author: Mr. .Justice Sheldon

text:
    The Chicago and Eastern Illinois Railroad Company v. Daniel Hay et al.

      Filed at Ottawa January 25, 1887.

    1. Notice—by possession of land—as to right of way. Where a railway •company has performed its part of a contract for a right of way over a tract •of land, and has entered into possession of the same, with the owner’s con■sent, the company will become the equitable owner of the right of way, and its continued possession, and that of its successor, will be notice to all subsequent purchasers of the land from the original owner, of its equitable rights.
    2. "Vend ob and purchaser— of their relations of trust towards each ■other. From the time of the contract for the sale of land, the vendor, as to the land, becomes a trustee for the purchaser, and the latter, as to the purchase money, becomes a trustee for the vendor, who has a lien upon the land therefor.
    3. Limitation—as against a trust. No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. At least it will not begin to run before the trust is openly disavowed by the trustee, and this is fully made known to the cestui que trust.

    4. Laches — as against bill for specific performance. The owner of land in 1871 entered into an agreement with a railway company, in which he agreed to convey a strip of land over the same for a main and side-track, in consideration of the location of a station on the premises. During the same year the company entered into the possession of such strip of land, with the •consent of the owner, and fully performed its part of the contract, and continued such occupancy, by itself and successors, without objection, for about thirteen years, when its successor filed a bill for the specific performance of the contract: Held, that the doctrine of laches had no application in the case, and presented no defence.
    5. Estoppel—to enforce specific performance—by declarations of an unauthorised agent. To a bill by a railway company for the specific performance of a contract to grant a right of way over land, as against a subsequent purchaser, the latter set up an alleged estoppel, arising out of the statement of an agent of the company employed to settle for and obtain rights of way, that the company claimed a strip of a less width than that provided for in the contract, made before the defendant’s purchase of the land. It appeared that such statement was made in ignorance of the company’s rights, and that the agent had no authority to release any of its rights acquired under the contract: Held, that such statements or admissions of the agent created no equitable estoppel.
    6. Ejectment—defence under equitable title. Although the general rule is that the legal title must prevail in a court of law', nevertheless a purchaser of land in the possession thereof by the consent of the vendor, who' has paid all the purchase money or performed his part of the contract, may successfully defend his possession in an action of ejectment brought by his vendor.
    7. Chancery—r.elief against mistakes of fact. Courts of equity have jurisdiction to relieve against mistakes of fact, and to set aside judgments at law, and allow anew trial on the ground of newly discovered evidence. They may relieve against the effect of a judgment, when the defendant failed to make a defence of which he was ignorant at the time of the trial, and he was not guilty of negligence in failing to discover the same in time to avail of it,, and where it is unconscionable to allow the judgment to stand.
    8. In this case, facts and circumstances are stated from which it was held that a judgment in ejectment against a railway company for land occupied by it as a right of way, which it had bought and paid for, was no bar to a bill for the specific performance of the contract to convey the right of way. It appeared that the company was, at the time of the recovery, in ignorance of its equitable title, and had used due diligence in seeking to learn the facts, and failed to learn them until after the time had expired for taking a new trial at law.
    Appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.
    The original bill in equity in this ease, filed July 21,1884, by the Chicago and Eastern Illinois Railroad Company, set forth that that company and its predecessors had been, for about thirteen years, in the use of, for the operation of its railroad, a strip of land, one hundred feet in width, across the north-east quarter of the south-east quarter of section 28, township 29, north of range 12, west of the second principal meridian, in Iroquois county, in this State,—said strip lying along the west side of East avenue, in the village of Papineau; that on July 21, 1884, complainant commenced proceedings-for the condemnation of said strip of land, which were pending ; that the defendant Daniel Hay had sued out of said court, and placed in the hands of the sheriff, a writ of execution, to put the defendant in possession of the premises. The hill prayed for an injunction to restrain the defendant and sheriff from interfering with complainant’s possession of the premises-until the determination of the condemnation proceedings. A preliminary injunction was granted.
    On October 4, 1884, an amended bill was filed, setting out that the Chicago, Danville and Vincennes Eailroad Company constructed the railroad; that at and before the time of the-building thereof, one Alexander D. Hay was the owner of the-, south half of the aforesaid quarter-section, and that said Hay and one Cornell were the owners of the north-east quarter of said quarter-section, and the south-east quarter of the northwest quarter of said quarter-section; that about June 1, 1871, the said Alexander D. Hay and Cornell entered into-an agreement with the last named company, whereby that company agreed to remove a station from the point where it-had been previously located by the company, and locate such station on said premises, for the benefit of said Hay and Cornell and the public, and build its line of railroad over and upon said premises, in consideration of which said Hay and Cornell agreed do convey to said railroad company, as soon as the railroad should be constructed, a strip of land two-hundred and fifty feet wide, being one hundred and twenty-five feet on each side of the centre line of the main track of the railroad, as it should be thereafter located over and upon said premises; that afterwards, during the year 1871, the said railroad company did, with full knowledge and consent of said Alexander D. Hay and Cornell, build its line of railroad, side-tracks and station houses on said premises, pursuant to the contract, and took possession of said strip of land, two hundred and fifty feet in width; that on April 17, 1877, the entire line of railroad of said Chicago, Danville and Vincennes Bailroad Company was sold under a decree of foreclosure, and bought by a purchasing committee of the first mortgage bondholders; that said purchasers operated the railroad until August 28,1877, when they transferred the same to the Chicago and Nashville Bailroad Company, a corporation created to receive and operate the same; that on said 28th of August, the said last named company, and the State Line and Covington Bailroad Company, were consolidated, forming the Chicago and Eastern Illinois Bailroad Company; that on March 8, 1881, the last named company and the Danville and Grape Creek Bailroad Company were consolidated, forming the Chicago and Eastern Illinois Bailroad Company, the complainant herein. The complainant further avers, that after such agreement, and while the railroad company was in full use and possession of said premises, the said Alexander D. Hay and Cornell were adjudged bankrupts, and the said Daniel Hay, the defendant, was appointed assignee, who, as such assignee, conveyed all interest of said Alexander D. Hay and Cornell in the north-east quarter of said quarter-section, and the south-east quarter of the north-west quarter of said quarter-section, to one William S. Hay, in consideration of the sum of one dollar; that afterwards, said William S. Hay conveyed said forty-acre and ten-acre tracts to said Daniel Hay; that the said Chicago, Danville and Vincennes Bailroad Company, and its successors, had been in the open and notorious possession of said strip of land, two hundred and fifty feet in width, from the time of building said railroad to that time; that it was only within the last few days previous that complainant had learned the facts stated in the amended bill, of the making of such agreement, and with regard to the building of the railroad, stating the reasons for the inability to ascertain said facts sooner, although due diligence had been used to that end. The amended bill prays for a specific performance of the alleged agreement, and a conveyance of the two hundred and fifty feet in width, above described.
    On hearing, the court.dismissed the bill in respect of specific performance, and continued the bill otherwise, and continued the injunction, and decreed the complainant to pay all the costs of the proceeding. The complainant appeals.
    Mr. William Abmstbong, for the appellant:
    The rights set up in the amended bill could not have been set up as a defence in the ejectment suit. The action of ejectment is but a possessory action. Wilburn v. Haines, 43 Ill. 207.
    Our equitable rights could not be considered in an action at' law. Greenup v. Sewell, 18 Ill. 54; Fish v. Blake, 44 id. 305; Stock Yards Co. v. Ferry Co. 102 id. 514.
    It is not necessary for a party in possession, claiming an equitable title, to sue for a conveyance until an attempt is made to oust him, for" the reason his equitable title may ripen into a legal one under the Statute of Limitations.
    Ignorance of the facts, and the loss of the necessary evidence, furnish a good excuse for the delay in seeking equitable relief, if one is necessary.
    At the time the deed was taken for a strip of land one hundred feet wide, the agent taking the same had no notice of the prior equitable rights of the company. Under such circumstances, the acceptance of a deed for the one hundred feet was no waiver of the company’s rights.
    Courts of equity may grant relief against mistakes of fact, or fraud or accident. (Story’s Eq. Jur. secs. 110, 140.) So relief may be granted against judgments at law, when the defence was unknown at the time of its recovery. Hubbard v. Hobson, Breese, 192; Vennon v. Davis, 35 Ill. 568; Palmer v. Bethard, 66 id. 531; Gregg v. Brown, 67 id. 526.
    Messrs. Doyle, Moeeis & Piebson, for the appellees:
    The judgment in the ejectment suit is a bar to the equitable rights sought in this bill. An equitable title, with possession rightfully taken under it, may be shown in bar of the action. Stowe v. Russell, 36 Ill. 408; Cobb v. Lavalle, 89 id. 333; Kilgore v. Gockley, 83 id. 112; Staley v. Murphy, 47 id. 241; Herrell v. Sizeland, 81 id. 460; Smith v. Price, 42 id. 399; Baldwin v. Pool, 74 id. 100; Fleming v. Carter, 70 id. 288.
    A valid judgment for the plaintiff sweeps áway every defence that should have been made against the action,—and this, too, for every subsequent suit, whether founded on the same or a different cause. Nor will equity relieve from the judgment on any ground of which he should have availed himself at law. Kelly v. Donlin, 70 Ill. 385 ; Rogers v. Higgins, 57 id. 244; Howell v. Goodrich, 69 id. 558; Scott v. Whitlow, 20 id. 310; Loomis v. Riley, 24 id. 307; Briscoe v. Lloyd, 64 id. 33; Hamilton v. Quimby, 46 id. 90; Ruegger v. Railroad Co. 103 id. 456.
    Although a judgment at law be unjust, yet where a legal defence existed, and the defendant had an opportunity to make it, and failed through his own neglect or laches, no relief in equity can be obtained. Winchester v. Grosvenor, 48 Ill. 517; Higgins v. Bullock, 73 id. 208; Railroad Co. v. Field, 86 id. 271; Town of Lyons v. Coolidge, 89 id. 529; Allen v. Smith, 72 id. 333; Clark v. Ewing, 93 id. 577.
    The appellant must show he was prevented from making the defence through accident, fraud or mistake, without fault or blame on his part. Higgins v. Bullock, 72 Ill. 208.
   Mr. .Justice Sheldon

delivered the opinion of the Court:

