author: Mr. Justice Scott

text:
    The Village of Hyde Park v. Nathan Corwith.

      Filed at Springfield May 12,1887,

    1. Rembdy—to recover on judgment of condemnation. Where an ordinance for the condemnation of land by a village for a street, provides that the entire cost of the proposed improvement shall be paid by special assessments, so long as such ordinance remains in force it excludes every other mode of payment, and an action of debt will not lie on the judgment of condemnation against the village, although it may have taken possession of the land condemned. Such judgment can be paid, if at all, only by special assessments.
    2. Res judicata—by decision of ihis cowrt. A decision by this court, that mandamus will not lie to compel a village to pay a judgment of condemnation of land for a street out of a fund to be raised by a general tax, and that the ordinance under which the condemnation was had is still in force and not repealed, becomes res juddcata as to such matters, and an action of debt by which it is sought to recover a judgment for the compensation awarded, seeking the same end, can not be sustained.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Henry V. Fbeeman, for the appellant:
    The special remedy or method of paying for the improvement provided for in the ordinance, namely, by special assessments, is conclusive. People v. Village of Hyde Park, 117 Ill. 462; Village of Hyde Park v. Thatcher, 13 Bradw. 613; Smith v. Tripp, 14 R. I. 112.
    To compel a municipal corporation to do an act, the party applying must show a clear right to have the thing done, and that the village has the power to do it in the manner sought. 1 Dillon on Mun. Corp. sec. 89; People v. Crotty, 93 Ill. 180; People v. Hatch, 33 id. 9 ; Commissioners v. People, 66 id. 339.
    A liability to be sued in debt implies a liability to pay a judgment so obtained, and to pay such judgment a general tax must be levied. A tax to pay for an improvement to be paid by special assessment will be illegal.
    The evidence fails to show such negligence on the part of the village to levy the special assessments, as will entitle the plaintiff to this action.
    Appellee has never requested the village to proceed with the special assessment, and hence this action will not lie for the same reason which forbids mandamus.

      A party can not maintain an action at common law, when he fails to resort to the remedy given him by statute. Pierce on Railroads, (ed. of 1881,) 1-178.
    The evidence fails to show that the village has ever taken possession of the premises Avith the owner’s consent. Taking possession without his consent is a trespass, and does not divert title. Dillon on Mun. Corp. sec. 479, note; Stewart v. Baltimore, 7 Md. 500; Chicago v. Barbian, 80 Ill. 415.
    Mr. Consider H. Willett, for the appellee:
    The remedy by special assessment, when created, was ex-clusiAre. Pierce on Railroads, 177; 2 Woods on Railroads, sec. 245 ; 67 Ill. 191.
    As to the following points possession is the controlling point:
    If the ordinance was repealed after possession taken, the judgment became absolute,—the power to proceed by special assessment Avas gone. Chicago v. Beaubien, 80 Ill. 482; Corwith v. Hyde Park, 14 Bradw. 635.
    If the ordinance was not repealed, the village alone could enforce the remedy by special assessment. If it neglects to proceed in the matter Avithin a reasonable time, this Avill give the land owner a common law right of action. Smith v. Railroad Co. 67 Ill. 191; Corwith v. Hyde Park, supra; Higgins v. Chicago, 18 Ill. 2720; Wheeler v. Chicago, 24 id. 105; Bradford v. Chicago, 25 id. 349; Glencoe v. People, 78 id. 382; Beveridge v. West Park Commissioners, 100 id. 75.
    What is a reasonable time when the facts are not in dispute is a question of law. Blackwell v. Foster, 1 Metc. 88.
    Abandonment is a matter of intention, and operates instanter. Drury v. Ross, 5 Col. 300.
    Whenever conditional judgment has become absolute, by taking possession, debt may be maintained, first, if unreasonable delay exists in enforcing the special assessment; second, if it be abandoned; or, third, if the enabling ordinance is repiealed. Chicago v. Shepherd, 8 Bradw. 602; Chicago v. Beau

      bien, 80 Ill. 482; Chicago v. Palmer, 93 id. 125; Corwith v. Hyde Park, 14 Bradw. 635; Railroad Co. v. Teters, 68 Ill. 144; Wheeler v. Chicago, 24 id. 105; Clayburgh v. Chicago, 25 id. 440; Wilkerson v. Buchanan County, 12 Mo. 328; Harrington v. Berkshire, 19 Pick. 263; Forrestville v. Boston, 121 Mass. 173; State v. Sap, 17 Wis. 687.
    Cases in which the facts are on all fours with ours, in which relief was granted by a common law remedy: La Fayette v. Shultz, 44 Ind. 97; Fisk v. Newark, 40 N. J. 11; Schoolbred v. Charleston, 2 Bay, (S. C.) 63; People v. Syracuse, 78 N. Y. 56; Iowa. v. Keokuk, 9 Iowa, 438.
    Besides the face of the judgment (no costs were recovered) we are entitled to interest at six per cent since the village took possession of the land under the judgment for a street. Cook v. South Park Commissioners, 61 Ill. 125; Chicago v. Palmer, 93 id. 125; Railroad Co. v. McClintock, 68 id. 296; Beveridge v. West Park Commissioners, 100 id. 75; Mills on Eminent Domain, sec. 175, and notes; Appeal of the Borough of Verona, 108 Pa. St. 83; Railroad Co. v. Stenier, 44 Ga. 546; Shelton v. Kalamazoo, 24 Mich. 383; Rex v. Railroad Co. 3 Ry. Cas. 777; Bailey v. Carrollton, 28 La. Ann. 171.
    Where contracts provide for payment only from a special assessment, they are upheld, as made; yet for any default or unreasonable delay in' collecting the special assessments, an action will lie exactly as though the contract contained no such stipulation. Maher v. Chicago, 38 Ill. 266; Chicago v. People, 56 id. 327; Baldwin v. Oswego, 41 N. Y. 132; Lansing v. Van Gordon, 24 Mich. 456.
    The right of payment where possession was taken, became a vested right to payment, which can be destroyed in no way but by actual payment. Fletcher v. Peck, 6 Cranch, 87; University v. Foy, 2 Hayn. (N. C.) 310; Trustees v. Woodward, 4 Wheat. 518; Berry v. Randall, 4 Metc. 292; Brewer v. Otoe County, 1 Neb. 373; Gibbs v. Railroad Co. 13 S. C. (Shand.) 228; Hubbard v. Brainard, 35 Conn. 563.
   Mr. Justice Scott

delivered the opinion of the Court:

This cause has been elaborately argued in behalf of plaintiff, but the view taken by this court can be shortly stated. A succinct account of the transactions, out of which the condemnation judgments arose upon which the action is brought, may be found in the opinion of this court in The People v. Hyde Park, 117 Ill. 462. It is in all essential features the same case, except this is an action of debt on the condemnation judgments, and the former case was a mandamus to compel the village to pay such judgments out of a fund to be raised by a general tax. Should the present judgment be permitted to stand, the village might be compelled to pay it out of a common fund, to be raised by a general tax upon the property situated within the limits of the village, as any other judgment. It is therefore plain, it is sought to do by this action that which it was decided in the former case could not be done at all,—i. e., to compel the village to pay the condemnation judgments, or, what is the same thing, compel the village to levy a general tax on the property within the village for that specific purpose.

Counsel is in error in assuming the “action of mandamus was defeated on the technical ground * * * no proper demand to maintain mandamus had been made.” Such was not the case. It was distinctly said that was one of the minor questions in the case, to which no great importance was attached. It is also error to suppose no other questions discussed and decided in that case are res judicata. The principal point made was, whether the village could be compelled to pay the condemnation judgments out of a common fund, to be raised by general taxation on all the property of the municipality, and it was held it could not be. Precisely the same argument was then made in favor of the relief demanded as is now made in support of the present judgment. It was then insisted, as is now done, the enabling ordinance under which the proceedings were originally commenced, was repealed, and that by the act of the village in taking possession of the lands of plaintiff the condemnation judgments became absolute. It was ruled the enabling ordinance was not repealed by the ordinance of July 2, 1877, so far as the land between Forty-first and Forty-second streets is concerned, which is the land in controversy, and that decision is res judicata, and is not open for reconsideration in this case. The village board had declared, by ordinance, before anything was done, the entire cost of the proposed improvements should be paid for wholly by special assessments. It was .within the legislative authority of the village to so declare, and its discretion in that regard could not be controlled by the courts. That mode of payment for the land proposed to be taken for public use was fixed and determined in advance, by ordinance, and while that ordinance remains in force, as it does, it excludes any other mode of payment. These questions were passed upon by this court in the former case, and it is not necessary to re-state the reasoning by which the conclusions were reached. It is sufficient that under the former decision the condemnation judgments, can only be paid, if at all, by special assessment under the-original ordinance, which is in force as to them. That being, so, the Superior Court should have instructed the jury, as1 it was asked to do, there could, in law, be no recovery on such condemnation judgments.

The judgments of the Appellate and Superior Courts will be-reversed, and the cause remanded to the Superior Court.

Judgement reversed.

Mr. Justice Sheldon, dissenting.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Erastus Dean et al. v. Harry C. Long et al.

      Filed at Ottawa November 11, 1887.

      1. Witness—competency—party as against heirs. The deposition of a party complainant, taken after the death of a defendant, in a bill filed to set aside a deed, and for rents, etc., is incompetent to be read as evidence as against such deceased party’s heirs.
    2. Trust—conveyam.ce in trust—and in whom the legal title will vest. A land patent from the United States to A and B, trustees for G and her children, G being a married woman and wife of B, conveys only an estate to A and B in trust for G and her children born and thereafter to be born.
    3. A conveyance in trust, or to the use of another, which prescribes no duties to be performed by the trustee, but leaves him a mere passive title, vests the legal title in the cestui que trust. But this rule does not apply to a conveyance to one in trust for a married woman and minor children incapable of contracting in regard to their property. In such case the legal estate will not vest in the cestui que trust, but will vest in the trustee for the cestui que trust.

