text:
    Benjamin A. Stokes v. George E. Riley et al.

      Filed at Ottawa May 12, 1887.

    1. Tbust—equitable title in trustee—protected in equity. A title of a mere trustee, based. upon a deed executed for a valuable, consideration paid by the cestui que trust, under properly framed pleadings, will, in a court of equity, be protected for the benefit of the latter, to the same extent as if the deed had been made to him.
    2. Pleading and evidence—in chancery—as to the character in which a right is claimed, whether as an individual or as trustee. A party suing or defending in chancery, should disclose, by his pleadings, the right upon which he bases his claim. If he is suing in a representative capacity, it must be so stated or made to appear, otherwise he will be conclusively presumed to be acting in his own right.

      3. A party can not sue, in equity, in his individual character, and be permitted to recover as the trustee or representative of another, for that would be to permit him to sue for the invasion of one right and recover for the infraction of another.
    4. A bill for partition alleged that two of the defendants claimed to have some interest in the land under certain tax deeds and other instruments, which were alleged to be void as against the other parties. These two defendants answered separately, and the title set up by each was in his own right. The proof showed that the title set up by one of them was held in trust by him for the other, who was the equitable owner: Held, that such title could not be sustained, on account of the variance.
    5. But when the complainant averred that the title to the land was in him and one of the defendants, and charged that the title claimed by the other two defendants was void, and sought to have them set aside, and one of such defendants set up a title in himself, which the evidence showed he held in trust for the other, it was held, that evidence of such title might be considered as evidence supporting the general denial of the title claimed by the complainant and the other defendant.
    6. Notice—of unrecorded deed—as, in the case of a sheriff’s deed. To afford notice of an unrecorded deed by the public records, the information given must be of that character that a prudent person, by the exercise of reasonable and ordinary diligence, could, upon inquiry and investigation, arrive at the fact of the existence of the prior unrecorded deed.
    7. Where a purchaser of land, on examination of the public records, finds a judgment against his vendor, and a certificate of the purchase of the land showing its sale under the judgment, but the record fails to show whether any sheriff’s deed had been made, it will be incumbent on him to make inquiry and investigation of those likely to know the fact, to learn whether any sheriff’s deed has been made, and failing to do so, he will be chargeable with notice of the existence of such deed, although it may not have been recorded.
    8. In this case, the public records of Cook county showed that on July 1, 1868, six writs of attachment issued out of the Superior Court against the owner of lots in the city of Chicago, which were levied on the lots; that judgments were obtained in the suits, upon which executions were issued, and levied on the lots; that the sheriff, on July 15, 1869, sold the premises; the issue of certificates of purchase, and the placing of them on record, and the dates of these transactions, and other details, and the abstract of the title failed to show any redemption. A sheriff’s deed was made on August 25, 1873, which was not recorded until Hay 6, 1881. On July 17, 1875, the attachment debtor conveyed the lots by quitclaim deed, which was recorded July 22, 1875: Held, that these facts shown by the records and the abstract of title, were sufficient to put the purchaser from the attachment debtor upon inquiry, which would have apprised, him of the existence of the unrecorded sheriff’s deed, which therefore took precedence of the other deed.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Wilson & Moore, for the appellant:
    The court erred in holding that Asahel Gage was a purchaser for value of the lots in question. He made no claim to be an innocent purchaser, by his answer, and therefore there could be no such finding. Boone v. Childs, 10 Pet. 207; Brown v. Welch, 18 Ill. 343.
    The court erred in decreeing that Gage was not put upon inquiry as to whether a sheriff’s deed had been issued upon the sale of the lots. Reddin v. Miller, 95 Ill. 336; McConnell v. Reed, 4 Scam. 117; Cabeen v. Breckenridge, 48 Ill. 94; Rupert v. Marks, 15 id. 540; Merrick v. Wallace, 19 id. 486; Cox v. Milner, 23 id. 422; Morris v. Hogle, 37 id. 150; Railroad Co. v. Kennedy, 70 id. 350; Babcock v. Lisk, 57 id. 327; Shepardson v. Stevenson, 71 id. 646; Farrar v. Payne, 73 id. 82; Doyle v. Teas, 4 Scam. 202.
    A quitclaim will not cut off a prior unrecorded deed, unless such was the intention of the parties. Butterfield v. Smith, 11 Ill. 473; McConnell v. Reed, 4 Scam. 117; Hamilton v. Doolittle, 37 Ill. 473.
    Mr. Augustus N. Gage, and Mr. Henry D. Bean, for the appellees:
    The attachment lien dated from the filing and recording of the certificate of levy. Brown v. Niles, 16 Ill. 385; Jones v. Jones, id. 117; Gaty v. Pitman, 11 id. 20.
    The lien expired in seven years after the judgment. Riggin v. Mulligan, 4 Gilm. 50; Scammon v. Swartwout, 35 Ill. 326; Ewing v. Ainsworth, 53 id. 464; Tenney v. Hemenway, id. 97; Rainey v. Nance, 54 id. 38; Hall v. Gould, 79 id. 22; Gridley v. Watson, 53 id. 186; Weiss v. Lienan, 91 id. 27.
    A person purchasing bona fide, after the expiration of the lien, will be protected. Priest v. Wheelock, 58 Ill. 114; James v. Wortham, 88 id. 69.