It appears from the evidence that the Chicago, Danville and Vincennes Railroad Company had, in the fall of 1870, in the construction of its line of railroad from the city of Chicago, reached the county of Iroquois; that it had built its track and was operating its road to a point in that county about three-fourths of a mile north of the property in controversy in this ease, where it had established a temporary station, and that it had graded its road over the quarter-section of land mentioned in the pleadings; that one Alexander D. Hay became desirous of having a station located about the centre of the said quarter-section, and in December, 1870, an arrangement was made between him and the person engaged in procuring the right of way for the company, by which the railroad should be located over this quarter-section of land, and a station should be located at or near the centre of the same, and that in consideration of such location said Hay was to give the railroad company, for its use for main track and side-tracks and depot grounds, a strip of land two hundred and fifty feet in width, through the quarter-section. During the month of March, 1871, Hay consummated the arrangement with Mr. J. E. Young, the contractor and general manager of the railroad, in the presence of Mr. Burton, a citizen of the neighborhood, who was deputy county surveyor and had an interest in the location of the station. The evidence goes to show, though with less distinctness than the making of the contract is shown, that at this time a memorandum of the agreement was made and signed by Hay, but that it is lost or can not be found. In the spring of^lSTl the railroad company built its line of railroad over this quarter-section, locating its station at about the centre of the same, where it has ever since been. The company removed a couple of buildings it had at the temporary station just north, on to these premises. While the side-track was being built thereon, Hay was present on several occasions, and made suggestions to the contractor as to its location, and stated over to him the contract. On June 1, 1871, said Hay and Daniel K. Cornell caused a plat to be made by said Burton, surveyor, which was filed in the clerk’s office of Iroquois county on August 1, 1871, laying out the entire north-east quarter of said quarter-section, and the south-east quarter of its northwest quarter, as a town, known as Papineau, on which the railroad is designated, and two hundred and fifty feet in width of ground is set apart and designated as railroad property. There was much other testimony of admissions of said Hay, of the making of such a contract. At the time the contract was made, said Alexander D. Hay was not the owner of the legal title of the quarter-section. The Illinois Central Bail-road Company had sold the quarter-section, in lots of forty acres each, and executed contracts therefor, but no deeds. On March 31, 1871, the Illinois Central Railroad Company, the then owner, made a deed for the north-east quarter of said quarter-section, to Alexander D. Hay, and Daniel K. Cornell, his son-in-law, and on May 18, 1871, Cyril Tebo, the grantee of the Illinois Central Railroad Company, made a deed for the south-east quarter of the north-west quarter of said quarter-section to said Hay and Cornell, the land, in each instance, having been purchased by said Hay, and the entire consideration paid by him. In December, 1870, said Hay purchased the south-west quarter, and in April, 1871, the south-east quarter, of the said quarter-section.

The evidence of the making of the contract alleged is satisfactory and conclusive. There is no evidence in contradiction, and but some two or three circumstances which are relied upon as showing there was no such contract made. Mr. Young testified that it was part of the contract with Hay that Young & Co., the railroad contractors, were to have a half interest in the town lots of Papineau. Mr. Donovan, the right of way agent, testified that he had an interest in the lots Young & Co. were to receive; -that he did not receive any of the lots in Papineau, and did not know that Young & Co. had; that if they had, he thinks he would have received his share. This is insisted upon as showing there was no such contract. It might go to show that Hay did not give the full consideration for the location of the depot, but it is not inconsistent with having made the contract. Another circumstance relied on, is some vague testimony as to proceedings for condemnation of this land before one McNeil, who was a county judge and justice of the peace. Nothing more is shown than statements that such proceedings were commenced and commissioners appointed. No papers were produced, and nothing ■ further shown. Such testimony would be of more or less weight, according to whether the condemnation proceeding was commenced before or after the time of the making of the alleged contract. If after, it would be strong evidence against such a contract. All that the testimony shows in this respect of time, is the statement of Young, that, as he thinks, in the early part of '1871 he had a conversation with the attorneys in reference to the condemnation proceeding; that the condemnation proceedings had occurred when he had that conversation. The complainant states, merely, that he saw the papers in that proceeding in 1872, giving no intimation as to the time when the proceeding was commenced. A further circumstance is, that in October, 1878, one Blakeley, who, from December, 1876, until November, 1882, was in the employ of the parties having charge of the railroad, and acted in settling up matters pertaining, to the right of way, on October 3, 1878, procured from Daniel Hay, defendant, a deed to the complainant for one hundred feet in width of this two hundred and fifty feet strip, through the north half of the said quarter-section. This deed having been obtained in ignorance of the alleged contract, weighs but little in disproof thereof. All these circumstances are far from being of weight sufficient to countervail the strong body of evidence which so satisfactorily establishes the making of this alleged contract.

The contract proven, then the equitable title of the ground in question was in the Chicago, Danville and Vincennes Bail-road Company, from which company it passed to the present complainant. There was after, but the bare legal title in Hay, who made the contract, which he held in trust for the benefit of the railroad company, and all subsequently taking such title under him, took it charged with the same trust, being affected with notice thereof from the occupation and use of the ground for the railroad.

The objection of laches which is made, so far as respects the remedy for specific performance, is without application to such a case as this. (Pomeroy on Specific Per. of Contracts, sec. 404.) The railroad company had entirely performed on its part, and was in the full possession and enjoyment of the property, with the consent of Alexander D. Hay. Nothing remained to be done but for the former owner to make conveyance of the legal title. The doctrine is, that from the time of the contract for the sale of land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, becomes a trustee for the vendor, who has a lien upon the land therefor. No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. (Decouche v. Savetier, 3 Johns, Ch. 190.) At least, time begins to run against a trust only from the time when it is openly disavowed by the trustee who insists upon an adverse right or interest which is fully and unequivocally made known ■to the cestui que trust. (Oliver v. Piatt, 3 How. 411.) The railroad was built and operated over the premises with the consent and acquiescence of Alexander D. Hay, who made the contract, until his death, in June, 1873, and subsequently was operated, without question of the- railroad company’s right, till in the spring of 1878, when Blakeley, the right of way agent, applied to defendant Hay for the deed of one hundred feet. There is manifestly no laches to bar specific performance.

There is a sort of claim of estoppel against the railroad company to assert its right, attempted to be set up in the proof and argument, although there is no such claim by the answer, arising from the company’s alleged disclaimer of interest in the premises, and defendant Hay’s purchase of the same afterward. All the foundation for this, is the statement of Blakeley when the deed of the one hundred feet was obtained, testified to by Hay, that the railroad company disclaimed to have right to anything more than the one hundred feet. This alleged statement of Blakeley was made in ignorance of the company’s rights. He was but a mere employe in settling up right of way matters, under the orders and supervision of his superior officers, and had no authority to release any right the company had in its lands, or to bar it, by estoppel, from the assertion of any of its rights thereto. Without further pursuing this point, we find no support in the evidence of any equitable claim in Daniel Hay, founded upon estoppel or waiver, or upon being a purchaser for a valuable consideration without notice.

The only serious question we find, is whether the judgment in the ejectment suit is an obstacle to the complainant’s claim of relief. On March 29, 1883, a judgment in an ejectment suit theretofore brought by said Daniel Hay against the complainant, for the recovery of the possession of one hundred feet in width on the east side of, and being a part of, said strip of land of two hundred and fifty feet in width, was recovered by said Hay, against complainant, for the possession of said one hundred feet. Though the general rule be that the legal title must prevail in a court of law, in an action of ejectment, yet there are decisions of this court, that when a purchaser of land is in possession, by consent of the seller, with the purchase money all paid, he may defend successfully against an action of, ejectment brought by the vendor. Stow v. Russell, 36 Ill. 36; Sloan v. Petrie, 16 id. 262; Staley v. Murphy, 47 id. 241; Kilgour v. Gockley, 83 id. 109.