    4. Conveyance—to the grantee “and her children,” construed asinchiding after-born children. A husband, and his son by a former wife, purchased a tract of land, taking the conveyance in their names as trustees for the second wife “and her children:” Held, that the words, “and her children,” were words of purchase and not of limitation, but to be read conjointly with the name of the mother, and that the transaction being in the nature of a family settlement, provision was intended to be made for after-born children as well as those in being at the time. In such case the trustees hold also for children that may thereafter be born.
    5. Notice—from recitals in prior deed. In all cases where a purchaser of land can not make out a title except by a deed which leads him to another fact, whether by description of the parties, recital or otherwise, he will be chargeable with notice of such other fact. So where his grantor’s title papers show that he has only an estate in trust for another, the purchaser will take subject to such trust.
    6. Limitation—act of 1839—good faith. A deed for land taken with notice that the grantor held the title in trust for another, can not avail as color of title under the seven years’ limitation law; but a deed from the latter, while claiming title, to another without notice of the defect in his chain of title, is good color of title under such law.

      Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    This was a bill in equity, exhibited in the De Kalb circuit court on the 18th day of February, A. D. 1876, by Robert Furniss Long, Elizabeth Long, Harry C. Long, Alicia Lucia Burton, John Burton, Eleanor M. Taylor, Charles A. Taylor, Alice E. Long and Albert D. Long, against Erastus Dean and George M. Hadden, and alleging, in substance, that Robert Whatkinson Long caused to be purchased of the United States the south half of the south-east quarter, and south half of the south-west quarter, of section 36, town 39 north, range 4, in De Kalb county, Illinois, 160 acres; that the money to buy it was furnished by Robert Whatkinson Long, and the purchase was made for the benefit of said Elizabeth Long and her children, and that the title to same was placed in Robert F. Long and Robert Wliatkinson Long, in trust for the benefit of said Elizabeth Long and her children, on or about August 1, 1853; that a trust patent of that import was issued by the United States to said parties; that Alicia Lucia Burton, Eleanor Mary Taylor, Alice E. Long, Albert D. Long and Harry C. Long are all the children of Elizabeth Long, and the only children; that Robert Whatldnson Long died in Illinois in 1869, and that he was the step-son of said Elizabeth, and son of Robert Furniss Long, who is the husband of said Elizabeth and the father of all the others above named; that the said children of the said Elizabeth Long are aged, respectively, from twenty-one to thirty-two years of age; that the legal title of said lands was placed in said trustees for the use and benefit of said Elizabeth and her children, and to place it beyond her power to encumber or dispose of it, etc.; that one Erastus Dean is now in possession of the south half of the south-west quarter of said section 36, and claims to be the owner in fee, and that he derived title from one George M. Hadden, and that said Hadden claims to have acquired the title to the same through a pretended purchase, etc., made by said Robert F. and Elizabeth Long, but they deny that said Hadden ever had any valid deed, that it is void, etc.; that Hadden knew that the title was a trust title, in said Robert F. and Robert W. Long, exclusively to and for the benefit of the said Elizabeth and her children, and that he could not get a good title, etc.; that the deed was made to said Hadden in payment of money loaned by him to said Robert Furniss Long at usurious rates of interest, and which had been used by him in his individual character, and not in his character as trustee, etc., and that the whole transaction was a fraud and a violation of the trust, etc.; that Hadden went into possession of the said land in the year 1855, and he and his grantees have had possession ever since, and have had all the rents, etc., and that they refuse to recognize the claims of the complainants, etc.; that said Dean knew all about the rights and claims of complainants when he bought it, and took his chances; that it is worth $50 per acre, and that the rents have been worth $250 per year, and that they ought to have these rents, and that Hadden and Dean should be made to account, and that they are ready to pay back all the taxes. The bill prays for answer, but not under oath, and that the title in Dean be set aside and declared to be in the complainants, and that an accounting be had of the rents and profits and taxes, etc.
    Hadden and Dean answered, jointly and severally, but not under oath, in substance, that Hadden, about the year 1853 or 1854, was induced to buy a note of the said Robert Furniss Long, which said Long claimed to own, against one Shackleton ; that Hadden would not buy it, but after repeated solicitations did buy it, on the condition that Long should get it changed so it would run at ten per cent; that he sent away and in a few days came back with the note changed to ten per cent; that Long said he had seen Shackleton, and it was all right, etc.; that Hadden soon learned that Shackleton had not authorized the change, and that Long had made 'it without the assent of said Skackleton; that Hadden then insisted that he secure him, which he did by a bond for a deed and a mortgage, and afterwards, to pay it, Long and wife gave Hadden a deed of the said land; that Hadden had no knowledge whatever of the trust now claimed, and did not know that anybody had any interest in it but the said Long and "wife, as said Long stated; claims that the land was in fact bought with the money of said Long, and that his son never paid anything towards it, and that if such patent was so issued, it was so done for some dishonest purpose; that said Long, always regarded and treated it as his own, and no one else ever exercised any control over it, and that he was, in fact, the owner; that at the time the said land was entered, several of the complainants were not bom; that the statement that the land at that time belonged to the said wife and children, is a cheat and a fraud; that said Bobert Whatkinson Long was a rascal, had no money, and had to run the country on account of some rascally work, and if the said patent issued as in said bill stated, it did not give-the said wife and children any interest, as it does not describe what is their interest, and also that it was done to cheat creditors, etc.; that said Hadden held the land for two or three-years, paid a large amount of taxes, and then sold and conveyed it to said Dean for a valuable consideration, and that said Dean never has received to this day any notice of any such claim; that he at once took possession, and built a house,. and has otherwise improved it to a large extent, to the amount of $5000 or thereabout, and has continued his said possession thence hitherto, and paid all the taxes, etc., to the amount of $2000 more, and he claims the benefit of the seven years’ limitation, etc.; that no taxes have been offered to said Hadden,, or to said Dean, as a tender for taxes paid, and they claim that even if the said wife and children ever had any interest in the land, they have long since lost it by laches; that all the children are of full age, and have been so for more than three years previous to the filing the said bill, (at least all of them that were in existence at the time of the entry of said land,) and that all the parties are estopped, etc.; deny all other allegations in the bill not otherwise answered.
    Replication was filed to the answer. The cause was continued, from time to time, until the 26th day of- June, A. B. 1882, when, by agreement of parties, the venue was changed to the circuit court of Kane county. Thereafter, on the 11th of Becember, A. B. 1882, the death of the defendant George M. Hadden was suggested. Subsequently, his heirs-at-law were made defendants, and duly summoned, and a guardian ad litem was appointed for the minor defendants, who filed the requisite answer. The cause was then again continued, from time to time, until the 19th day of Becember, A. B. 1884, when the death of the complainant Robert Furniss Long was suggested.
    The cause was heard at the April term, A. B. 1886, of the Kane circuit court, but the court took time for advisement, and, at the next following October term, decree was rendered. The decree finds that the United States, in 1853, conveyed, by patent, the land in said bill mentioned, to-wit, the south half of the south-west quarter of section 36, township 39 north, range 4, east of the third principal meridian, to Robert F. Long and Robert W. Long, as trustees, for the use of Elizabeth Long, wife of Robert F-. Long, and her children; that said grantees were naked trustees, having no duties to perform and no trusts to execute, and that the title to said land, immediately upon the issuing of said patent, became vested in said Elizabeth Long and her children, in like manner and to the same extent as if they had been named as grantees in said patent, and they, the said Elizabeth Long and her children, held said lands in fee simple, as tenants in common thereof; that June 13, 1855, the said Elizabeth Long, and Robert F. Long, her husband, joined in a deed of conveyance-of said lands, with full covenants of warranty, to George. M. Hadden, one of the original defendants herein, whereby the said Hadden succeeded to the interest of said Elizabeth Long, and became a tenant in common of said lands with the children of said Elizabeth Long; that January 9,1865, the said Hadden conveyed, by warranty deed, to the defendant Erastus Dean, the 'said land, and that said Dean entered into immediate possession of said land, and from thence hitherto continued in such possession; that said Dean, ever since the time of his purchasing and taking possession of said lands, as aforesaid, has in good faith paid all the taxes and assessments on said lands, without any notice of or information (until the commencement of this suit) that the children of said Elizabeth Long, or any other person than said Hadden, had, or claimed to have, any right, title or interest in or to said land; that said Hadden p>aid all the taxes and assessments on said land, from the time of his purchase thereof, in 1855, to the date of his conveyance of same to said Dean, in 1865; that at the time of the commencement of this suit, the said Henry C. Long was the only one of the children of the said Elizabeth Long who was under the age of twenty-four years, he then being in his twenty-second year; that at the time of the birth of said Henry C. Long, Elizabeth Long had four other children, thus making the share of each child in the ownership of said land one-sixth. It is therefore decreed, that by the conveyance of said Elizabeth Long and her husband to said George M. Hadden, one-sixth of the title to the said lands was vested in said Hadden, and the other five-sixths were vested in the five children of said Elizabeth Long, as tenants in common; that said Elizabeth, having conveyed her interest in said land to said Hadden, had no interest in said land at the commencement of this suit, and that all the other complainants, except the said Henry 0. Long, having failed to make any claim or to assert their rights to said land within three years next after their majorities, respectively, were, at the time of the commencement of this suit, barred of all right, claim, title or interest of, in and to said land, and at such time had no rightful claim, demand or interest to or in said land, the defendant Dean having, for more than seven successive years prior thereto, been in the actual possession thereof under claim and color of title made in good faith, and during all said time having paid all taxes and assessments levied on said land; and said Dean and said Hadden, under whom he claimed, having been in the actual, exclusive and adverse possession of said land for more than twenty years prior to the commencement of this suit, it is therefore adjudged and decreed that as to all of said complainants, except the said Henry C. Long, the bill be dismissed. The court further finds that the said Henry C. Long, at the date of said patent, was not then born, yet being the child of the said Elizabeth Long, though born subsequent to the date of the patent, and the patent not limiting the grant to the children then in esse, it included the said Henry C. Long. It is therefore adjudged and decreed that the said Henry' C. Long is the owner of, and entitled to recover, an undivided one-sixth part of said land in fee simple absolute.
    By agreement of parties no decree or order was made in respect to rents and profits, which are reserved for future consideration.
    The patent for the land reads as follows:1
    “Whereas, Robert Furniss Long and Robert Whatkinson Long, in trust for Elizabeth Long and her children, of Cook county, Rlinois, have deposited in the general land office of the United States a certificate of the register of the land office at Chicago, whereby it appears that full payment has been made by the said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid, according to the provisions of an act of Congress on the 24th of April, 1820, entitled “An act making further provision for the sale of public lands,” for the south half of the south-east quarter, and the south half of the south-west quarter, of section 36, in township 39, of range 4, in the district of lands subject to sale at Chicago, Illinois, containing one hundred and sixty acres according to the official plat of the survey of said lands returned to the general land office by the Surveyor General, which said tract has been purchased by the said Bobert Furniss Long and Bobert Whatkinson Long, trustees as aforesaid.
    “Now, know ye that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant, unto the said Bobert Furniss Long and Bobert Whatkinson Long, trustees as aforesaid, and to their hens, the said tract above described, to have and to hold the same, together with all the rights, privileges, -immunities, appurtenances, of whatsoever nature thereunto belonging, unto the said Bobert Furniss Long and Bobert WTiatkinson Long, trustees as aforesaid, and to their heirs and assigns forever.”
    Then follow the .attestation, signature, etc., on the 1st day of August, A. D. 1853. It was filed for record in the recorder’s office of De Kalb county, on the 18th day of February, 1876.
    The following facts were stipulated by the parties to be true, and to be received as evidence in the case.
    First—The United States patent in both of said bills mentioned as a trust patent to the said Longs, was not recorded prior to the commencement of these suits in said De Kalb county.
    Second—The children of Elizabeth Long and Bobert F. Long, two of the complainants in said bills, at the time of the filing said bills in said causes, were aged, respectively, as follows: First, Mrs. Lucy Burton, thirty-five years, eleven months, seventeen days; second, Mrs. Eleanor Taylor, thirty-three years, one month, seventeen days; third, Alice E. Long, twenty-six years, seven months, nine days; fourth, Harry C. Long, twenty-one years, seven months, nine days; and fifth, Albert D. Long, twenty-four years, three months.
    Third—-George M. Hadden (defendant, now dead,) received the property mentioned in the bills of complaint in the above causes, by a warranty deed from said complainants Robert F. Long and Elizabeth Long, (patents were not on record,) which deed was recorded in said DeKalb county, June 15,1855, and that said Hadden went into possession immediately, and he and his grantees have been in possession of the same and paid taxes ever since that time.
    Fourth—That defendants O’Boyle, in one of said causes, and Dean, in the other, are the grantees of said Hadden, and have each been in undisturbed possession of their respective portions of said premises, and have paid the taxes thereon for more than seven years next prior to the commencement of these suits.
    Fifth—The defendants then offered and read in evidence the warranty deed of Bobert F. and Elizabeth Long to George M. Hadden, dated June 15,1855, and recorded in the recorder’s office of DeKalb county, Illinois, in book 14 of deeds, page 603. This deed is the old long form of warranty deed, with full covenants, conveying to Hadden the south half of the southeast quarter, and the south half of the south-west quarter, of section 36, town 39 north, range 4,—160 acres.
    Sixth—Defendants next offered and read in evidence a warranty deed from George M. Hadden and wife to Erastus Dean, dated January 9, 1865, and recorded in the recorder’s office of DeKalb county, Illinois, in book 32 of deeds, page 455. This deed is the old long form of warranty deed, with full covenants, conveying to Dean the south half of the south-west quarter of section 36, aforesaid,—80 acres.
    Seventh—Defendants next offered in evidence the affidavit of Erastus Dean, subscribed, sworn and filed June 25, 1886, which was allowed to be read and received in evidence, by agreement of parties, the same as if sworn in open court on trial, subject to all other legal objections that might exist to it as evidence. Said affidavit is entitled in this cáse, and is as follows: “Erastus Dean being first duly sworn, says that since the date of his deed offered in evidence herein, and prior to the commencement of this suit, he has occupied said land therein described, in good faith, without notice of claimant’s rights, and built a house worth $700, built stables and sheds worth $400 and over, dug a well at the cost of $75, put in two hundred rods of hedge fence, and otherwise fenced the above tract with several hundred rods of fence.”
    Certain depositions were also read in evidence, on behalf of complainants, which are sufficiently noticed in the opinion. Errors were assigned, presenting the questions discussed in the opinion.
    Mr. M. 0. Southworth, and Messrs. Hopkins, Aldrich & Thatcher, for the appellants:
    Elizabeth and Robert F. Long, as to the heirs of Hadden, deceased, were incompetent witnesses. Merrill v. Atkin, 59 Ill 19; Langley v. Dodsworth, 81 id. 86; Branger v. Lucy, 82 id. 91; Ruckman v. Alwood, 71 id. 155; Pyle v. Oustatt, 92 id. 209; Wachter v. Blowney, 104 id. 610 ; Cassel v. Cassel, id. 361.
    Robert W. Long and Robert Furniss Long took no estate whatever. They being mere naked trustees, with no duties to perform, the title vested at once in Elizabeth Long and those who were then her children. Rev. Stat. chap. 24, sec. 3; Perry on Trusts, sec. 298; Witham v. Brooner, 63 Ill. 344; Lynch v. Swayne, 83 id. 336; Kirkland v. Cox, 94 id. 400.
    A grantee has a right to suppose that his grantor has all the title that he claims to have in the deed of conveyance that he gives. Rodgers v. Kavanaugh, 24 Ill. 583.
    Where a trustee is in actual possession of the estate, (as in this case,) and for a valuable consideration conveys it to a purchaser who has no notice of the trust, such purchaser will be-entitled to hold the estate against the cestui que trust, because their equities were equal; and the court will leave the parties in the state in which it finds them, where equities are balanced. Tiffany & Bullard on Trusts, p. 818, and authorities cited, and p. 820, on the doctrine of notice; Dennis v. McCagg, 32 Ill. 429.