      The certificate of purchase conveys no estate. The purchaser is regarded merely as- a bidder, and has but a lien until he receives the sheriff’s deed. Johnson v. Baker, 38 Ill. 98; Sweezy v. Chandler, 11 id. 445; Stevens v. Insurance Co. 43 id. 327; McLagan v. Brown, 11 id. 519; Hays v. Cassell, 70 id. 669; Bowman v. People, 82 id. 246; Bissell v. Payne, 20 Johns. 3.
    The notice afforded by the recorded certificate of purchase, that a deed might afterward be issued thereon, expired at the time when, by law, a deed could no longer be issued upon the sale.
    Independently of the statute, it is held in this State that a sheriff’s deed executed upon the application of the holder of the certificate of purchase, without notice to parties interested, more than eight years and three months after the sale, is void. Rucker v. Dooly, 49 Ill. 377; Harmon v. Larned, 38 id. 167; Dugger v. Oglesby, 99 id. 405.
    The statute in force at the time the sheriff’s deed, in the case at bar, was executed, required the deed to be taken out within five years from the expiration of the time of redemption, in default of which the certificate of purchase should be null and void. Act of March 22, 1872, sec. 30; Rev. Stat. 1874, chap. 77, sec. 30; Berry v. Lovi, 107 Ill. 612.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellant, Benjamin A. Stokes, exhibited his bill in the circuit court of Cook county, against George E. Biley, Henry H. Gage, Asahel Gage, and others, praying for the partition of certain lots in the city of Chicago. It is alleged in the bill that the complainant is the owner in fee of an undivided two-thirds interest in the lots, and that defendant Biley is the owner of the remaining third; that they derive title through an attachment sale and sheriff’s deed, from Taylor V. Ward, the former owner of the premises. It is further alleged that Henry H. Gage and Asahel Gage have, or claim to have, some interest in the property under certain tax deeds and other instruments, charged to be fraudulent and void, and a cloud on the title of complainant and said Riley. Asahel Gage answered, claiming to be a purchaser of the property through mesne conveyances from Ward, for a valuable consideration, without notice of Stokes’ and Riley’s title. By an amendment to the bill, the tax titles of the Gages are set out, together with the objections to them, from which it appears tax deeds were issued to Henry H. Gage for all the lots involved in this appeal. Henry H. Gage answered, alleging that he is the owner in fee of the property by virtue of “divers good and valid tax titles thereto. ” On the hearing, the court entered a decree dismissing the bill, from which Stokes appealed to this court.

As to the real facts in the case there is no ground for controversy. It is conceded that on July 1, 1868, Taylor Y. Ward was the owner in fee of the lots in controversy, and the records show that on that day six writs of attachment, issued out of the Superior Court of Cook county, in favor of Ward’s creditors, were levied upon said lots'; that judgments were regularly obtained against Ward in said attachment suits, upon which general and special executions were issued, and duly levied on the premises by the sheriff of the county; that said sheriff, on the 15th of July, 1869, sold the premises to the plaintiffs in said attachment suits, for the aggregate amount of their several claims, and gave to them the usual certificate of purchase, which was recorded in the proper office on May 11, 1870; that said purchasers, for value, duly assigned the certificate of purchase to complainant, Stokes, and the said George E. Riley, who, on the 25th of August, 1873, received from the sheriff of Cook county a sheriff’s deed for the premises, which was recorded May 6, 1881. By quitclaim deed bearing date July 17, 1875, and recorded on the 22d of the same month, Taylor Y. Ward and wife, for the expressed consideration of $50, conveyed “all interest” in the lots to Henry Brooks, who, on the 26th of the month, by like deed, recorded on the same day, conveyed the lots to Frederick W. Brooks. Frederick W. Brooks and wife, by quitclaim deed bearing date February 19, 1880, and recorded on the 10th of the following month, for the expressed consideration of one dollar, conveyed to Asahel Gage lots 1, 2, 3, 4, 5 and 8, which are the only ones involved in this appeal.