Under these decisions, we think the defendant in the ejectment suit (this complainant,) had a good defence, as shown by the evidence in the present case, which might, if then known, have been successfully made to that suit; but the defendant was in ignorance of the facts which made the defence. It is of the common jurisdiction of courts of equity to relieve against mistakes in matters of fact, and to set aside judgments at law and allow a new trial, on the ground of newly discovered testimony. Story, in his work on Equitable Jurisprudence, (section 110,) in speaking of mistakes, says: “This is sometimes the result of accident, in its large sense, but, as distinguished from it, it is some unintentional act or omission, error arising from ignorance, surprise, imposition or misplaced confidence. ” In the note thereto it is remarked: “Mr. Jeremy defines mistake, in the sense of a court of equity, to be ‘that result of ignorance of law or of fact which has misled a person to commit that which, if he had not been in error, he would not have done.’ ” (3 Jeremy on Equitable Jurisprudence, 2358.) And in speaking of the relief granted by courts of equity from the effect of a judgment at law, (section 140,) the author first named says: “So if a party has, bona fide, entirely forgotten the facts, he will be entitled to relief, because, under such circumstances, he acts under like mistake of the facts as if he had never known them. ” In Vennum v. Davis, 35 Ill. 568, this court said: “A party sued at law, having a defence of. which he does not know, or of which he can not avail himself at law, either for the reason that it is purely equitable in its nature, or because, by the rules of law, he can not avail himself of it, may enjoin the judgment by bill in equity.” And on page 576 : “Here, then, is a plain case, where the complainant did not know of any defence to the suit at law. It may be likened unto the case of newly discovered testimony, on' a motion for a new trial. Such motions, if well supported, are seldom refused.”

The proof is, that the facts of the defence were learned for the first time between July and October, 1884. There is no question as to their being material,—they are conclusive. There is much in the ease in excuse of their not haying been learned sooner, and to free from the imputation of negligence in that respect. There had been many changes in the management of the railroad, which, naturally, would cause more or less of confusion and liability to loss of papers, and of unacquaintance by the present managers of the road with the doings of the original company in the starting of the railroad. It was operated for some time by the original company that built the road; then by a receiver and a subsequent receiver; it was then sold under a mortgage foreclosure, and operated for some time by the purchasing committee, and after one or two consolidations it came into the ownership of the present complainant, and there was the considerable lapse of time, and the death of the party who made the grant of the right of way. A large part of the1 papers of the original railroad company were destroyed by the Chicago fire, in 1871. Complainant’s counsel became its general solicitor, with charge of all its legal matters, in October, 1881, and then found the ejectment suit of Daniel Hay against the complainant pending, it having been commenced January 18, 1881. He immediately began looking through the files, and all the papers of the various offices of the companies which had been connected with the management of the road, and of the receiver, but failed to find anything with reference to the right of way through this property.

The judgment which was rendered March 30, 1883, was one in an ejectment suit. It is not the policy of the law, that in an ejectment suit a party should be concluded by one' trial and judgment, and it is an express provision of the statute that a party against whom judgment is rendered in an action of ejectment, shall, at any time within one year thereafter, upon payment of the costs of the former trial, be entitled to have the judgment vacated, and have a new-trial. Here, the costs were paid within the year, but, for some cause not explained by the record, the judgment does not appear to have been vacated." Thus the defendant had performed the condition entitling it to' have the judgment vacated, and so was entitled to have it vacated, which would have been done, of course, on mere motion. Had the discovery of the defence which existed have been made before the expiration of the year, "no doubt the judgment would, in form, have been vacated. Under the circumstances which this case presents, it would be highly inequitable that complainant should lose its land, which has been bought and paid for, and been for so many years in the undisturbed use and enjoyment of the purchaser and those under it, from lack of a formal .entry of vacation of the judgment, which the party was entitled, under the statute, to have made on mere motion, the not making of which, we must think, came solely from excusable ignorance of the facts of the defence. We are of opinion the judgment should not be held.a bar to the-maintenance of the bill, and that the complainant is entitled to the relief prayed for in the amended bill, and that the injunction be made perpetual.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.

Mr. Justice Mulkey : I dissent from the opinion in this ease.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Chicago and Eastern Illinois Railroad Company v. Melinda Hay et al.

      Filed at Ottawa January 25, 1887.

    Specific performance—as against assignee of the parly malting the contract. The holder of a contract for a conveyance of land made a contract with a railway company, whereby he agreed to convey to the latter a right of way over the land, on conditions fully performed. He paid all the purchase money except $70, and then assigned .his contract of purchase to his wife, she paying nothing therefor, except the $70 to the vendor, and received a deed for the land. ' It appeared that the land outside of the right of way was worth more than the sum paid by the wife: Held, on bill by the railway company for a specific performance of the contract of the husband, that the wife stood in no better position than the husband would, in regard to the rights of the company.
    Appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.
    Mr. William Armstrong, for the appellant.
    Messrs. Doyle, Morris & Pierson, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This ease is essentially the same as the foregoing one of Chicago and Eastern Illinois Railroad Co. v. Daniel Hay et al., and requires the like decision in favor of the appellant. The present case" differs, in that it respects the railroad through the south half of the same south-east quarter of section 28, and in Melinda Hay being a party defendant, instead of Daniel Hay.

It is insisted, that Alexander D. Hay, who granted the right of way for the railroad through this quarter-section, never had any interest in this south half of the quarter. The proof shows that in the fall of 1870, when the railroad was graded through this land, one William David was the owner, by assignment, of the contract of sale by the Illinois Central Eailroad Company, of the south-west quarter of said quarter section. It is claimed by appellees, that David sold and assigned this contract to William S. Hay, but that by mistake the contract was assigned to Alexander D. Hay, and that the latter assigned the same to William S. Hay, who assigned the same to Melinda Hay, and that she obtained the deed for the same from the Illinois Central Eailroad Company. We are satisfied, from the evidence, that it was Alexander D. Hay who made the negotiation with David for the purchase of the land, and that the latter, on December 1, 1870, sold and assigned the said contract with the Illinois Central Eailroad Company, to said Alexander D. Hay, making a written assignment thereof to him on the back of the contract, no other person than the said Alexander D. being known or concerned in the transaction; and that afterwards, the said Alexander D. assigned his interest to his wife, Melinda Hay, she paying nothing therefor; that she paid the remaining one-quarter payment of $70 due on the contract, and received a deed for the south-west quarter of said quarter-section from the Illinois Central Eailroad Company, dated September 30, 1871. All the interest of Melinda Hay in the land, except what may be represented by the $70 payment, is derived under Alexander D. Hay, who granted the right of way, and she stands in no better position than he would in regard thereto. The remainder of the forty acres outside of the right of way is much more than sufficient to meet the $70 payment.

The decree will be reversed, and the cause remanded for further proceedings in conformity with the opinion in this and that in the foregoing named case.

Decree reversed.


author: Mr. Justice Craig

text:
    John Murphy v. The City of Peoria.

      Filed at Ottawa January 25, 1887.

    1. Municipal corporations — of their powers—as to the mode of improving streets. Where a city, by special charter, is invested with the exclusive control of its streets, and with power to regulate and improve the same, the manner in which they may be improved, must in a large measure he left to the discretion of its authorities; and they may rightfully cause a street to he graded, and when its entire width is not needed for travel, they may cause a strip in the centre thereof to be sodded, instead of graveling the entire street, and provide for the payment of the cost,thereof by special assessment upon the property benefited thereby.
    2. Same—of a single improvement embracing different elements. A city, under its general power to improve its streets, may properly provide, by ordinance, that a street shall be improved, by grading the same, the sodding of the centre thereof, the graveling of the sides, and for the construction of a sewer under the same; and this will constitute but one improvement, although containing different elements.
    3. Special assessments—powers of municipalities—as to character of improvements to be made. Where a city acting under a special charter has adopted article 9 of the general act in relation to cities and villages, it will have the power to construct sewers under its streets by special assessment, without regard to its powers in this respect under its special charter.
    4. Same—appointment of commissioners—at a probate term of county court. = The county court is authorized by the statute, on petition to appoint commissioners to make a special assessment for the improving of a street by a city, at a probate term, although the final hearing of the application to confirm the assessment may be required to be at a laiv term, as held in the case of East St. Louis v. Wittich, 108 111. 450.
    5. Same—of the notice of confirmation—its sufficiency. An affidavit of one of the commissioners appointed to make a special assessment, showing that he had, on a day named, mailed to each of the owners of the premises assessed, as per the assessment roll, whose names and place of residence were known to him, a notice of the application for confirmation, giving a copy of the notice, is insufficient to give the court jurisdiction to render judgment against the lands of those not appearing. The statute (Rev. Stat. art. 9, chap. 24, secs. 26, 27, 28,) requires notice to be sent to each owner whose name and place of residence are known to any one of the commissioners.

      G. Each owner whose name and residence may be known to any one of the commissioners, is entitled to notice; and the affidavit, in order to give the court jurisdiction, must show a compliance with this provision of the statute.
    7. Same — uwiver of defect in notice. Owners of premises specially assessed for a proposed public improvement, who appear and file objections to the confirmation of the assessment, will thereby waive any and all defects in the notice of the application' for a judgment of confirmation.
    Writ of Error to the County Court of Peoria county; the Hon. Lawrence W. James, Judge, presiding.
    Messrs. Jack & Tichenor, and Messrs. McCulloch & Mc-Culloch, for the plaintiff in error.
    Mr. I. C. Pinckney, and Mr. H. W. Wells, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This is a writ of error, brought by plaintiffs in error, to reverse a judgment of the county court of Peoria county, confirming a special assessment for the improvement of Hamilton street, in the city of Peoria. The ordinance under which the improvement is proposed to be made, provides, that the street shall be graded and graveled; that twenty-four feet in width in the center of the street shall be graded, and sodded with good sod; that a sewer shall be constructed in said street, of eighteen-inch vitrified pipe.