      So we say in this case, that the children who were in being at the time of the issuing of the patent by the government, took the title to the real estate with their mother, to the exclusion of said Henry C. Long, who was not only born thereafter, but who was, as we have already shown, begotten after the title had vested.
    An immediate gift to children,—i. e., a gift to take effect in possession immediately on the testator’s decease,—whether it be to the children of a living or a deceased person, or whether to children, simply, or to all the children, or whether there be a gift over in case of the decease of any of the children under age or not, comprehends the children living at the testator’s death, and those only. 2 Jarman on Wills, (5th ed.) 156; Handberry v. Doolittle, 38 Ill. 206; Jenkins v. Freyer, 4 Paige, 46.
    Messrs. Maybobne, Floweb, Remy & Holstein, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We have arrived at the same conclusion reached by the chancellor below, but by a somewhat different process of reasoning.

We are inclined to think the depositions of Robert Furniss Long and Elizabeth Long, two of the complainants, taken after the death of Hadden, were incompetent to be read in evidence as against his heirs-at-law, and they prove nothing that we deem of any moment against Dean, his grantee. But omitting those depositions, the patent establishes, beyond all question, that the only title that Robert Furniss Long had in the land was as joint trustee with Robert Whatkinson Long, for the wife of the former, Elizabeth Long, and her children. The patent recites that “Robert Furniss' Long and Robert Whatkinson Long, in trust for Elizabeth Long and her children, of Cook county, Illinois, have deposited in the land office of the United States a certificate of the register of the land office at Chicago, whereby it appears that full payment has been made by the said Robert Furniss Long and Robert. Whatkinson Long, trustees as aforesaid,” for the tract of land therein described, adding: “Which said tract has been purchased by said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid, and the land is therefore conveyed unto the said Robert Furniss Long and Robert Whatkinson Long, trustees as aforesaid.” There is nothing in the record tending to contradict this recital, and it must therefore be accepted as conclusive as to the facts recited, and therefore that a trust, only, is conveyed by the patent.

The case is unlike Witham v. Brooner, 63 Ill. 344, Lynch v. Swayne, 83 id. 336, and Kirkland v. Cox, 94 id. 400, where it was held, that under the operation of section 3, chapter 24, of the Revised Statutes of 1845, a conveyance in trust, or to the use of any person, which requires no duties, prescribes the execution of no trust, but leaves the trustee only a passive title, carries to the cestid que trust lawful seizin, estate and possession. The trust here created is for a married woman and her children. At the date of its creation she was not, under the law then in force, sid juris, in all respects, with reference to her separate property, and some or all of her children were then minors, and therefore incapable of legally contracting in regard to their property; and in such cases it is held the statute will not vest the estate in the cestui que trust, but the estate will vest in the trustee for the cestui que trust. Perry on Trusts, (1st ed.) secs. 310, 311, and authorities cited in note 1, on page 29.0, and in note 3, on page 291.