According to the testimony of Henry H. Gage, the real consideration for this last conveyance was $1000, paid by himself and for himself, to Brooks, all of which but a trifle was, as he claims, a balance due from the latter to the former upon an accounting between them. His testimony on this subject is pointed, clear and conclusive. He says, in substance, that Asahel Gage has never, either directly or indirectly, paid or furnished any part of the consideration paid Brooks for said lots; that so far as these last lots are concerned, the deed was made for witness’ own use; that Asahel did not, and does not now, claim any beneficial interest in them, but that he does claim an interest in the other lots, namely, 13, 14, 15 and 16. The bill as to the lots last mentioned was dismissed, and consequently they are not before us.

Accepting this statement as true, which we can not do otherwise, as it is uncontradicted, it is clear enough that Asahel Gage is, at most, a mere trustee with respect to the property, having no beneficial interest in it whatever. 8o far, therefore, as he is personally concerned, it may be admitted that he has no rights under the Brooks deed which can avail against Stokes and Riley. But his title as trustee being based upon a deed executed for a valuable consideration paid by the cestui que trust, we think, under properly framed pleadings, is entitled to be' protected for the benefit of Henry Gage, to the same extent as if the deed had been made directly to the latter, and for the purposes of the-present decision it must be so regarded. It may be, and we do not wish to be understood as expressing any opinion to the contrary, that if Asahel Gage had answered the bill in his character as trustee, alleging that the lots were conveyed to him by Brooks in trust for Henry H. Gage, his title in that character would have been protected as fully and completely as if the same matter had been set up by Henry H. Gage himself; but nothing of this kind was done. In .reaching a conclusion in this case, we must, as in all. others, look to the pleadings to see what the. issues are, for the court has no right to determine any questions which are not fairly presented by the pleadings.

If one sues or defends in an equity proceeding, he must disclose, by his pleadings, the nature or character of the rights upon which he bases his claim for relief. If he is suing in a representative capacity, it must be so stated- or made to appear, otherwise he will be conclusively presumed to be .acting in his own right. He can not sue in his individual character and be permitted to recover as the trustee or representative of another, for that would .be to permit him to sue for the invasion of one right and recover for the infraction of another. In the present case, as we have already seen, the complainant avers the title of the premises to be in himself and Riley, and then charges that the Gages claim to have some interest in the premises under certain tax deeds and other instruments, which are alleged to be void as against complainant and Riley. The Gages sever, in pleading. The claim set up by each of them in his answer, is in his own right, and not in the right of another. If they relied on a hostile paramount title, they should have set it up and proved it on the trial. This they respectively attempted to do, yet in a very imperfect manner.

But waiving all question as to the sufficiency of their answers, what do we find ? Asahel Gage, defending in his own right, claims the property under certain deeds. These deeds, viewed as new affirmative matter set up by way of defence, can not be sustained, for the reason the proofs conclusively show, as already seen, that he has no individual interest in the property. This, therefore, disposes of the case so far as he is concerned.

By the answer of Henry H. Gage it is alleged, as will be remembered, that he is the owner of the property by virtue of “divers good and valid tax titles thereto,” etc. That there is no evidence in the record to sustain this averment in the answer, and others of similar import, is clear, beyond question. It is equally true that he sets up and relies exclusively upon the tax proceedings mentioned in the answer, as his only source of title.

If there was nothing more in the case than this, we think neither of the answers, in so far as they attempt to set up . affirmative matter, presents any substantial defence to the bill. But the question arises, whether the deeds relied on by Asahel Gage to show title in himself, must not be considered as evidence supporting the general denial in the answers, of complainant’s title. We are inclined to think they may be so considered. In this view, the question is presented, whether the sheriff’s deed to Stokes and Biley, which is founded upon the attachment proceedings commenced July 1, 1868, loses its precedence over the other deeds by reason of the latter having been first recorded. Of course, the decision of this question depends upon whether the facts disclosed by the record of the attachment suits, were sufficient to put a reasonably prudent person upon inquiry. The rule in such cases, as recognized by this court, is well stated in City of Chicago v. Witt, 75 Ill. 211. It is there said: “The information must be of that character that a prudent person, by the exercise of reasonable and ordinary diligence, could, upon inquiry and investigation, arrive at the fact of the existence of such prior conveyance.” To the same effect are Doyle v. Teas, 4 Scam. 202; Rupert v. Mark, 15 Ill. 540; Heaton v. Prather et al. 84 id. 330; Hankinson v. Barbour, 29 id. 80.