It is urged that the action of the city council was in violation of its delegated powers,—first, in attempting to levy a special assessment for grading and sodding a park in the middle of the street; second, in attempting to levy a special assessment for the construction of a sewer, the charter providing taxation by districts for that purpose; third, in uniting in one assessment the cost of several improvements, which, in their nature, can not be united.

As to the first objection, it will be necessary to refer to some of the provisions of the charter of the city. Under section 1, chapter 6, of the charter, (2 Private Law's of 1869, p. 136,) the city council has power “to lay out public streets, alleys, lanes, avenues and highways, and extend, alter, widen, contract, straighten and discontinue the same, purchase and lay out public parks and squares or grounds; third, to cause any street, alley, lane, avenue or highway to be filled, graded, leveled, paved, curbed, walled, graveled, macadamized or planked, and keep the same in repair; fourth, to cause cross and sidewalks, main drains and sewers, * * * and private drains, to be constructed and laid; fifth, to fill, grade, improve, protect and ornament any public square.” Section 2 provides: “The expenses of any improvement mentioned in the section (1) shall be defrayed, save as herein otherwise provided, by a special assessment upon the real estate benefited thereby. ” In addition to the foregoing, under section 7, chapter 4, of the charter, the city council has power to control, regulate, repair and amend the streets; also, to open and vacate, to establish and alter the grade.

It is obvious, from these various provisions, that the control of the streets, and the power to improve, is placed in the hands of the city council, and in the exercise of these powers the manner of the improvement must, of necessity, to a large extent, be left to the discretion of that body. It is true, that the charter does not, in express words, declare that the city council may grade and sod a portion of the street, but we think it is manifest that such power is included under the general authority to control and improve, conferred on the city council by the charter. Where a street is of such a width that the entire street is not needed for the public travel, and the city council deem it wise to sod a portion thereof, instead of graveling the entire street, we see no good reason why they may not properly, under the general power to control and improve, adopt that method of improvement.

As to the second objection. Under clause 4 of section 1, supra, the city council has power to construct sewers, and under section 2 the expenses may be defrayed by special assessment. If, however, there was any doubt in regard to the authority under the special charter, the city of Peoria adopted article 9 of the act in relation to cities, villages and towns, and under this article there can be no question as to the power to construct sewers by special assessment.

As to the third objection, that three distinct improvements are united in one, we do not regard the point as well taken. It is true that the ordinance provided for graveling the road, sodding the center of the street, and a sewer under the street, but we do not regard these as separate and distinct improvements, as was that in Weckler v. City of Chicago, 61 Ill. 142, but the three things required to be done are but constituent parts of one improvement. The three elements required, when all united, made the improved street contemplated by the ordinance. A projected improvement may often contain several elements, but- when they are all united they constitute a single, whole, one improvement. Such is the case here. The improvement consisted of three elements, but when the work is all done there is but a single improvement.

It is next urged that the appointment of commissioners is void, because made at a probate term of the court. This position is predicated on East St. Louis v. Wittich, 108 Ill. 450, where it was held that the proceeding on application to confirm a special assessment must be had at a law term of the county court. We do not think the case cited has any bearing on the question involved here. Section 21, chapter 24, of the statute, provides, that the city council may order a petition to be filed in the county court. Section 22 specifies what the petition may contain. Section 23 provides that upon the filing of such petition the court shall appoint three commissioners. As to what term of the county court the commissioners shall be appointed the statute is silent, and we see no reason why they may not he appointed as well at a probate as any other term of the county court. If, however, there was room for controversy upon the question, section 5 of the act of March 26, 1874, conferring jurisdiction on the county court, (Starr & Curtis, 718,) would seem to be conclusive. The section, after conferring jurisdiction on the county court of all probate matters, proceedings for the collection of taxes and assessments, and other matters, concludes as follows: “All of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms hereinafter mentioned.” Under this section of the statute the county court was expressly authorized to appoint the commissioners at a probate term, although the final hearing, on application to confirm, may be required to be had at a law term, under sections 31 and 32, of article 9, of the statute in relation to cities, as held in the case cited.

On the final hearing in the county court, wherein a judgment confirming the assessment was entered, seven of the plaintiffs in error, Mrs. Morris Pitt, Belle C. Topping, August Siebold, W. G. Buchanan, B. G. Calligan, Daniel J. Calligan and William J. Dobbins, did not appear, and as to them it is contended that the notice given by the commissioners was not sufficient to authorize the court to proceed to judgment. Section 26, of article 9, chapter 24, of the Bevised Statutes, requires the commissioners to make an assessment roll, in which shall appear the names of the owners, so far as known. Section 27 makes it the duty of the commissioners to give notice of such assessment, and the term of court at which á final hearing will be had, in the following manner: They shall send by mail to each owner of premises assessed, whose name and place of residence are known to them, a notice of a specified form. Section 28 prescribes the proof of such notice, as follows: “On or before the final hearing, the affidavit of one or more of the commissioners shall be filed in said court, stating that they have sent, or caused to be sent, by mail, to the owners whose premises have been assessed, and whose names and place of residence are known to them, the required notice. ”

The proof of a compliance with the statute as to service of notice, was the affidavit of one of the commissioners, as follows : “Herbert F. Day, one of the commissioners appointed by the county court of Peoria county, in the matter of the .special assessment for the improvement of Hamilton street, from the north-west side of' Monroe street to the east side of -North street, being duly sworn, says, that he has this day mailed to each of the owners of the premises assessed, as per the foregoing assessment roll, whose names and place of residence were known to affiant, a notice, of which a true and correct copy is hereto attached, and marked Exhibit ‘B.’ ” It is manifest that this is not a compliance with the statute. The statute evidently requires a notice to be sent to each owner whose name and place of residence may be known to any one or either of the commissioners; and an affidavit by one of the commissioners, that he mailed a notice to each owner known to him, does not show that notice was mailed to" the owners whose names and residence were known to the other commissioners. . For aught that appears, the other two commissioners may have known the name and residence of every owner whose property was assessed, "while the commissioner making the affidavit may not have known one-tenth of the owners’ names and residence. Each owner whose name and residence may be known to any one of the commissioners is entitled to notice, and the affidavit, in order to give the court jurisdiction, should show a compliance with this provision of the statute. As to those who appeared and tiled objections to the confirmation of the assessment, their appearance was a waiver of any and all defects in the notice; but as to those who did not appear, the court had no jurisdiction to proceed against their property.

On account of the defect in the notice, the judgment, as to the seven plaintiffs in error above named, will be reversed; as to the other plaintiffs in error, all of whom appeared, it will be affirmed, and the cause will be remanded.

Judgment reversed in part and in part affirmed.


author: Mr. Justice Mulkey

text:
    The Chicago and Northwestern Railway Company v. John Goebel.

      Filed at Ottawa January 25, 1887.

    1. Negligence—contributory and comparative—collision with freight, car while being unloaded on side-track—injury to person engaged in unloading the freight car. Where a recovery is sought against a railway company for the killing of a person while engaged in unloading coal from a freight car left on a side-track for the purpose of being unloaded, by violently running other cars against the same without previous warning, on the ground the company had so acted as to justify the deceased in assuming there was no danger in being upon the freight car, and to throw him off his guard and excuse his want of care, there is no error in refusing an instruction which virtually would take this feature of the case from the jury.
    2. In such case it would be error for the court, at the instance of the defendant, to instruct the jury, as a matter of law, that if they believed, from the evidence, that the employes of the defendant, shortly before the accident, saw the deceased upon the car at the place where the injury occurred, yet, as a matter of law, they had a right to presume that he was a reasonable being, and would not place himself or remain in a position of danger, until they saw something in his conduct to the contrary.
    3. The rule that where those in charge of a train of cars see a person crossing the track, or approaching other places of known danger, they may rightfully presume he will look out for danger and avoid it, and /therefore not attempt to stop the train, has no application where the person injured has reasonable ground to suppose there is no danger in the position in which he is rightfully engaged, in unloading a car upon a side-track, such confidence in his safety being induced by the previous conduct of the company, and whereby he is thrown off his guard and lulled into a sense of security, and is injured by the sudden striking of the car he is unloading.