We are unable to agree with counsel for appellees, that the language employed in this patent created a life estate in Elizabeth Long,.with remainder over, after her death, to her children. There is no language creating a particular estate in Elizabeth Long, and that is indispensable to the creation of a remainder. No words are employed showing an intention to carve out a life estate." We agree with them that the words, '“children,” here, are words of purchase and not of limitation, but they are to be read conjunctively with the name of Elizabeth Long. The pleadings show that Robert Furniss Long was the husband, and that Robert Whatkinson Long was the ■step-son, of Elizabeth Long. The transaction was therefore in the nature of a family settlement, in which the present as well as the remote welfare of the children was as much an object of concern as the present and remote welfare of Elizabeth Long. In such cases, the rule relied upon by counsel for appellant, as laid down in Handberry v. Doolittle, 38 Ill. 206, does not apply. That applies only to cases where a class of persons are to come into immediate possession upon the death of the testator. Here, the object and intention is the support of a family, in which after-born children are as much the concern of the donor as those then in being; and so it is said: “Whenever the fortune of a married woman is within the jurisdiction of the court, either by having been paid into court or by a suit concerning its possession, the court always directs :an inquiry whether a settlement has been made; and the constant habit is to direct a settlement, not only upon the wife, but upon the children also. The wife can not say that she claims a settlement for herself, and not for the children. She has the, option to have no settlement; but if a settlement is made, it must be upon the wife and children.” Perry on Trusts, (1st ed.) sec. 627. And this includes children unborn as well as those ■ then in being. (1 Bishop on the Law of Married Women, ■sec. 673.) And so a grant to a wife, and her child begotten by ihe grantor, has been held to give a joint estate to the wife and a child subsequently born. (Powell v. Powell, 5 Bush, 619.) And so, “if there be a devise or limitation to the use of the ■children of A, the estate may vest in joint tenancy in one, and afterwards in other children, as they progressively are born.” 4 Kent’s Com. (8th ed.) 376, *359. A conveyance, as here, to the use of a woman and her children, plainly means to her and all of her children, the right vesting in each child, > successively, as born. No other view is consistent with the object and purpose of such a limitation.

It is not pretended, in the view that the legal estate did not vest in the cestuis que trust, eo instanti, the execution of the deed, that there is any difficulty in the trustees holding for the benefit of the unborn child. Hadden was not a purchaser in good faith, without notice. The only proof in regard to his obtaining title is, that Robert Furniss Long and Elizabeth Long conveyed to him, and he immediately went into possession. The rule is thus laid down by Sugden, in his work on Vendors, (8th Am. ed.) vol. 2, page 561: “In all cases where a purchaser can not make.out a title but by a deed which leads him to another fact, whether by description .of the parties, recital or otherwise, he will be cognizant thereof, for it was crassa negligentia that he sought not after it.” Hadden, here, could not make out a title but by the patent, and that being obtained would have disclosed the trust, for there is not the slightest pretense that any other title was exhibited as that under which they held. It was by reason of his own gross negligence that he did not know the contents of the patent,—if, in fact, he did not know them,—and he could, therefore, only have taken under the deed to him, subject to the trust. But his deed to-Dean was clearly color of title, and on Dean’s part it was obtained in good faith; and since there was the requisite proof of possession, and payment of taxes thereunder, and the lapse of more than the period of seven years between the time Dean obtained it and the bringing of suit, the bar of the Statute of Limitations is complete as to all the parties except Harry 0. Long, who was only twenty-one years and some odd months old when the suit was brought, and who, consequently, is within the saving clause of the act.

We are, therefore, of opinion that neither the errors nor cross-errors are well assigned, and the decree below is affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    The Chicago and Eastern Railroad Company v. Isaac W. Holland.

      Filed at Ottawa September 26, 1887.

    1. Evidence-—physical examination of plaintiff in suit for personal injuries. In an action against a railway company to recover for personal injuries to the plaintiff, occasioned by negligence, the defendant asked for an order of court that the plaintiff submit to an examination by certain physicians named in the motion, which was overruled. Something over a year later the defendant sent two physicians of its selection to examine as to plaintiff’s physical condition, one of whom had before made a thorough examination, who was not admitted, but the other was, and made an examination. Still later, another of the physicians named in the motion was allowed to make a thorough examination of the plaintiff: Held, that as the •q defendant had the benefit of an examination by three of its physicians, it could not complain of the overruling of its motion.
    2. Same—statements and declarations—as part of the res gestae. In an action by a party injured by a collision with a railway train, against the railway company operating such train, the plaintiff will have the right to show the position of the defendant’s train, and what precaution, if any, the conductor in charge of the train had taken to guard against danger; and the statements or declarations of the conductor a few moments before the collision, being a part of the res gestee, may be shown for that purpose.
    3. Same—proving contents of letter on cross-examination. On the trial of a case the defendant laid the foundation for the introduction in evidence of a letter handed to a witness, who identified the letter, and, on his direct examination, stated its contents to the jury. On cross-examination the letter itself was allowed to be given in evidence: Held, no error. If its contents were proper evidence for the defendant, the letter itself was also for the plaintiff.
    4. Practice—specific objection—when to be made. On the trial of an action to recover damages for a personal injury, the plaintiff proved the amount he had paid and incurred for medical treatment, which was objected to as “incompetent, immaterial and irrelevant:” Held, that it could not be assigned for error that the evidence should not have been admitted without proof that the physicians for whose services the expense was incurred, were entitled to practice, as that objection, if tenable, might have been obviated on the trial, if specifically made. A specific objection, which may be obviated, must be made on the trial before it can be urged on appeal.
    5. Same—remarks of cowt as to evidence. On the trial of an action for a personal injury, during the examination of a physician as -to his opinion in regard to some of the theories advanced by medical writers, the~ defendant’s counsel read a long quotation from'a medical work, and asked the opinion of the witness as to the correctness of the extract, when the-court remarked: “I have a book written in Spanish, by a Mexican lawyer, and I may as well rerad that to him (witness) as your reading medical books to them:” Held, that as this was no ruling on the admission or exclusion, of evidence, and it not appearing to have injured any one, the defendant could not complain.
    6. Meastjbe op damages—personal injury from negligence. Incaseof personal injury from negligence, the injured party may recover such actual damages as are the natural and proximate result of his injury, such as his loss of time, his pain and suffering, his necessary and reasonable • expenses in medical and surgical aid and nursing, as shown by the evidence; and if the injury is permanent and incurable, the jury, in assessing.the damages, may take such fact into consideration. The fact that he has • a wife living, can not, however, be considered by the jury in fixing the - plaintiff's damages.
    7. Instbtjotion—construed—as whether leading jury to give exemplary - damages. In an action for damages for an injury claimed to be the result of defendant’s negligence, the court instructed the jury, at plaintiff’s request, that in determining the question of negligence they should take into - consideration the conduct of both parties at the time of the alleged injury, as disclosed by the evidence; and if they believed, from the evidence, that the injury complained of was caused by the negligence of the defendant’s servants, as charged in the declaration, aud if they further believed, from-the evidence, that the plaintiff was without fault, and was exercising ordinary care and prudence in the discharge of his duties, then the plaintiff ’ was entitled to recover such damages as the jury might believe, from all the evidence, he was entitled to receive, as a compensation for all the injuries received and suffered by him in the premises. No exemplary damages - were claimed by the pleadings or evidence: Held, that the instruction, was not subject to the objection that under it the jury might give exemplary damages.
    8. Same—repeating propositions of law in, different words. If the jury has been properly instructed as to the law involved in a case, the judgment-, will not be reversed, although some of t¿e refused instructions may contain correct statements of the law. And there will be no error in the modification of an instruction, when the substance of it, as asked, has been-given in another one.
    9. Same—numerous instructions not encouraged. The practice of giving a great many instructions in a case involving no difficult or complicated', questions of law, should not be encouraged, as they ordinarily tend to mislead rather than to enlighten the jury.
    10. New obiad—improper remarks of juror. On the trial of an action, against a railway company to recover damages for a personal injury alleged? to be the result of negligence, while defendant’s counsel was stating the case to the jury, and what the evidence would show, one of the jurors said, “That won’t help you a bit,—that will not do you any good:’’ Held, that while the remark was improper, and the juror deserved a small fine, yet the irregularity was not such as to,require the reversal of a judgment in favor of the plaintiff.
    11. Appeal—reviewing facts—question of excessive damages. Whether the damages are excessive in an action on the case for personal injury from negligence, depends upon the facts, and when the judgment of the trial court is affirmed by the Appellate Court, its decision on that question is conclusive on this court.
    Appeal frooi the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph B. Gary, Judge, presiding.
    This was an action on the case, brought by Isaac W. Holland, against the Chicago and Eastern Illinois Bailroad Company, to recover damages for a personal-injury to the plaintiff, caused, as is alleged, by the negligence of the defendant’s servants. The plaintiff, at the time he was injured, was in the employ of the Chicago, Bock Island and Pacific Bailway Company, as a conductor in charge of a suburban passenger train running on one of the lines of that company, between the city of Chicago and South Chicago.
    Several months prior to the trial, the defendant moved for a rule on the plaintiff, requiring him to submit his person to the examination of certain physicians and surgeons, which motion was denied.
    A trial resulted in a verdict and judgment in favor of the plaintiff. On appeal by the company, the Appellate Court affirmed that judgment. On the further appeal of the company, the cause is brought to this court.
    Mr. William Armstrong, for the appellant:
    The court erred in overruling appellant’s motion requiring appellee to submit to an examination of physicians as to his physical condition and health. Parker v. Enslow, 102 Ill. 272; Freeport v. Isbell, 93 id. 381; Schroeder v. Railroad Co. 47 Iowa, 375; 2 Bishop on Marriage and Divorce, sec. 590, et seq., and notes; Walsh v. Sayre, 52 How. 334; Rogers on Expert Testimony, p. 106, sec. 75; Lloyd v. Railroad Co. 53 Mo. 509.
    The court erred in admitting incompetent testimony by the witnesses Heckler and Healy. Railroad Co. v. Johnson, 103 Ill. 512; Railway Co. v. Fillmore, 57 id. 266; Railroad Co. v. Hunter, 33 Ind. 347; Luby v. Railroad Co. 17 N. Y. 131; Moore v. Meacham, 10 id. 207; Lane v. Bryant, 9 Gray, 245.
    It was error to allow evidence of the expenses paid and incurred to physicians, without proof that they were authorized to practice. Chicago v. Honey, 10 Bradw. 535 ; City v. Henry, 11 id. 154.
    The remarks of the court as to the examination of medical experts, and as to extracts from medical works, were improper. Rolling Mill Co. v. Monica, 107 Ill. 340; Insurance Co. v. Ellis, 89 id. 516.
    The juryman John Beilly was not a competent and disinterested man, as evidenced by his remarks and conduct on the trial.
    The first of appellee’s instructions authorized the assessment of exemplary damages, which are not recoverable. Bridge Association v. Loomis, 20 Ill. 236; Railroad Co. v. Avery, 10 Bradw. 210; Railroad Co. v. Payzant, 87 Ill. 125.
    The third of appellee’s instructions does not correctly state the law of comparative negligence. Railroad Co. v. Clark, 108 Ill. 113; Railroad Co. v. Johnson, 103 id. 512; Railroad Co. v. Manly, 58 id. 300.
    The court erred in modifying appellant’s thirtieth instruction. As asked, it stated the law correctly. The failure of the plaintiff to exercise ordinary care will prevent a recovery. Railroad Co. v. Hazzard, 26 Ill. 473; Railroad Co. v. Dewey, id. 255; Railroad Co. v. Simmons, 38 id. 242; Railroad Co. v. Gretzner, 46 id. 76; Railway Co. v. Sweeney, 52 id. 325; Railroad