The facts relied on in this case to prove there was sufficient to put the Gages on inquiry, are partly shown by the records and partly by an abstract of title, and it affirmatively appears that appellees, through their counsel, had not only construct- • ive but actual notice of all the facts relied on by appellant as being equivalent to notice of appellant’s title. These facts, which, in the main, have already appeared, are, the suing out of the attachments, the recovery of the judgments, the issuing of the executions, the levy of the same upon the property and its sale by the sheriff, the issuing of the certificate of purchase to the purchasers and the placing the same upon record, together with the dates of these several transactions, and other details, as, amounts of judgments, executions, etc. There is also some evidence of a negative character, which should not be overlooked in this connection. The attachment sale, it will be remembered, occurred on the 15th of July, 1869, consequently the time for redemption, so far as Ward and those claiming under him are concerned, expired on the 15th of July, 1870, a year and near three months before the destruction, by fire, of the greater portion of the records in the following October. Now, if any redemption had occurred within the time allowed by law for that purpose, that fact, upon the presumption that officers do their duty, we must assume, would have appeared of record, and the'very fact that no such redemption was noted upon the abstract, is a circumstance tending strongly to show that the property was not redeemed, for it may be assumed that no intelligent abstracter would overlook or fail to note so important a fact as this.

The purchasers at the attachment sale acquired the right to have the land conveyed to them or their assigns at the expiration of the time of redemption, if the same, in the meantime, should not be redeemed. Of this appellees clearly had notice. Now, if this was not sufficient to put the appellees upon inquiry, then nothing short of the record of the sheriff’s deed would be sufficient, in which case, of course, the doctrine we are discussing would then have no application, for there would be nothing to inquire after. The investigation made by appellees’ counsel does not seem to have been conducted in that way which would most likely have led to a discovery of the fact which the law made it their duty to ascertain,—namely, whether a sheriff’s deed had been issued. Having examined the records and found all that appeared there, and that being sufficient to make it uncertain whether such deed had been issued or not, it was then their manifest duty to make inquiry from such persons as would most likely have known the truth of the matter,—such as counsel for plaintiff, sheriff and purchasers. One of the records examined by counsel showed the names of plaintiff’s attorneys in the attachment suits, who most likely knew that the deed had been issued. But neither appellees nor their counsel seem to have availed themselves of apy of these sources of information. (See cases above cited.) Nor, in short, does it appear that inquiry was made of any one who would most likely have been able to enlighten them on the subject. These investigations should always be made with care, and in good faith. The law exacts this, and is satisfied with nothing less. We do not think the law, in this respect, was sufficiently observed by appellees or their counsel.

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

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Chicago, Danville and Vincennes Railroad Company v. The City of Chicago.

      Filed at Ottawa May 12, 1887.