      4. lío one has the right, by his course of dealing, or otherwise, to invite confidence, and lull another into a sense of security from the consequences of his own acts, and then, when an injury has resulted to him from simply acting ripon the confidence thus inspired, to turn around and say he should have been on his guard and have paid no attention to what was said or done which caused him to believe he was in no danger.
    5. Where a railway company places a loaded car upon a side-track, to be there unloaded by the owners of the freight, and such owners, or their servants, with the express or implied consent of the company, proceed to remove the freight, the company will have no right, without special notice and warning, to run or back a train in upon the side-track while such car is being unloaded. In such case, those engaged in unloading may give their undivided attention to their work, and will be justified in assuming that the company will not molest them, or render their position hazardous, without such notice or warning.
    6. Pleading—admission of sufficiency by pleading further. The filing of the general issue in an action on the case, is an admission, in law, of the sufficiency of the several counts of the declaration.
    7. Instruction—construed—whether assuming a fact. In an action by the personal representative of a deceased person, against a railway company, for negligence causing the death of the intestate, the court instructed the jury, “that although a plaintiff, who has been guilty of negligence, can recover, if the jury believe, from the evidence, that the defendant has been guilty of negligence which is gross, in comparison with that of the plaintiff, which is slight, yet,” etc.: Held, that the words, “which is slight,” did not render the instruction subject to the objection that it told the jury the plaintiff’s negligence was slight. The words, “a plaintiff who has been guilty,” etc., can not be held to refer to the plaintiff in the suit. The purpose of the instruction was to state a hypothetical case, in order to present the abstract principle of comparative negligence.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. L'orin C. Collins, Judge, presiding.
    Mr. B. C. Cook, Mr. W. C. Gotjdy, and Mr. W. B. Keep, for the appellant:
    The negligence of Hart, the deceased, was greater than that of the defendant, and such as to preclude a recovery. The burden of proof was on the plaintiff to show that his intestate was, at the time of the accident, using ordinary care and caution for his own safety. Railroad Co. v. Johnson, 103 Ill. 512; Railway Co. v. Thorson, 11 Bradw. 631.

      The sixth of defendant’s instructions, as asked, states the law correctly. Railroad Co. v. Johnson, 103 Ill. 512; Railway Co. v. Thorson, 11 Bradw. 631; Abend v. Railroad Co. 111 Ill. 203; Railroad Co. v. Lee, 68 id. 576; Railway Co. v. Moran, 13 Bradw. 72.
    In the modification, by the insertion of the words, “ivhich is slight,” the court virtually instructed the jury that the plaintiff’s negligence was slight. This, even if a clerical error, is sufficient to reverse. American v. Rimfert, 75 Ill. 228; Railway Co. v. Thorson, ll Bradw. 631.
    The thirteenth instruction states the law correctly, and should have been given. Railway Co. v. Lee, 68 Ill. 591; Railway Co. v. Damerell, 81 id. 453; Railway Co. v. Harwood, 90 id. 425 ; Railway Co. v. Austin, 69 id. 426; Railway Co. v. Krough, 13 Bradw. 455.
    A man in full possession of his faculties, standing in full view of a locomotive engaged in switching cars, is, prima facie, guilty of negligence, if he does not see what the locomotive is doing, when he is in a place where he is liable to be injured by it. Wood v. Railway Co. 52 Mich. 402; Railroad Co. v. Bliss, 6 Bradw. 418; Railroad Co. v. Simmons, 110 Ill. 340.
    It is always the duty of a person crossing the track of a railroad, to watch for the approach of trains, and a person who is injured on account of his neglect to look and listen for approaching trains, can not recover. Austin v. Railroad Co. 91 Ill. 35; Railway Co. v. Dimick, 96 id. 42; Railway Co. v. Robinson, 9 Bradw. 89.
    Mr. Frank N. Grover, Mr. B. N. Freeman, and Mr. C. M. Hardy, for the appellee :
    Negligence is a question of fact for the jury. Pennsylvania Co. v. Frana, 112 Ill. 398; Meyers v. Railroad Co. 113 id. 386; Railroad Co. v. Bonifield, 104 id. 223; Railroad Co. v. Pennell, 94 id. 455.

      What is ordinary care, is also a question for the jury. Pennsylvania Co. v. Frana, 112 Ill. 398; Kolb v. O’Brien, 86 id. 210; Schmidt v. Railroad Co. 83 id. 405.
    The defendant was, under the circumstances, obliged to give Hart warning, other than the mere ringing of a bell. Railroad Co. v. Hoffman, 67 Ill. 290; Mill Co. v. Johnson, 114 id. 63.
    The modification of defendant’s sixth instruction can not be considered as telling the jury that the plaintiff’s negligence was slight. The words, “which is slight, ” qualify the preceding part of the sentence, in exactly the same manner as the words, “wliich is gross, ” do.
    Defendant’s thirteenth instruction has no application to the facts shown in the record, and was properly refused. Besides, it does not state the law correctly. Railroad Co. v. Johnson, 103 Ill. 520 ; Mill Co. v. Johnson, 114 id. 63 ; Morris v. Railroad Co. 45 Iowa, 32; Lewis v. Railroad Co. 38 Md. 600; Zimmerman v. Railroad Co. 71 Mo. 484.
    A railroad company is bound to use the utmost diligence toward parties lawfully engaged upon the company’s grounds, —as, a man loading or unloading freight. 1 Thompson on Negligence, 461; Pierce on Railroads, 275, 276; Railroad Co. v. Hoffman, 67 Ill. 287; Mill Co. v. Johnson, 114 id. 63; Morris v. Railroad Co. 45 Iowa, 31; Newson v. Railroad Co. 29 N. Y. (2 Tiff.) 383; Stinson v. Railroad Co. 32 id. (5 Tiff.) 333; Noble v. Cunningham, 74 Ill. 51.
   Mr. Justice Mulkey

delivered the opinion of the Court:

John Goebel, as administrator of John J. Hart, deceased, recovered a judgment in the circuit court of Cook county, against the Chicago and Northwestern Railway Company, for the sum of $5000, for negligently causing the death of the intestate, which, on the company’s appeal, was affirmed by the Appellate Court for the First District. By the company’s further appeal, the case is now here for review.

The accident which resulted in Hart’s death occurred November 13, 1883, on a side-track, east of the company’s two main lines, at its Evanston yard, near Chicago. The evidence tends to prove that Hart, prior to the accident resulting in his death, was one among a number of teamsters whose daily business was to unload and haul coal and other freight from loaded cars standing on the side-track in question; that such unloading of the cars by teamsters was done for the owners of the freight, and not for the company, but with the company’s knowledge and consent, and in pursuance of the due course of business at that yard; that on the day just named, while the deceased was loading his wagon with coal from said side-track, the car upon which he was standing, was, through the negligence of the company, suddenly and violently struck by other'ears on the side-track, set in motion by a locomotive engine under the control and direction of the company’s servants, causing the deceased to lose his balance and fall between the cars on the track, where he was run over and killed. The evidence also tends to prove that the side-track in question was used chiefly, if not exclusively, for standing loaded cars thereon, for the purpose of having them unloaded by teams; that it wras the usual course of business to daily gather up such cars on the track as had been emptied, and place them in a local freight train for removal. While the switching required for this purpose was going on, the unloading of cars was necessarily suspended, for, besides being dangerous, as a general rule all the loaded as well as empty cars would be first pulled out together on another track, and there separated, the empty ones being placed in a train on one of the main tracks, for removal, when the loaded ones would be pushed back upon the side-track from which they had been taken, and would there be shoved, or, as the witnesses have it, “bunched” together, and the brakes set. The engine would then be uncoupled, run back, and placed at the head of the train from whicli-it had been detached. This all having been done, was'understood, as is claimed by appellee, and as we think the evidence tends to prove, as a signal that the switching was over, and that the teamsters might with safety resume the unloading of the cars. It also sufficiently appears that the deceased was familiar with the manner in which the business was done at the yard, having been at work there several months previous,—hence it may be assumed that he well understood the significance of bunching the cars, etc., as above stated. That they were left in such condition on the day of the accident, but a short time before the deceased and .the other teamsters resumed their work, is clearly shown. *

The second count of the declaration, after setting out, by way of preamble, the custom, as above stated, and showing that the deceased had, in pursuance thereof, resumed the work of unloading said ear, expressly charges, that while the deceased was so engaged, and while exercising due care on his part, the defendant, by its agents and servants, wrongfully, negligently, and without any warning or signal, committed the injury of which plaintiff’s intestate died, in the manner heretofore stated. The appellant claims, however, that the switching was never regarded as over until the loaded cars were not only “bunched,” with brakes set, but also coupled together, and that as they were not coupled on this occasion, the deceased was guilty of such contributory negligence, in resuming his work before this was done, as to prevent a recovery. The evidence clearly shows that the custom in this respect was not uniform,—that while the switching force of the company would sometimes so couple the cars together, they at other times did not do so. The controversy upon this point, however, is not an open question here. It is one of the controverted questions of fact in the case which is conclusively settled against the appellant by the decision of the Appellate Court.

Of the same character is the claim' that the evidence does not sustain either count of the declaration. The facts relied on as constituting negligence were specifically set forth in each count of the declaration, and they were put directly in issue by filing the plea of the general issue, 'which was also an admission, in law, upon the record, of the sufficiency of the respective counts to which it was pleaded. Evidence was offered and heard in support of both counts, and the Appellate Court has expressly found that the evidence sustains the finding under the second count of the declaration, and that is conclusive upon appellant.

The errors of law relied on for a reversal occupy but a small space in the argument. It is not claimed in the briefs that the trial court committed any error in ruling upon questions of evidence.

As to the instructions, none were asked or given for appellee. Under the facts, the course adopted by appellee’s counsel, in this respect, was eminently prudent and sagacious, and might, doubtless, in many cases, be followed with profit.