      Co, v. Damerell, 81 id. 450; Railroad Co. v. Lee, 68 id. 580; Railroad Co. v. Johnson, 103 id. 512; Abend v. Railroad Co. 111 id. 202; Steel Co. v. Martin, 115 id. 359.
    That the damages ($25,000) are excessive, see Railroad Co. v. Jackson, 55 Ill. 492; Railroad Co. v. Fillmore, 57 id. 265; Railroad Co. v. Wilson, 63 id. 167.
    Messrs. G-. W. & J. T. Kretzinger, for the appellee:
    No question of fact can he considered or reviewed by this court. Railway Co. v. Peyton, 106 Ill. 534; Williams v. Forbes, 114 id. 167; Insurance Co. v. Barrel Co. id. 99.
    Ordinary care, negligence, the extent of the injury and the amount of the damages assessed, are all questions of fact. Furnace Co. v. Abend, 107 Ill. 144; Railroad Co. v. Frelka, 110 id. 498; Pennsylvania Co. v. Conlan, 101 id. 93; City of Mattoon v. Fallin, 113 id. 249.
    The question of excessive damages was a question exclusively for the Appellate Court, and its decision is final. Railroad Co. v. Frelka, supra; Railway Co. v. Peyton, supra; Beeler v. Webb, 113 Ill 436.
    The effect and weight of evidence will not be considered in this court. Railroad Co. v. Martin, 111 Ill. 235; Railroad Co. v. Bonifield, 104 id. 224; Beard v. Maxwell, 113 id. 440.
    No proper evidence was refused by the court below. No improper evidence was admitted on behalf of appellee, and no proper objection was made or exception taken to evidence admitted on behalf of appellee. Tarble v. People, 111 Ill. 123.
    A general objection to the testimony of a witness will not be considered. Myers v. People, 26 Ill. 176; Wilson v. King, 83 id. 235.
    Appellant asked forty-two instructions, nineteen of which were given. This court will not examine the others to see if they were properly refused. Adams v. Smith, 58 Ill. 418; Elam v. Badger, 23 id. 419; Young v. People, 109 id. 646.

      The error assigned as to the remarks made by one of the-jurors during the opening statement of the defence, was not saved by objection or exception, and no injury is shown from such remarks. Tarble v. People, supra; Nathan v. Bloomington, 46 Ill. 347.
    No error in the remarks of the trial court, because no injury could have resulted therefrom. Skelly v. Boland, 78 Ill. 439; Beardsley v. People, 89 id. 580.
    The action of the court refusing an order for the appelleeto submit to an examination of medical experts, out of court, and long before the trial, was not error, because—
    First—The court had no power to make or enforce such an order. Parker v. Enslow, 102 Ill. 279; Roberts v. Railroad Co. 29 Hun, 155; Lloyd v. Railroad Co. 23 Mo. 515.
    Second—The record shows that afterward appellee, without objection, submitted to an examination by medical experts selected by appellant, and their testimony was received on the trial. Railroad Co. v. Finlayson, 18 Am. and Eng. R. R. Cas. 68.
    Even if the action of the court was erroneous, if appellant was not injured by it, it can not complain. Shelly v. Boland, 78 Ill. 439; Young v. McConnell, 110 id. 84; Zimm v. People 111 id. 49.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 13th day of October, 1883, appellant appeared in court, and filed a motion, in writing, asking for an order of court that appellee submit to an examination by two physicians, who are named in the motion. The court overruled the application, and the decision is assigned for error. Whether this decision was erroneous or not, is a question which it will not be necessary here to determine. On the 15th day of December, 1884, the appellant sent two physicians of its own selection to the residence of appellee, for the purpose of making an examination of his physical condition. One of the physicians had previously made a thorough examination, and he was not admitted. The other one, however, was admitted, and made an examination. On the 20th day of December, 1884, appellant sent Dr. H. W. Lyman, who was one of the physicians named in its motion. He was admitted, and made a thorough examination of appellee. In what manner appellant was injured by the decision overruling the motion, is not apparent. Had the motion been allowed, an examination would have been made by two physicians. The motion was denied, but an examination was, in fact, made by three physicians of appellant’s own selection. Nothing was lost by the decision, as appellant was allowed an examination, which was all it asked by the motion. The fact that the examination was made at a later period than it would have been made had the court allowed the motion, so far as appears, was a matter of no moment.

It is next insisted that the court erred in the admission in evidence of the conversation of James A. Healy and James C. Heckler with the conductor of appellant’s train, which occurred a moment before the collision. The evidence of Healy was as follows: “I saw this conductor and spoke to him, and the words I spoke to him were these: ‘Where are you going to ?’ He says, ‘ Going over with my train to back into the PuEman ‘Y,’ over the Eock Island track;’ and the words I said to him were; ‘ You hadn’t ought to do any such thing; you will get catched.” I said, ‘You are doing it on short time.’ I told him we were side-tracked,—that we would not undertake to do it; and I asked him if he was flagging, and he said no,—he didn’t think it was necessary.” The witnesses testified that the conversation occurred only a moment before the eoEision. The plaintiff had a right to show the situation of appeEant’s train, and what precaution, if any, the conductor in charge of the train had taken to guard against danger, and the declarations of the conductor, made at the time they were,—on the eve of the. collision,—were admissible as a part of the res gestee.

A witness was called by plaintiff to prove the amount plaintiff had incurred for medical treatment, and gave the court, both paid and unpaid aggregation, the sum of $184.80. The plaintiff had been treated by several different physicians, and it is insisted that the evidence was incompetent, as there was no proof that these physicians-, or any of them, were entitled to practice medicine under the statute. When the evidence was offered, the objection made to it was, “that it is incompetent, immaterial and irrelevant.” If the law cast the burden upon the plaintiff to prove that the physicians who treated him were entitled to practice, (which, however, we do not decide,) appellant was bound to make the specific objection on the trial, in order that the plaintiff might have an opportunity to remove the objection by proper testimony. The general objection was not enough. It was the duty of appellant to point out the specific objection to the evidence, and a failure to do so will preclude the right to rely upon such specific objection on appeal.

Upon the cross-examination of Dr. Peck, a witness called by appellant, the witness identified a certain letter written by Dr. Durfee in regard to the physical condition of appellee, and the letter was admitted in evidence, and this decision is claimed to be erroneous. The foundation for the introduction of this letter was laid by the appellant on the direct examination of Dr. Peck. The witness stated, on his direct examination, that the letter was handed to him by appellant, and he then proceeded to give its contents to the jury. As a part of the cross-examination of the witness, appellee had the right to read, as evidence, the original letter, to the jury. If the contents were proper evidence for the appellant, which it can not now dispute, the letter itself was likewise competent for appellee.

During the examination of some of the physicians, by appellant, obtaining their opinions in regard to some of the theories advanced by medical authors, certain remarks were made by the court in relation to the practice of reading long quotations from medical works, and. asking the opinions of witnesses thereon, in which the court said: “I have a book written in Spanish, by a Mexican.lawyer, and I may as well read that to him as your reading medical books to them.” It will be observed that the court made no ruling in regard to the admission or exclusion of evidence; and as to the remark made by the court, we can not see that it injured any one, and if appellant was not injured it can not complain.

