State, with power to construct and use a line of telegraph in this State. Permission in writing was given by the proper county board to erect poles on the highway in question, on which to maintain its line of telegraph, care to be taken to do no unnecessary injury. Plaintiff was and is the owner of' the fee, and objected to that use of the highway, but his wishes were disregarded. No effort was made to agree with him as to the damages he would sustain, nor to assess the same under the statute. It is conceded the locus in quo is an ordinary highway, situated without the limits of any municipal corporation. The highway was constructed over lands owned by plaintiff. Of that no question is made. It follows, therefore, plaintiff is the owner of the fee to the center of the highway, subject only to an easement over and upon it in favor of the public. The position taken by defendant is, that. the State can rightfully, as' it has done, authorize the county board to permit defendant to construct its line of telegraph upon the highway without the consent of the abutting land owner; that it imposes no new or additional burden thereon, and that when the public acquire an easement over land, for a compensation fully paid, the public obtain all the rights the land owner had, and the State may authorize any use of it not inconsistent with its use as a highway. On the other hand it is insisted the proprietary rights of plaintiff have been interfered with in a manner detrimental to his interests as the owner of the fee, and that the action of defendant in taking possession of his land forcibly and against his will comes within the constitutional inhibition, “private property shall not be taken or damaged without just compensation.” The latter position is the one best sustained by authority, and rests on sounder principles. It is for the reason the construction and maintenance of a telegraph line upon the highway is a new and additional burden upon the fee to which it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation. The principle is, neither the State nor a municipal corpora-, tion has any rightful authority, under the constitution, to grant away the private, property of the citizen, and if corporations quasi public, in the exercise of the right of eminent domain with which they are clothed by the sovereign power of the State, seek to appropriate it, so that they may have a benefit therefrom,- every principle of justice demands they should make just compensation, whether the property taken or damaged is of little or great value. But aside from all considerations of right and justice, the constitution has so declared, and its mandate in that respect may not be disregarded. A ease having many features in common with the one now before ‘ the court is Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439. It was there said : “A distinction has been taken where the municipality granting the right to lay a track owns the fee in the street, and where the fee remains in the abutting land owner, and it seems to us it rests on sound principle, and is supported by the highest authority. Where the fee remains in the original proprietor it is immaterial how the public acquired an easement over the lands,—whether by condemnation or by dedication. It is only for the use of ordinary travel, such as we are accustomed to see on. streets or highways. In ease the proprietor dedicated the land, it was for no other purpose ; and if it was condemned, his damages were assessed with no other view. A different use of the land can not be justified on the ground that a railway is an improved highway. Railway companies are only public corporations in a limited sense. The right of way, the road bed, and the carriages propelled-thereon, are owned by private individuals, aftd not by the publie. Fares are charged for travel thereon for the exclusive benefit of the parties owning the road. They are constructed and equipped in the interest of private speculation, but at the same time they are intended to subserve the public good. The travel on them bears no analogy to our notions of travel on an ordinary street or highway, where every one travels at his pleasure, in his own conveyance, without paying tolls or fares. The uses are totally different, and even inconsistent. The one is exclusive in favor of private interests, and the other is open and free to all. The doctrine most in consonance with our sense of justice is, when the fee of the street remains in the abutting land owner the corporation may grant the right to the railway company to lay its track along or across any street, but the company avails of its privilege at its peril. If, in laying its track, it causes a private injury to him who owns the fee in the adjoining,premises, it must make good the damages sustained. The doctrine of this ease has since been embodied' in the text by Mr. Billon, in the recent edition of his valúa,-, ble work on Municipal Law, in a distinct section, .and the author says it has for its support the sanction of some of the most eminent jurists in this country. At all events it is now the settled law of this State, and it is now too late to insist a different rule should be adopted. The principle of Hartley's case is conclusive of the one being considered. What is there said respecting the right of a railway to the use of a common highway, applies with equal force to a telegraph corporation. In the same sense the construction of a line of telegraph on the highway is an additional servitude, to which the fee of the land had not before been subjected. The servitude differs more in degree than in character, and whether the' damages are great or small, the corporation asking for or appropriating to itself the benefit of such new servitude must make just compensation to the., owner of the fee. In many, and perhaps in most instances,'the damages may be merely nominal, but in others an actual detriment may be occasioned. That, of course, is a question to be determined from the evidence in each particular ease, with which this court has no concern.

• The decision of the trial court in sustaining the demurrer to the special pleas of justification is warranted by the law, and as its finding as to the damages sustained by plaintiff has been affirmed by the Appellate Court, it is, of course, conclusive on this court, and the judgment of the latter court will he affirmed.

Judgment affirmed.