With respect to appellant’s instructions, it is claimed the court erred in modifying the sixth, and in refusing the thirteenth. The sixth instruction, as modified by the court, is as follows:

“The jury are instructed, as matter of law7, that although a plaintiff who has been guilty of negligence can recover, if the jury believe, from the evidence, that the defendant has been guilty of negligence which is gross in comparison with that of the plaintiff, which is slight, yet you are further instructed, as matter of law, that before you can consider the degrees of negligence of which the various parties have been guilty, you must believe, from all the evidence in the case, that the deceased was, at'the time of the accident in question, exercising ordinary care and prudence for his own safety, and if you believe, from the evidence, that the deceased was guilty 'of a want of ordinary care, then the plaintiff can not recover.

So much of the instruction as appears in italics was inserted by the court, and that is what is complained of. The addition made by the court, which constitutes the chief ground of complaint, is the words, “■which is slight.” It is said by appellant’s counsel, that the court, by the insertion of these words, “virtually instructed the jury that the plaintiff’s negligence was slight. ” As we construe the modification, the court did nothing of the kind. The" first part of the instruction, including the words complained of, does not refer to the concrete case made by the evidence then before the jury, but rather to a hypothetical ease, for the purpose of presenting the abstract principle, so called, of comparative negligence. Thus, the jury are told that although a plaintiff who has been guilty of negligence may recover, etc., it is clear, that- by the expression, “a plaintiff,” the then plaintiff was not intended. It is also equally clear that by the phrase, “toho has been ■guilty of negligence, ” it was not intended to assert that the plaintiff in the case then on trial had been guilty of negligence. The words complained of are to be understood and construed in the same way. They were but a part of the hypothetical case, and were added to make it complete as a presentation of the rule of comparative negligence. The added words but express that which would be implied without them, and consequently afford no ground for complaint. So far as the words added at the end of the instruction are concerned,.they are clearly favorable to appellant, and it "could not therefore have been injured by them.

The thirteenth instruction is as follows:

“The jury are instructed, as matter of law, that even if you believe, from the evidence in this case, that the employes of defendant company, shortly before the accident, saw the deceased upon the cars at the point where the injury occurred, yet, as a matter of law, they had a right to presume that he was a reasonable being, and would not place himself or remain in a position of danger, until they saw something in his conduct to indicate to the contrary. ”

This instruction, it is claimed, is sustained by the ruling of this court in Chicago, Burlington and Quincy Railroad Co. v. Lee, 68 Ill. 579, and should therefore have been given. The circumstanpes in this and that case are wholly different, and call for the application of a different principle. It is undoubtedly true, as held in that case, that one crossing a railway is bound to look out for his own safety, and if, failing to do so, he receives an injury which might have been avoided by the exercise of reasonable diligence, he can not recover for such injury. This is, unquestionably, the general rule, applying to all persons crossing railroads, or approaching other-places of known danger. The case in hand, however, is unlike one of that kind, in this, that, so far as the second count of the declaration is concerned, the plaintiff’s right to recovery is placed upon the express ground, that by reason of the appellant’s own course of conduct, appellee was justified in assuming that there was no danger in the deceased resuming his work of unloading the cars. Whether the appellant had so acted in this case as to justify this assumption, was the central point upon which the ease turned, and to have given the instruction as asked, would have been virtually taking the case from the jury, which, under the circumstances, would clearly have been erroneous.

The principle here adverted to, and to be applied to this case, might, under certain circumstances, apply as well to the crossing of a railroad as to anything else. Suppose, for instance, a railroad company should adopt the custom of putting up a signal each day, at a particular crossing, to indicate that the last train had passed over the track for that day, and that one, relying on the signal as an assurance there was no danger; should be injured in attempting to cross, such a case would be analogous, in principle, to the one before us, and would call for like treatment. No one has the right, by his course of dealing or otherwise, to invite confidence, and lull another into a feeling of security from the consequences of his own acts, and then, when an injury has resulted to him from simply acting upon the confidence thus inspired, to turn round and say, “You should have looked out for yourself, and paid no attention to what I said or did. ” When a railroad company puts loaded cars upon a side-track, for the purpose of being unloaded by the owners of the freight, and such owners, their agents or servants, with the express or implied consent of the company, proceed to remove the freight, the company, in such case, has no right, without special notice and warning, to run or back a train in upon the side-track while the cars are being unloaded. And while, in such ease, those engaged in the work of unloading are not permitted to close their eyes or ears to what comes within the range of these senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them, or render their position hazardous, without such notice or warning. That such is the law, is well settled by authority. Rolling Mill Co. v. Johnson, 114 Ill. 57; Railroad Co. v. Hoffman, 67 id. 287; Newson v. New York Central Railroad Co. 29 N. Y. 383; Stinson v. Stinson, 32 id. 333; Noble et al. v. Cunningham, 74 Ill. 51; Thompson on Negligence, 461; Pierce on Bailroads, 275, 276.

• Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Chicago, Evanston and Lake Superior Railroad Company v. The Catholic Bishop of Chicago et al.

      Filed at Ottawa January 25, 1887.

    1. Eminent domain—of the compensation to be awarded—of the time to which valuation must relate—rights acquired pendente lite. The compensation to be paid by the petitioner must be fixed by the valuation of the property taken, at the date of the filing of the petition. Therefore, rights acquired by tenants or third persons after that date, are acquired pendente lite, and are subordinate to the rights of the petitioner; and such tenants can not recover for improvements made upon the premises.
    2. Same—when the market value must prevail. Where an entire strip of land is taken for railroad purposes, so that the owner has no other adjoining property to be damaged, the measure of the compensation to be paid therefor is the market value of the property.
    3. Same—effect of a particular use of the property, upon the measure of compensation. Where the proprietor of land elects to use it for one purpose rather than another, or assumes a restriction as to the character of use he will permit, in nowise binding upon him by the nature of his tenure, this will not prevent his recovering, in a proceeding to condemn the same, its value, from its capacity and adaptability for other uses.
    4. So in determining the market value sought to be taken, reference may he had not merely to the uses to which the land is actually applied, but its capacity for other uses, so far as the same may be shown by the evidence.
    5. Same—where the owner or proprietor enjoys only a restricted use of the property—as affecting the measure of compensation. Where, however, the owner of land sought to be condemned is restricted, by statute, or by the provisions of the instrument under which he holds title, or in any other binding way, to a particular use of it, so that he can not lawfully apply it to any other use, the measure of his compensation will be its value to him for the special use to which he is so restricted.
    6. Same—compensation to a tenant. A verdict in a proceeding to condemn land, which gives a tenant in possession of a part of the premises the full value of his improvements thereon, and also allows him to remove the same, is so manifestly unjust as to call for a reversal of the judgment.
    7. Same—evidence in fixing value. On a proceeding to condemn land for public use, on the question of the value of the property, the petitioner offered to prove that an agent of the owner agreed to accept $8000 for the ground, but afterward refused to take it, because the petitioner would not pay $500 to the tenants on the premises, which the court refused to admit: Held, that the exclusion was proper. The question to be decided was, the market value of the land. It was immaterial what opinion upon that subject had previously been expressed by an agent of the owner.
    8. Instruction—contradictory. Where the plaintiff procures an erroneous instruction to be given, he can not complain of another instruction given for the defendant, which states the law correctly, merely because it is contradictory of the one given at his instance.
    Appeal from the County Court of Cook county; the Hon. Richard Peendeegast, Judge, presiding.
    Mr. E. Walker, for the appellant.
    Messrs. Hynes, English & Dunne, for the appellee the Catholic Bishop.
    Mr. Robert L. Fatham, and Mr. Robert H. McCurdy, for the appellee William H. Bairstow.
   Mr. Justice Magruder

delivered the opinion of the Court.:

This is a proceeding, instituted in the county court of Cook county by the appellant railroad company, under the Eminent Domain act, for the purpose of condemning a piece of land, owned by the appellee, “the Catholic Bishop of Chicago, ” a corporation sole. The appellees, Bairstow and Moore, claim to be lessees of portions of the premises, and, also, to be the owners of certain improvements thereon. The property, sought to be condemned, is a narrow strip of ground, 585T-^ feet long, and about 40 or 41 feet wide, situated on the west side of the main road from Chicago to Evanston, and between the road and the tracks of the Northwestern Railroad Company. It adjoins the station of the Northwestern Railroad Company, known as Calvary station, and lies alongside of the railroad platform, connected with the station. On the east side of the main road lies Calvary cemetery, a burying ground, owned by the Catholic bishop of Chicago. The strip in question lies opposite the cemetery, and the south end of the strip is almost directly opposite the main entrance to the cemetery.

The jury, by 'its verdict, awarded to the Catholic bishop of Chicago, for his interest in the land, $9815.50, and the court rendered judgment, declaring his full compensation and damages to he that amount.

The main point, made by counsel for appellant, is that the damages are excessive. The case was not complicated by any consideration of damages to property, not taken. The whole strip of ground was condemned, and the simple question was as to the value of the land taken. As is usual in such cases, there is great conflict in the testimony of the witnesses, those testifying for the railroad, putting it at low figures, and those testifying for the owner, putting it at high figures. Besides considering the evidence of the witnesses, as given in their presence, the jury went upon the premises, and examined them, and exercised their own judgment as to the value. Under these circumstances, although the verdict is fully as large as the testimony warranted, yet we can not say, that it is so excessive as to justify a reversal on that account.