When counsel for appellant was stating the appellant’s case to the jury, having made a statement that evidence would be brought out which would prove certain facts, one of the jurymen said: “That won’t help you a hit,—that will not do you any good.” While it was improper for a juryman to make a remark of that character, and while the court might, with propriety, impose a small fine on a juryman for a disregard of duty, yet we are not-aware of any authority for reversing a judgment where an irregularity of that character has intervened on the trial of a cause.

Some other complaints have been made, in the argument, in regard to the rulings on the admission of evidence, but without going over them in detail, it is sufficient to say that none of them is of a sufficient magnitude to call upon the court to reverse the judgment.

At the request of the plaintiff, the court gave to the jury three instructions, and they are all claimed to be erroneous. The first one is as follows:

“The jury are instructed, that in determining the question® of negligence in this case they should take into consideration the conduct of both parties at the time of the alleged injury, as disclosed by the evidence; and if the jury believe, from the evidence, that the injury complained of was caused by the negligence of defendant’s servants, as described in the declaration, and if the jury further believe, from the evidence in this case, that the plaintiff was without fault, and was exer- / cising ordinary.care and prudence in the discharge of his duties as conductor of the dummy train, then the plaintiff is entitled to recover in this case such damages as the jury may believe, from all the evidence, he is entitled to «receive, as a compensation for all the damages received and suffered by said plaintiff in the premises, provided the jury find, from the evidence, that the plaintiff was injured as described in the declaration.”

The objection urged against this instruction, as we understand the argument, is, that the jury might, under the terms of the instruction, give exemplary damages. The instruction does not inform the jury that they can give exemplary damages. Such damages were not claimed, either by the pleadings or evidence, and we can not conceive how an intelligent jury could by this instruction be led off upon that field of investigation. The instruction contains a correct proposition of law, and if the appellant thought there was any danger that the jury might enter upon the question of exemplary damages, he ought to have requested the court to instruct the jury, in making up their verdict, to disregard all claims, or supposed claims, on account of exemplary damages.

The second instruction was as follows:

“If the jury find the issues for the plaintiff, then the plaintiff is entitled to recover such actual damages as the evidence may show he has sustained as the direct or approximate result of such injury, taking into consideration his loss of time, his pain and suffering, his necessary and reasonable expenses in medical and surgical aid, and nursing, so far as the same may appear from the evidence in this case; and if the jury find, from the evidence, that the said injury is permanent and incurable, they should also take this into consideration in assessing the plaintiff’s damages; and the jury are instructed that the fact that said plaintiff is married, and that his wife is living, can not be considered by the jury in determining the amount of damages to which the plaintiff is entitled in this case.”

We perceive no error in this charge to the jury. The damages are confined to the direct result of the injury. The loss of time, necessary expenses incurred for medical aid and nursing, are matters always proper to be considered in such cases in determining the amount of recovery. It may perhaps be true that no witness estimated the amount, in dollars and cents, which had been incurred for nursing; but there is abundance of evidence in the record that the plaintiff was nursed and watched over and cared for by day and by night, and by persons, too, not members of the family. Here was ample evidence before the jury from which they might properly consider the nursing, as well as the pain, loss of time, and necessary medical expenses in arriving at the amount the plaintiff might recover.

The third and only remaining instruction given for the plaintiff merely reiterated the rule of comparative negligence which has been approved by this court in a number of decisions.

The appellant requested the court to give to the jury forty-two instructions. The court refused twenty-three,—Nos. 4 to 26, inclusive,—and gave nineteen,—Nos. 1, 2, 3, and 27 to 42, inclusive. No. 30 was, however, modified, and given as modified. The decision of the court in modifying and refusing instructions is relied upon as error.

There were no difficult or complicated questions of law involved in this case, requiring so many instructions. Indeed, such a large volume of instructions ordinarily tends to mislead rather than enlighten a jury, and the practice of giving so many instructions ought not to be encouraged. If, therefore, the jury have been properly instructed in the law involved in the case, the judgment can not be reversed, although some of the refused instructions may contain correct statements of the law.

Instruction No. 30,- which the court modified, aside from a technical objection, contained a correct proposition of law, and it might well have been given as asked. The instruction, in substance, declared that plaintiff could not recover, unless, at the time of the collision, he was exercising due care for his personal safety. But the samé principle was announced in other instructions, so that the jury had the full benefit of the charge as asked, and nothing more could be required. In the first instruction given for the plaintiff, the principle of the modified one is fully given to the jury.. It is there, in effect, declared that it is essential to a recovery that the jury must find that the injury complained of was caused by the negligence of defendant’s servants, and that the plaintiff was without fault, and was exercising ordinary care and prudence in the discharge of his duties. Indeed, the claim was not made that plaintiff could recover unless he was in the exercise of ordinary care at the time of the accident.

It is also said that No. 4 should have been given; but the substance of this was given to the jury in No. 42, and no necessity existed for repeating the same thing in different language. The same may be said of other refused instructions, but it will serve no useful purpose to go over them one by one.

After a careful examination of all the instructions and the evidence in the case, we are satisfied that the jury, in and by the instructions given, were fully and fairly instructed in regard to all the law involved in the case, and this is all that could be desired or required.

Something is said in the argument in regard to the damages being excessive, "hut that is a question which does not arise here. The judgment of the Appellate Court is conclusive upon that question.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The Illinois Central Railroad Company v. The Chicago, Burlington and Northern Railroad Company.

      Filed at Ottawa September 26, 1887.

    1. Removal oe cause—from State to Federal cou/rt—in proceeding under Eminent Domain act, as between two railroad compamies. In a proceeding to condemn a right of way by a railway company over lands held by the Illinois Central Railroad Company, partly under grant of the United States and partly by condemnation, the latter company moved the court to transfer the cause to the Circuit Court of the United States, on the ground that it owed duties to the United States which it could not discharge efficiently if its right of way was taken, which motion was overruled: Held, that there was no error in refusing to so transfer the cause to the United States court.
    2. Eminent domain—condemning the right of way, along the line of one railroad, for the use of another company. The legislature of the State, subject to the conditions in the constitution, has the power, by a general law, to authorize one railway company to condemn a part of the right of way of another, longitudinally, several miles, when necessary for the construction and use of the new road; but without such legislative authority such condemnation can not be had.
    3. The general grant of power given in section 17, chapter 114, of the Revised Statutes, relating to railroads, to take and condemn real estate for railroad purposes, is not intended to extend to property already applied to a public use.
    4. While the legislature have provided by law for the crossing and intersection of one railroad over and across the track and right of way of another, and required the company whose road is crossed or intersected, to unite with the new railway company in forming such intersections and connections, and grant the proper facilities therefor, it has not given a new railway corporation the right to condemn the right of way of a prior company, longitudinally, for a number of miles in length, or any part thereof, to the exclusion of such prior company.
    5. The power to take the right of way, or any part of the right of way, of another railway company, is expressly limited by the statute to the purposes of crossing, intersecting and uniting,-—or, more shortly stated, to the “connections” of the two roads.
    6. The petitioning company has no power, under section 19 of the Railway act, to take any part of the right of way of another company, except for the purpose of some connection resulting from a crossing or intersection, or the uniting and joining of the two roads at some point in the line of the new road selected by the petitioning company.

      7. Statute—rule of construction—to give effect to every provision thereof. A statute should he construed in such manner that all its parts will not •only be consistent with each other, but that every provision thereof shall be given its proper effect, so that nothing therein shall appear to be superfluous or redundant.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. William Broto, Judge, presiding.
    Mr. B. F. Ayer, for the appellant:
    The circuit court erred in denying the petition for the removal of the cause into the Federal court. Boone County v. Patterson, 98 U. S. 403; Pacific Removal cases, 115 id. 17; Insurance Co. v. Pechner, 95 id. 183; Water Co. v. Keyes, 96 id. 201; Stone v. South Carolina, 117 id. 430.
    If some title, right, privilege or immunity on which the recovery depends, will be defeated by one construction of a law of the United States, or sustained by the opposite construction, the case will be one arising under the laws of the United States, within the meaning of the Removal act of 1875. Starin v. New York, 115 U. S. 257; Railroad Co. v. Mississippi, 102 id. 135; Cohens v. Virginia, 6 Wheat. 264; Osborn v. United States Bank, 9 id. 738; New Orleans v. Armos, 9 Pet. 224; Mayor v. Cooper, 6 Wall. 247; Tennessee v. Davis, 100 U. S. 257; Ames v. Kansas, 111 id. 449.
    The act of Congress was intended to secure, and did secure, to the government the free use of appellant’s road, into whose hands soever the property may lawfully come. Railroad Co. v. United States, 93 U. S. 442.
    The grounds of the motion to dismiss are, first, that the plaintiff has no lawful authority to take property in invitim; second, that the property sought to be taken is not subject to condemnation under the laws of the State; and third, that the property is not necessary for the purposes sought for. These questions may be raised by the motion.- Railroad Co.
      v. Trustees, 43 Ill. 303; Railroad Co. v. Dix, 109 id. 237; Railway Co. v. Railroad Co. 112 id. 587.
    The property in question is not subject to condemnation, under the existing laws of this State, for the purposes named .in the petition. Railroad Co. v. Trustees, 43 Ill. 303; People v. Miner, 46 id. 384; Springfield v. Railroad Co. 4 Cush. 63; Railroad Co. v. Railroad Co. 118 Mass. 391.
    A railroad corporation organized under a general law has no right to lay out its road within the right of way of another •company. Such authority might be granted by the legislature, -but has not been granted. Railroad Co. v. Railroad Co. 124 Mass. 368; Matter of Boston Railroad Co. 53 N. Y. 574; Railroad Co. v. Williamson, 91 id. 552; Matter of New York Railway Co. 99 id. 23; Matter of City of Buffalo, 68 id. 167; City of Bridgeport v. Railroad Co. 36 Conn. 255; Cemetery Association v. New Haven, 43 id. 234; Railroad Co. v. Railroad Co. 66 Ill. 174; Railroad Co. v. Town of Lake, 71 id. 333 ; Horse Railway Co. v. Horse Railway Co. 81 id. 523; Railway Co. v. Railway Co. 87 id. 317; Railway Co. v. Railroad Co. 112 id. 589.
    The property is not subject to condemnation, because already ^appropriated to another necessary public use, and because not indispensably necessary for the use of the appellee. The courts "have no power to revise the action of the legislature. Railroad Co. v. Lake, 71 Ill. 336; Bridge Property v. County Commissioners, 103 Mass. 124; Corporration v. County of Norfolk, 6 Allen, 353; Park Commissioners v. Armstrong, 45 N. Y. 243; Secombe v. Railroad Co. 23 Wall. 108; Mills on Eminent Domain, sec. 11, and cases cited.
    Mr. R. H. McClellan, also for the appellant, as to the right of one railway company to condemn the right of way of another, cited Railway Co. v. Railroad Co. 112 Ill. 589, and Railroad Co. v. Railroad Co. 97 id. 507.
    Mr. John N. Jewett, also for the appellant.