The testimony showed, that the land in controversy had been rented, as a stone and marble yard, ever since 1869, and that it had been occupied for such purpose by Bairstow from 1872 up to the time of the trial of this cause. There was some testimony going to show its adaptability for use as restaurant property. One witness testified, that “it got to be an understood fact, that the bishop would not rent it for any such purpose, ” as the keeping of a restaurant. It does not appear, however, except from the hearsay evidence of outside parties, that the church authorities ever actually placed any restriction upon its use except for saloon purposes. Upon this subject appellant asked and the court gave an instruction, a part of which is as follows:

“The respondent, the Catholic bishop of Chicago, has offered evidence tending to show the market value of a part of the property in controversy, for a special use,—such as a sale or rental for restaurant purpose or use; and in considering such evidence, you should determine, from the evidence, whether the Catholic bishop of Chicago, prior to the commencement of this action, had put such property, or any part thereof, on the market for .sale or rental for such use, and whether, prior to such time, there was any application for either the purchase or rental of such property, or any part thereof, for such use, together with all other evidence on that point, if any, as you may find in the case; and if you believe, from all the evidence, that, at the time of filing the petition herein, the Catholic bishop of Chicago restricted and would not permit such use, and that he withdrew such property from such use, then the court instructs you that you should not award as compensation for the land taken, its value for such special use.”

' The court also gave for the appellee, the Catholic bishop óf Chicago, the following instruction and several others of like import therewith:

“6. The jury are instructed, the true measure of compensation for property to be condemned is the market value of the property, but references may be had, not merely to the uses to which the land is actually applied, but its capacity for other uses, so far as the same may be shown by the evidence, may also be considered.”

It is not claimed, that the sixth instruction, given for appellees, lays down any erroneous or incorrect rule. It is in accord with previous' decisions of this court. (Haslam v. Galena and Southern Wisconsin Railroad Co. 64 Ill. 353; Chicago and Evanston Railroad Co. v. Jacobs, 110 id. 414.) But counsel says, that this instruction and the others of like character with it, which were given for appellees, contradict and nullify the above instruction, which was given for appellant. It is urged, that the language of the instructions for appellee is broad enough to justify the jury in considering the capacity of the land for use for restaurant purposes, while the instruction for appellant expressly told them, that, if the bishop had refused to permit the ground to be used for restaurant -purposes, his restriction upon its use for such purpose would prevent them from awarding, as compensation, its value for such special use.

The objection, here urged, assumes, that the instruction, given for appellant, laid down the law correctly. If it did not, then its contradiction by the instructions upon this subject, which were given for appellees and which did lay down the law correctly, would make no difference.

Where the owner of land is restricted by statute, or by the provisions of the.instrument, under which he holds his title, or in any other binding way, to a particular use of it, so that he can not lawfully apply it to any other use, the measure of his compensation, where the land is taken by condemnation, will be its value to him for the special use, to which he is so restricted. Thus, in In re Albany Street in New York City, 11 Wend. 149, the ground, taken for a street, was a cemetery, and it appeared, that it could not be used for any other purpose by the corporation of Trinity Church than for burying the dead. It was there held, that it was the damage sustained by the church, which the commissioners were to ascertain, and that the true rule of estimating such damage was to appraise the property at its then present value to the owner, considering the extent of his interest and the qualified rights, which might be exercised over it. To the same effect is Stebbing v. Metropolitan Board of Works, 6 Q. B. 37, where a part •of a graveyard was condemned for a street, and where the owner held it subject to a restriction, “which it was not practically possible for him to remove. ”

The ground, in controversy in this suit, is not a part of Calvary cemetery. It is outside of the cemetery and across the street from it. The record furnishes no proof as to how the Catholic bishop obtained his title, nor upon what terms he holds it. Undoubtedly he holds it for the use and benefit of his church, but it in no way appears from the evidence before us, that he is subject to any restrictions as to the mode, in which he may so use it. The testimony tends.to show, that this ground was not taxed. Inasmuch as it had been rented for years for a marble and stone yard, and was yielding a profit, it was unquestionably subject to taxation. This, however, was a matter to be settled between the owner and the taxing power, and did not concern the appellant.

The bishop may have declined to rent the property for a restaurant, and may have forbidden its use for that purpose, on the ground that there was an impropriety in allowing a resort of that description to be located opposite the entrance to a sacred place under the special control of a religious body. But this was a limitation of the use, that was altogether self-imposed. Such a restriction as here existed was fixed by the will and preference of the owner, and was not binding upon him by the nature of- his tenure. Because the proprietor of land elects to use it for one purpose rather than another, we do not think, that its capacity for the use, to which it is not put, is improperly taken into consideration in estimating its value. In Haslam v. Galena and Southern Wisconsin Railroad Co. supra, we said, that a witness might be asked “not only the actual uses of the land, but its capabilities, as far as they add to its market value. If the land has a mine under its surface, the fact may be stated, if the mine adds to its market value, even though such mine has never been worked. ” It follows, from what is here said, that the instruction which is complained of as having been contradicted, did not lay down a correct principle of law.

Appellant, upon the trial, offered to prove, that, after the beginning of this suit, it agreed to pay, and a representative of the Catholic bishop agreed to accept, $8000 for the ground in controversy, and that such representative- afterwards refused to take the $8000, because the railroad company would not consent to pay $500 to the tenants upon the property. It was stated, that this offer was made for the purpose of showing what the opinion of an authorized agent of the bishop was as to the value of the ground. The court declined to> admit the proposed evidence. Its exclusion was proper.

The question to be decided was the market value of the-land. It was immaterial what opinion upon that subject had been previously expressed by an agent of one of the appellees. Moreover, parties to a litigation may negotiate for the settlement of their dispute, and one party can not introduce in evidence, to the disadvantage of the other, propositions, that, may have been made with a view of effecting a compromise.

The court instructed the jury, on behalf of the appellee tenants, that, if such tenants had placed buildings on the premises, which could not be removed without damages to them, they were entitled to such damages, and to the reasonable cost of the removal of them to the most convenient place, to which they could be removed. We do not deem it necessary to discuss the question whether this instruction was correct and proper or not, under the facts of this case. It induced the jury to award the appellee, Bairstow, $1520 “for damages to and removal of improvements.” We can find no evidence in the record to justify this award.

The only evidence, which can be held to have any bearing upon the subject, is that which tends to show, that Bairstow agreed with the archbishop to remove all his improvements and surrender up his lease upon being paid $700, the archbishop to furnish a team and two men to help him move his stone and material. If this is to be regarded as legitimate proof upon the amount of damages to the improvements and the cost of removing them, then as it was the only proof, the verdict was too large and can not be sustained.

Much testimony was introduced to prove the value of the improvements, and it is very evident, that the jury have-awarded to appellee Bairstow the full value of the same. although the very language of the verdict shows that he was to have the privilege of removing them. To give him all that his improvements were worth, and, at the same time, to allow him to take them away was manifestly unjust.

As to the appellee, Moore, he had no lease, until long after this proceeding was begun, and his office and stock of materials were placed upon the ground after the filing of the petition herein. He was not therefore entitled to any recovery. The compensation to be paid by appellant must be fixed by the valuation of the property at the date of the filing of the petition. The right, vested in it, upon its payment of the compensation, awarded for the land, relates back to the time of filing the petition. Hence, rights acquired by third parties after that date are acquired pendente lite, and are subordinate to the rights of the petitioner. Schreiber v. Chicago and Evanston Railroad Co. 115 Ill. 340.

The judgment of the county court is, therefore, affirmed as to the amount awarded for the land, but as to the other amounts awarded, it is reversed, and the cause is remanded for further proceedings in conformity with this opinion.

' Judgment reversed in part and in part affirmed.


text:
    Edward R. Oliver v. Revilo Oliver.

      Filed at Ottawa January 25, 1887.

      Evidence—to establish that a deed is a forgery. In this case, the facts and circumstances relied on to show that a recorded deed was a forgery, are stated, and held insufficient to invalidate the deed as recorded.
    Writ oe Error to the Circuit Court of Livingston county; the Hon. N. J. Pillsbury, Judge, presiding.

      Mr. C. C. Strawn, for the plaintiff in error:
    It requires more than a preponderance of evidence to justify a decree in setting aside a deed as a forgery. Where a criminal offence is charged in the pleadings in a civil case, the offence charged must be proved beyond a reasonable doubt. Sprague v. Dodge, 48 Ill. 142; McConnel v. Insurance Co. 18 id. 228; Crandall v. Dawson, 1 Gilm. 556; Harbison v. Shook, 41 Ill. 141; Chaffee v. United States, 18 Wall. 516.
    Courts of equity have repeatedly refused to sustain actions to set aside deeds for fraud, unless there was proof beyond a reasonable doubt. Gould. v. Gould, 3 Story, 516; Phettiplace v. Sayles, 4 Mass. 312; Purcell v. Miner, 4 Wall. 513; Kerr v. Russell, 69 Ill. 666; Russell v. Baptist Theological Union, 73 id. 337.
    Messrs. Harding & Murdock, and Mr. Thomas F. Tipton, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case is now before us for the second time. The former opinion, filed May 19, 1884, is in 110 111. 119. Since the reversal and remanding of the cause, an amended bill has been filed, alleging that the original deed, claimed to have been, executed by Amoretta Oliver to Eevilo Oliver, has been discovered, and charging, that the recorded deed from Amoretta Oliver to Franklin Oliver Sr. is a forgery. The question involved is purely one of fact. The record is very voluminous. We shall not attempt to analyze, compare and discuss the testimony of the numerous witnesses on both sides. We have examined it all, and weighed it carefully, and shall only give, in general terms, the conclusion, which we have reached. Wre are of the opinion, that the recorded deed is not proven, by a clear preponderance of the evidence, to have been a forgery.

June 11, 1879, Amoretta Oliver obtained a decree of divorce from Franklin Oliver Sr., her husband, and was awarded the 400 acres in controversy, as alimony. The defendant in error, Eevilo Oliver, is their son. John L. Oliver, hereafter mentioned, is another son. In 1879 Franklin Oliver Sr. was ninety-three years old. A bitter animosity existed between himself on the one side, and his wife and her two sons, Eevilo and John on the other. The record teems with exhibitions of cruelty and hatred, springing from an unnatural family feud.

On October 21, 1.879, Franklin had some negotiations with his former wife with reference to an exchange of the 400 acres he had given her for another tract, owned by him, which contained 765 acres. On that day, they had a meeting at her house, at which Minnerly, a justice of the peace, and the main witness for defendant in error, was present. Minnerly swears, that he made out two deeds, one from Franklin to Amoretta for the 765 acres, and one from Amoretta to either Franklin, or two nieces- of his in New Jersey, for the 400 acres. The negotiations, however, fell through. Mrs. Oliver refused to carry out the exchange. Franklin Oliver was angry about it, and threatened, that he -would set aside the divorce, if his former wife should not execute the deed to him of the 400 acres.

On October 25, 1879, a second meeting took place, at which Franklin, Amoretta, Eevilo and Minnerly were present. Minnerly states, that, when he came to the house on this second occasion, Franklin said to him: “I think it will not be a failure this time; we have agreed and there will be no controversy.” It is undisputed, that two deeds were then executed. Franklin made a deed to Amoretta, conveying to her 845 acres, having added an 80-acre tract to the 765 acres, already mentioned. Franklin Oliver who has since deceased, swore, on the former hearing, that Amoretta then executed to him, in exchange for the 845 acres, a deed conveying to him the 400 acres, and that he took the last named deed away with him, and, on October 28, 1879, went to Pontiac and recorded it. On the other hand, Amoretta Oliver, and her son, Bevilo, swear, that the deed of the 400 acres, which she then executed, was to Bevilo Oliver and not to Franklin Oliver. The” only question in the case is: Did Amoretta Oliver make a deed-of the 400 acres to Franklin Oliver or to Bevilo Oliver?

The records of Livingston county show, that a deed from Amoretta to Franklin Oliver, conveying the 400 acres, was recorded in the recorder’s office of that county on October 28, 1879. After its record and on or about October 30, 1879, it was delivered to Franklin Oliver. On the morning of January 3, 1880, Franklin Oliver was found in the house, in which he lived alone, in his bed with his hands and his feet tied and a gag in his mouth. His clothes and his papers were scattered upon the floor and his trunk had been rifled. He swears, that, at this time, the deed, which he had recorded, was stolen from him. The evidence points very strongly to Bevilo Oliver, as the person, who committed this outrage upon his aged father.

The evidence, introduced upon the first hearing, has already been commented upon in our former opinion. Upon the second hearing, a deed of the 400 acres, dated October 25, 1879, signed by Amoretta Oliver, and jrarporting to have been acknowledged before A. B. Minnerly, justice of the peace, on October 25, 1879, running to Bevilo Oliver, as grantee, was introduced in evidence, as the original deed, that was executed by Amoretta on October 25, 1879. It is argued, that,.as she then made this deed to Bevilo and as she made no other deed of the 400 acres except this, the deed to Franklin Oliver, which was recorded, must have been a forgery. The deed, thus produced, comes attended with so many circumstances of suspicion, that it can not be allowed to -weigh against the solemnity of a public record.

It shows upon its face, that it was never recorded. Bevilo Oliver swears, that he drew it, and the proof tends to show, that the writing in the body of it is in his handwriting. The signature is Mrs. Oliver’s. Eevilo and liis mother were interested parties. The certificate of acknowledgment has no seal. It is signed “A. B. Minnerly J. P.” It “is a printed blank, and the few written words which it contains appear to be in Minnerly’s handwriting. Minnerly has left the State of Illinois and is now living in Texas. The testimony introduced by defendant in error to explain the loss of this document, is not satisfactory.

Eevilo Oliver says, that, after the deed ivas executed and delivered to him on October 25, 1879, he laid it down on the table in the room, where his father and mother then were, and went to the timber. Mrs. Oliver says, that her husband, who remained in the room some time after Eevilo left, wanted the deed and she let him take it, and he said he would carry it to Pontiac and have it recorded. It is difficult to understand, why Franklin Oliver should be so desirous of recording a deed, conveying to a son, between whom and himself there existed such a feeling of hostility, that very tract of 400 acres, which he had been so anxious to get on October 21, in exchange for the 765 acres. He did not take away the deed of 845 acres, which he had made to his wife, to have that recorded. She recorded it herself a few days after. He could have had no possible interest or object in carrying off and agreeing to record a deed to Eevilo. The theory of an exchange of lands, and the conveyance of the 400 acres to Franklin in pursuance of such exchange, explain the consideration, which the latter received for deeding away the 845 acres.. Nothing else furnishes an adequate explanation of his parting with the 845 acres, in view of the state of feeling, which then existed between the parties.

McDowell, an attorney, swears, that Eevilo once asked him, “if he could not get the old man’s land away from him by having two deeds, one over the other in some way, when the old man read the same, and then, when the old man came to sign the same, slip it or change it, so that he would in fact sign a deed different from the one he had read.” Sears swears, that old Mr. Oliver once said to him, in speaking of the exchange of the 845 acres for the 400 acres, that “he thought they were playing sharp on him, that she had deeded 400 acres * * * to Eevilo, and he thought their calculation was for Eivilo to get his deed on record first. ” If two-deeds, each conveying the 400 acres, were made out, one to Eevilo and one to the old man, with the intention of showing him the latter, in order to get him to convey the 845 acres, and then of substituting the former in its place, the plan would seem to have miscarried, as the old man took possession of the deed to himself.

The testimony introduced by defendant in error to explain the mode, in which he recovered the.deed to himself, which, he says, that his father carried off on October 25, 1879, can not be regarded as conclusive upon that subject. John L. Oliver, who lived in the same house with his mother and his brother Eevilo, and was interested on their side of the controversy, says, that, in June 1880, his father requested him to go to his trunk and get a certain letter; that, while looking for the letter, he found a package of papers, and, upon examining them, discovered this deed to Eevilo; that he took the deed from the package, and kept it in his own possession, without saying anything to Eevilo or his mother about it, until November 1884. His testimony seems wholly improbable. During these four years, he lived three years in the house with his mother and brother; the original bill,was filed in this cause in September 1880; he was among the parties to the litigation during the whole of its progress. He confesses, that he told falsehoods in regard to his possession of the deed. He swears, that, in the summer of 1880, his father asked him several times, “if I didn’t get a paper out of his trunk and I told him no.” He again says: “A good many asked me if I knew anything about the deed and I always told them I didn’t know anything about it, the same as I told my father.” Several witnesses swear, that, after the production ■of the deed in question, they asked John L. Oliver about it, ■and he always denied that he ever had or saw any such deed, .and claimed that he knew nothing about any deed to Eevilo.

The memory of Minnerly in regard to the transaction is so much at fault, that his testimony throws but little light upon it. In regard to his statements, as given upon the first hearing, we made the following observations in Oliver et al. v. Oliver, 110 Ill. 119 : “The evidence of the only other person present, when the deed was executed (the justice of the peace) throws but little light on the transaction. He did not read the deed and can not say, who the grantee named in the deed was. From the conversation he understood, that complainant was the purchaser. But this evidence we do not regard as having much bearing on the question.” His deposition has been taken in Texas, since the case was last before this court, and he now says, that he “never took the acknowledgment of but two deeds, one to Eevilo from his "mother, and one from Oliver Sr. to Mrs. Oliver. ” In this, however, he is evidently mistaken for the following reasons :

The original bill charged, that the deed, recorded by Franklin Oliver Sr., was the same deed, which had been executed by Mrs. Oliver to her son, Eevilo, and that, before recording it, Franklin had erased Eevilo’s name and inserted his own, ■so as to'make himself appear as the grantee in the record. "The amended bill takes a different position. It charges, that the whole of the deed, which was recorded, was a made up and forged deed, and that the genuine deed to Eevilo has been discovered. It is now admitted by defendant in error, that the deed to Eevilo, which John L. Oliver claims to have found, and the deed, which was placed on record by old Mr. Oliver, were" two separate and distinct instruments. Mr. Corileal, who had done the recording in the circuit clerk’s office at Pontiac for seven years, and is an entirely disinterested witness, swears, that he recorded the deed, left with him by -old Mr. Oliver on October 28, and examined it critically, and that the certificate of acknowledgment, appended to it, was' in Minnerly’s handwriting; that he had seen Minne'rly write and was acquainted with his handwriting.

We do not think, that defendant in error has established the charge, made in his amended bill, by a preponderance of the evidence.

The decree of the circuit court is reversed, and the cause •is remanded for further proceedings in conformity with this opinion.

Decree reversed.