      Mr. Charles M. Osborn, Mr. M. D. Hathaway, and Mr. Samuel A. Lynde, for the appellee:
    Property held by the United States, if not used for governmental purposes, may be condemned. Kohl v. United States, 91 U. S. 367; United States v. Bridge Co. 6 McLean, 517; United States v. Chicago, 7 How. 185 ; Railroad Co. v. Railroad Co. 66 Ill. 174; Railroad Co. v. Railroad Co. 97 id. 515.
    Property, of whatever kind or description, held by a railroad corporation, but not used in the performance of its duties to the public, may be taken, under the powers granted by the present statutes of this State, to the same extent and under the same circumstances as property held by individuals may be taken. Railroad Co. v. Railroad Co. 66 Ill. 174; Railroad Co. v. Railroad Co. 87 id. 317; Railroad Co. v. Railroad Co. 75 id. 117.
    Property held by a railroad company, and actually in use in the performance of its duties to the public, may be taken when it is not essential for that use, and the use to which the property is to be put by the corporation seeking to take, is superior in degree to that to which the property is already devoted. Illinois and Michigan Canal v. Railroad Co. 14 Ill. 314 ; Railroad Co. v. Railroad Co. 97 id. 515; 100 id. 21; Railroad Co. v. Railroad Co. 105 id. 408; Railroad Co. v. Railroad Co. 112 id. 589; Railroad Co. v. Railroad Co. 36 Conn. 196; Railroad Co. v. Railroad Co. 83 N. C. 495; Railroad Co. v. Gaslight Co. 63 N. Y. 326; Railroad Co. v. Bailey, 3 Ore. 164; Railroad Co. v. Railroad Co. 7 Foster, 183; Water Power Co. v. Railroad Co. 23 Pick. 316; Blind Asylum case, 43 Ill. 303; Railroad Co. v. Railroad Co. 118 Mass. 291; Railroad Co. v. Railroad Co. 124 id. 368; 53 N. Y. 574; Prospect Park Co. v. Williamson, 91 id. 552; 68 id. 167.
    Where property is necessary for the use of two corporations,, and the corporations and the uses for which the property is-required are substantially of equal importance, if it is practicable for the two corporations to use it jointly, in such a manner as to accommodate the necessities of both, such joint use may be obtained by condemnation, the rule being that priority of occupation gives no exclusive right, except so far as the actual existence of the principal franchise is involved. Railroad Co. v. Railroad Co. 97 Ill. 515; Railway Co. v. Railway Co. 105 id. 117; Town of Lake v. Railroad Co. 71 id. 334; Railroad Co. v. Railroad Co. 67 id. 147; Railroad Co. v. Railroad Co. 96 id. 274; Railroad Co. v. Railroad Co. 108 id. 265.
    As to the character of the necessity which will authorize the taking of property already in public use, see Lake Shore case, 97 Ill. 513; Springfield v. Railroad Co. 4 Cush. 63.
    As to question of removal to the Federal court, see Osborn v. Bank, 9 Wheat. 738; McCulloch v. Maryland, 4 id. 456; United States v. Bridge Co. 6 McLean, 517; United States v. Chicago, 7 How. 194; Kohl v. United States, 91 U. S. 367; Railroad Co. v. Railroad Co. 3 Fed. Rep. 106; Railroad Co. v. Railway Co. 1 McCrary, 304; Baker v. Gee, 1 Wall. 333; Mills Co. v. Railroad Co. 107 U. S. 557; Emigrant Co. v. Adams Co. 100 id. 61; Dowell v. Griswold, 5 Saw. 39 ; Savings Society v. Ford, 114 U. S. 641; Hoadly v. San Francisco, 94 id. 4; Stavin v. New York, 115 id. 248; Tucker v. Ferguson, 22 Wall. 527.
   Mr. Justice Mulkey

delivered the opinion of the Court:

By the present proceeding, the Chicago, Burlington and Northern Eailroad Company seeks to condemn, for railroad purposes, certain real estate in Jo Daviess county, belonging to the Elinois Central Eailroad Company, the appellant herein. That part of the land sought to be taken which gives rise to the most serious question involved in the present controversy, consists of three strips of unequal width, running longitudinally with and constituting a part of so much of appellant’s right of way as lies between the rocky bluffs and the eastern bank of the Mississippi river, between Portage Curve and East Dubuque. Appellant derives title to part of this land through the act of Congress of the 20th of September, 1850, popularly known as the Illinois Central railroad grant. The part of' the right of way thus acquired is two hundred feet wide. The- ■ remainder of it, having been acquired in pursuance of the-statute, is, consequently, but one hundred feet wide. The-track of appellant is laid in the center of its right of way, and the part of it proposed to be taken by appellee is all that part of the westerly half which lies eight feet or more west of the-center line of the track. This would leave but about two feet, between passenger cars passing each other on the two roads..

As the grant from the government to the State, just referred to, and through which appellant derives title to a part of the-right of way proposed to be taken, was made upon the express condition that the appellant’s road and branches “should be- and remain a public highway for the use of the United States, free from toll or other charge upon the transportation of any property or troops of the United States, ” and that the United States mail should, at all times, be transported thereon under the direction of the post office department, and as appellant’s defence to the proceeding is partly based upon the hypothesis-that the whole of its right of way is indispensable to the discharge of the duties wdiich it owes to the government under-said grant, it is contended that the present suit necessarily involves a Federal question, which the appellant has the right to have passed upon and determined by the Federal courts.. Acting upon this view of the law, the appellant applied to the-court below for a transfer of the cause to the Circuit Court of the United States. This application having been denied, the-appellant then filed therein a written motion to dismiss the petition as to each of the’ parcels of land in question, setting; forth the grounds of the motion in numerical order, the fourth, of which we think sufficiently covers the question thereby sought: to be raised, and is as follows:

“4. Because the plaintiff has located its railroad longitudinally for a long distance, to-wit, the distance of ten miles- and upwards, within defendant’s right of way, and the several! parcels of land described in plaintiff’s petition form part of said right of way, and are already devoted to public use by respondent, and are necessary to such use, and there is no necessity that plaintiff’s said railroad should be located within said right of way.”

This motion having also been overruled, was renewed after the evidence was all in, and was again overruled. The jury to whom the cause was submitted, after having been formally charged in respect to the law, returned into court a verdict fixing appellant’s compensation and damages at $40,000, upon which the court rendered final judgment, and the defendant appealed.

Numerous questions are presented by the record, which have been ably and exhaustively discussed by counsel on both sides; yet in the view we have taken of the case it is not deemed necessary, nor indeed proper, to consider but two of them: First, did the court below err in refusing to transfer the cause to the United States Circuit Court ? Second, did the court err in refusing to dismiss appellee’s petition ?

Being of opinion that the second question must be answered in the affirmative, which will necessarily lead to a reversal of the judgment, it will subserve no good purpose to enter upon a discussion of the other. Suffice it, therefore, to say, that upon the authorities cited in the briefs, and for the reasons assigned by appellee’s counsel, we are of opinion the court ruled properly in denying the application to transfer the cause to the United States court.

In considering the propriety of the ruling of the court in refusing to dismiss the petition, either before or after the evidence was in, we do not deem it necessary to enter into an inquiry as to the legal status of appellee, for the purpose of determining whether it is such a body as might, under the constitution and laws of the State, condemn property for the construction and maintenance of its projected road. For the purposes of the conclusion reached, it may be conceded that it is.

The only question we shall consider is, whether the property sought to he condemned is subject to be taken by appellee for the purposes specified in the petition. That the legislature of the State might, subject to the conditions imposed by the constitution, take the property for the purposes in question, we have no doubt. And we think it equally clear, that the legislature might, by a general law manifesting such intention, authorize one railroad company to condemn a part of the right of way of another, to the extent and for the uses proposed in this case; but without such legislative authority or enabling act it is manifest the taking of it would be unauthorized. This is conceded. Such being the case, the question resolves itself into this: Is there any existing legislative authority for taking property, circumstanced as this is, for the purposes and in the manner proposed ? If such authority exists, it is to be found only in sections 17 and 19, of chapter 114, of the Revised Statutes. Said sections, so far as they have any special bearing upon the present inquiry, are as follows:

“Sec. 17. If any such corporation shall be unable to agree with the owner for the purchase of any real estate required for the purposes of its incorporation or the transaction of its business, or for its depots, station buildings, machine and repair shops, or for right of way, or any other lawful purpose connected with or necessary to the building, operating or running of said road, such corporation may acquire such title in the manner that may be now or hereafter provided for by any law of eminent domain.

“Sec. 19. Every corporation formed under this act shall, in addition to the powers hereinbefore conferred, have power: First, to cause such examination and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route, and for such purpose may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages which shall be occasioned thereby. * * * Fourth, to lay out its road, not exceeding one hundred feet in width, and to construct the same, and, for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper ■construction and security of the railway. * * * Fifth, to construct its railway across, along or upon any stream of water, water-cowse, street, highway, plank-road, turnpike or canal, which the route of such railway shall intersect or touch. * * * Sixth, to cross, intersect, join and unite its railways tvith any other •railway before constructed at any point in its route, and upon the grounds of such other railway company, with the necessary turn-outs, sidings and switches, and other conveniences in furtherancé of the objects of its connections; and every corporation whose railway is or shall be hereafter intersected by any new railway, shall unite with the corporation owning such new railway, in forming such intersections and connections, and grant the facilities aforesaid; and if the two corporations can not agree upon the amount of compensation to be made therefor, or the points and manner of such crossings or connections, the same shall be ascertained in manner prescribed by law.”

The principle is well recognized that a statute should be construed in such a manner that all its parts will not only be consistent with each other, but that every provision thereof shall be given its proper effect, so that nothing in the act will appear to be superfluous or redundant. Should we, in violation of this important principle of construction, attempt to construe or give effect to section IT, above cited, without regard to the provisions of the 19th section, we might, by adhering strictly to the letter, and closing our eyes to .the consequences that would result from such a construction, reach the conclusion that that section is a general grant of power to any railroad company organized under the general law, to take, under the Eminent Domain act, any real estate whatever for the purposes specified in the section, without regard to who owns it or to what uses it is applied. It will be observed that the only express qualifications or limitations upon the company’s right to thus take, is its inability to agree with the owner for the purchase of the property, and that the property itself is required or necessary for some of the objects or purposes set forth in the section. Nevertheless, the construction here suggested, although within the literal terms of the act, is, as every one will admit, wholly inadmissible, even without reference to. the. provisions of the 19th section. To give it effect according to its literal terms, the entire right of way of every railroad in the State would be subject to be taken by condemnation, like any other real estate. That the legislature could have-intended this, or the disastrous consequences that would necessarily result from it, is simply absurd, and consequently such a construction is wholly inadmissible. It is evident that if the legislature had intended this grant of power to take real estate for railroad purposes should extend to the right of way of existing railway companies, there would have been no occasion whatever for adopting the special provisions contained in the 19th section in respect to the crossing and uniting with other railways, and it will hardly do to say, that although the power to take the right of way for the purpose of a crossing, etc., is not given by the 17th section, yet 'that it is given for the purpose of a main track, or for some other specific purpose, about which not a word is said in either section.

Viewing the 17th section in the light of the provisions of the 19th, and applying the general principle of construction adverted to at the outset, we are clearly of opinion that the general grant of power therein given to take real estate for railroad purposes, was not intended to extend to property already applied to a public use. This being so, it became necessary, as we have already seen, to provide for the exceptional cases relating to crossings and the uniting with other roads. If there were other exceptional cases in the legislative mind when providing for crossings, etc., it surely was a very opportune time to name them in that connection. Having failed to do so, we are warranted in concluding, as we do, that the special cases provided for were all which, in the judgment of the legislature, public interest or convenience demanded.

Learned counsel for appellee, apparently conscious of the doubtfulness and insecurity of their position, so far as it is rested on the 17th section, seek to entrench themselves behind the sixth clause or division of the 19th section, which, as we have seen, authorizes any corporation organized under the act, “to cross, intersect, join and unite with any other railroad before constructed, and at any point in its route upon the ground of such other railroad." Counsel say: “We think that the court will give a meaning to all the words; and we submit that the word ‘join’ was used advisedly in this statute, to authorize and require railroad companies to join in the use of such property as might become necessary to accomplish the purposes of both railroads; and it will be observed, that by the latter clause of the paragraph the power is given to determine the amount of compensation, under the law of eminent domain, if they can not agree, so that all the powers, viz., to cross, intersect, join and unite with such other road, were intended to be compulsory, and, as we think, were intended to cover every contingency which might arise.”

As we are clearly of opinion the construction here contended for is not the true one, we have given counsel the full benefit of whatever there is in it, by setting out, in their own words, all they have said about it. The terms “join” and “unite, ” as used above, were clearly intended to authorize merely the bringing together and the forming of a physical union or connection between the tracks of the proposed road and those of the one already built. The transitive verbs, “join,” and “unite,” are used conjunctively, and have for their common object the word “railways,” which word they govern in the objective case. Nothing is said about joining in the use of any property, or about co-operating together for any purpose; nor is any expression used from which such an idea can be inferred, without doing violence to the language used. The grammatical sense, and the popular sense of the language used entirely coincide. Nothing ambiguous or doubtful is perceived in it.

But conceding the construction counsel have placed upon it to be the correct one, it is not perceived how that would strengthen appellee’s position, for the object of the condemnation proceeding is not to compel the appellant to “join” in the use of any property. On the contrary, it is to take from appellant, and deprive it absolutely of all right whatever in about one-half of its right of way for a distance of eleven miles or thereabouts. There is, in our opinion, no warrant or authority in the laws of this State for such an act. As the question turns upon the construction of our own statute, it would therefore be an unprofitable consumption of time to follow counsel in their elaborate discussion of the cases relating to this subject, founded upon constitutions and statutes differing from our own, and we must therefore decline to do so.

With respect to the 'claim that the case is one of peculiar hardship, demanding a departure from the general rule on the subject, we submit that conceding the hardship to exist, (about which it is unnecessary to express any opinion,) it is no part of the duty of courts to provide a remedy in any case, much less in one where the legislature has purposely, as it would seem here, declined to provide one. We say purposely declined, because it would be unreasonable to suppose that the legislature did not consider the question whether, under special circumstances, it might not sometimes become necessary for one railroad company to take, longitudinally, the whole or a part of the right of way of another company, to be used for its main tracks; and the fact that no provision was made for a case of that kind affords the strongest evidence that the non-action of the legislature was intentional. If the legislature had intended to confer the power claimed by appellee, how easy and natural it would have been to do so by inserting a provision for that purpose in the fifth clause of section 19. But nothing of the kind was done. There, as it has been seen, power is given to the condemning company “to construct its railway across, along or upon any stream of water, watercourse, street, highway, plank-road, turnpike or canal,” etc. Now, if after the word “canal,” it had been added, “or along and upon the right of way of any other railway company, provided the part proposed to be taken is not necessary for the successful operation of the railway of such other company,” it would have made the law as appellee now claims it to be; but the legislature declined to add these words or any others of similar import, and we must construe the act as it is written. The enumeration of the powers granted by the fifth and sixth clauses of the 19th section, according to a familiar rule of construction, is, by implication, a denial of all other like powers. Expressio unins exclusio alterius.

But in addition to this authoritative rule of construction, and what has already been said on the subject, we think the sixth clause of the 19th section bears upon its face indubitable evidence of the correctness of the construction we have placed upon the act. First, it will be observed that the crossing, intersecting and joining and uniting, therein authorized, is limited to a “point” in the route of the proposed road. The expression used would seem to be altogether inappropriate to the taking of a strip of land extending longitudinally a distance of ten or eleven miles. The phrase, “at any point in its route,” used by the legislature in connection with the words, “cross, intersect, join and unite,” is not only expressive of the thought that was in the legislative mind, but also of the effect which would necessarily result from either of the acts authorized to be done; for to cross or intersect or join or unite to another road, necessarily marks the “point” of such crossing, intersection or uniting of the two roads. Boads, when thus joined and united, may merge into a single road, or the two companies may arrange for a joint use of the same tracks, but in the nature of 'things there can be no extension of the point of intersection or union; and we emphasize the fact, that the power to take the right of way, or of any part of the right of way, of another company, is expressly limited to the purposes of crossing, intersecting and uniting—or, more shortly, to the “connections” of the two roads. This latter expression is more comprehensive than either of the other terms. Indeed, it embraces all three of the cases indicated by the terms, cross, intersect, join and unite. That the term “connections” is used in this sense, will hardly be questioned, and the fact that it is thus used, affords additional evidence of the correctness" of the construction we have given to the statute. Thus, it will he observed the condemning company is authorized to cross, intersect, etc., “upon the grounds of such other railway company, with the necessary turn-outs, sidings * * * and other conveniences, in furtherance of the objects of its connections.” Further on, it is made the duty of the old com-j>any whose road is to be crossed, intersected, etc., to unite with the new company “in forming such intersections and connections.” It is then added, that if the companies can not agree upon the amount of compensation to be made for the property, “or the points and manner of crossing, or such connections, the same shall be ascertained in manner prescribed bylaw.” All these provisions and expressions considered, the conclusion would seem to be irresistible that the petitioning company has no power, under the provisions of the 19th section, to take any part of the right of way of another company, except for the purpose of some connection, resulting from a crossing or intersection, or the uniting and joining of the two roads, at some point on the line of the new road selected by the petitioning company.

The judgment of the court below will be reversed, and the cause remanded, with directions to that court to dismiss the petition as to the parts of the right of way of the appellant, longitudinally, sought to be condemned.

Judgment reversed.

Craig and Shore, JJ., dissenting. '