    1. Railroads— USE OF streets — certainty required in giving the right—an ordinance construed. A permission to a railway company to occupy a public street with railway tracks, must plainly appear, and not be left to be derived by doubtful implication, from the generality of language used, which does not unmistakably manifest the intention to give such permission.
    2. A city ordinance, after a careful mention and specification of what streets might be used by a railway company in which to lay down its tracks and side-tracks, contained a general clause giving authority also to lay down all such tracks “as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the vicinity of or adjoining said line of road, ” without the specific mention of any streets: Held, that such general clause gave no authority in respect to the use of the streets, additional to those which had been specifically named in the preceding part of the ordinance.
    3. Same—grant in charter, as not extending to use of streets in incorporated cities. Authority in the charter of a railway company to construct a railroad from Vincennes, in Indiana, to and into the city of Chicago, with the general power to cross any road or highway on the route, is to be held only as giving such power outside of the corporate limits of the city. By no fair intendment can it be held as a grant of the use of the streets of the city for tracks of the road.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    The Chicago, Danville and Vincennes Eailroad Company was incorporated by a special charter of the State of Illinois, February 16, 1865. (2 Laws of 1865, p. 140.) The company was, by its charter, authorized to construct a railroad from Vincennes, Indiana, with a single or double track, to and into the city of Chicago, and to locate said road through its whole length, with a width of one hundred feet, and to appropriate land for that purpose. The railroad company was also authorized by its charter to cross any road or highway along its route, provided the same was crossed in a manner not to impair the.use of such road or highway. Said railroad enters the city of Chicago from a point near the intersection of Western avenue and Kinzie street, over the same tracks as the Pittsburg, Cincinnati and St. Louis Bailroad Company, which company embraces the corporations formerly known as the Chicago and Great Eastern Eailway Company, and the Columbus, Chicago and Indiana Central Eailway Company.
    On October 8, 1866, an ordinance was passed by the common council of the city' of Chicago, giving to the Chicago and Great Eastern Eailway Company the right to enter and pass through the city of Chicago, and certain streets thereof, commencing at or near the intersection of Western avenue and Kinzie street, and running eastwardly along the south side of Kinzie street to a point between North Morgan and North Sangamon streets, and from thence eastwardly, between Kinzie and Carroll streets, now known as Carroll avenue, to Halsted street, from thence eastwardly on Carroll street, or Carroll avenue, to the Chicago river. By section 4 of the ordinance above cited, the railroad company was also authorized to lay down, maintain and operate, in addition to the tracks before mentioned, “all such tracks, turn-outs and switches as may be necessary to the convenient use of any depot grounds such company may now own or hereafter acquire in the vicinity of or adjoining said line of road, and to form connections with other roads.”
    On April 1,1872, the common council of the city of Chicago passed an ordinance authorizing the Columbus, Chicago and Indiana Central Eailway Company, (which company was the same company as, and the successor of, the Chicago and Great Eastern Eailway Company, before mentioned,) to put down, construct and maintain a railroad, with single or double track, across and upon certain other streets in the city of Chicago. By section 9 of the last mentioned ordinance, all the permission and authority granted therein, together with all permission and authority granted in the previous (or Great Eastern) ordinance, above mentioned, were made conditional upon the grantees thereof permitting the Chicago, Danville and Vincennes Bailroad Company to use the tracks thereby in either ordinance authorized to be laid.
    The said Chicago and Vincennes Bailroad Company, shortly after receiving its charter, began the construction of its railroad from Vincennes, Indiana, to the city of Chicago, entering the city of Chicago, as before stated, from a point at or near the intersection of Western avenue with Iiinzie street, thence running eastwardly upon the tracks of the Columbus, Chicago and Indiana Central Bailway Company, as authorized in the first of the above mentioned ordinances. In order to accommodate its freight traffic, (there being no property immediately upon the main line of road, before mentioned, available for that purpose, all such property having been already acquired by the other railroad companies using said line of track,) said' company purchased, for its use as such freight depot, block 14, in Carpenter’s addition to the city of Chicago, situated between Carroll avenue, Fulton, Carpenter and Morgan streets. This property is situated about two hundred feet from the main line of road before mentioned, being separated therefrom by Carroll avenue. In order to reach such freight depot, a side-track or spur was built, commencing on the main track aforesaid, a little west of North Ann street, thence crossing property of the company diagonally, and in a south-easterly direction, and crossing Ann street near said main line of track, thence crossing Carroll avenue at the intersection of North May street, thence through property of the company, and crossing North Curtis and North Carpenter streets, to said freight depot. The annexed map of the territory and tracks may aid in a better understanding of the situation:

      This side-track, or spur, except where crossing the public streets, is entirely upon property of the company, or of one of the other railroad companies having a joint right of its use. This side-track was laid down about the beginning of the year 1873, and the company immediately commenced to operate and use it, and to run cars over it, and to use the freight depot. After this had been going on for some months, the city of Chicago, acting through a board of public works, forcibly tore up this side-track, at its crossings over Carroll avenue, North Curtis and North Carpenter streets. The company immediately attempted to re-lay the same, and in the month of February, 1873, exhibited its bill herein, in. the circuit court of Cook county, praying for an injunction to restrain the city from again tearing up such side-track. A temporary injunction was issued. In June following, the case came on for hearing upon the bill and answer, and the city’s motion made-to dissolve the injunction, and upon affidavits read, and the motion to dissolve was denied. The re-laying of the track was then completed, under direction of the court. For some reason no final decree was ever entered, and the case was stricken from the docket. In 1884, the city applied to have the case re-docketed, which was done, and in May, 1886, a hearing was again had before the circuit court of Cook county, upon the same pleadings and proofs as before, and a decree was rendered dismissing the bill. An appeal was taken to the Appellate Court for the First District. That court being divided upon the case, one judge having made the decree below, and the two remaining members being divided in opinion, so that no judgment of reversal could be entered, the decree below was necessarily affirmed, and this appeal was taken by the complainant.
    Mr. Arthur Ryerson, for the appellant:
    Appellant was authorized by the city ordinances to lay the tracks in question to depot grounds. Section 4 of the Great Eastern ordinance gives the right to locate such tracks “as may he necessary for the use of any depot grounds in the vicinity of or adjoining said line of road. ” The depot grounds are less than two hundred feet from the main track. As to the right to lay down such switch to the depot, see the following cases : Railroad Co. v. New Orleans, 1 La. Ann. 128; Knight v. Railroad Co. 9 id. 284; Springfield v. Railroad Co. 4 Cush. 63; Iron Works Co. v. Railroad Co. 87 Mass. 231; Railroad Co. v. Railroad Co. 67 id. 340; Jenkins v. Railroad Co. 29 Iowa, 255; 99 Pa. St. 155.
    The laying of the tracks in the street is conferred by the charter of the company. 2 Laws of 1865, p. 140.
    The legislature has the power to grant such use of a public street. People v. Walsh, 96 Ill. 232; Sawyer v. Alton, 3 Scam. 130.
    Mr. Clarence Knight, and Mr. H. 0. McDaid, for the appellee :
    Appellant has no right, under the ordinance, to lay down its tracks except “within the district aforesaid,” which is described in the same. It can not go out of the streets named in the first part of the ordinance. The point at which the track crosses Curtis street, in approaching west from the freight depot, is outside the limits of the defined district. Patterson v. Railroad Co. 75 Ill. 590.
    At the time appellant’s charter was granted, (1865,) the general Eailroad act of 1849 was in force, the 24th section of which provided, that the assent of the city council should be necessary to authorize the company to locate its track within any city. Full power over the streets, in respect to the location of railroad tracks therein, was conferred on the city. Laws and Ordinances of 1873, pp. 411, 406; Moses v. Railroad Go. 21 Ill. 516; Railroad Go. v. Potter, 82 id. 208; Railroad Co. v. Dunbar, 100 id. 110.
   Mr. Justice Sheldon

delivered the opinion of the Court:

There is no permission given by the city ordinance to lay a railroad track upon these streets specifically, except Ann street, which are crossed by this side-track in question. But the permission is claimed to be derived from the general language of the latter provision of the fourth section of the ordinance of October 8, 1886, which is, to lay down such tracks “as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the vicinity of or adjoining said line of road, and to form connections with other roads. ” It is said this side-track is in the vicinity of or adjoining the line of the road,—that the proof establishes the side-track is necessary to the convenient use of the depot grounds, and thus that the laying of this track comes within the express grant of authority by the words of this provision. The occupation of the street of a city with a railroad track is of very serious concern, as regards the public and property owners upon the street, and a permission which is set up to so occupy a public street, should plainly appear, and not be left to be derived, by doubtful implication, from the generality of language which does not unmistakably manifest the intention to give such permission.

To arrive at what was the meaning of the ordinance with respect to streets, it is proper to look at all of its provisions. Section 1 gives permission and authority to the company to construct a railroad with a single track, in the south part of Kinzie street, from Western avenue eastward to a point in said Kinzie street between North Morgan and North Sangamon streets. By section 2 the company is also authorized to lay down and operate one or more railroad tracks “on any ground which said company now owns or may hereafter acquire, * * * between Kinzie and Carroll and between Morgan and Halsted streets, and also to lay down, maintain and operate any such track or tracks, turn-outs and switches, across any street' or streets and alleys within the district aforesaid. ” By section 3 the company is also authorized to lay down and operate one of more railroad tracks on Carroll street, from Halsted street eastward to the Chicago' river, with the right to cross said Halsted street, and all intervening streets between those limits. By section 4 the company is also authorized to lay down and operate one or more railroad tracks “on any ground'which said company now owns or may hereafter acquire, * * * between North Halsted street and the Chicago river, and between Carroll and Fulton streets, and also to lay down, maintain and operate any such track or tracks, turn-outs and switches, across any street or streets and alleys within the district aforesaid, and also all such as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the-vicinity of or adjoining said line of road, and to form connections with other roads, and also to acquire and use all such depot, grounds, and to erect thereon such buildings as said com-" pany shall deem necessary for the convenient transaction of its business.”

Thus it will be seen, that until this general clause in section 4 is reached, the authority which is given for the use of streets is specific, precise, and most guardedly limited. A route is given for the railroad from Western avenue eastward to the Chicago river, and what streets may be used,"and the extent to which they may be used, are specifically ‘defined. A single railroad track may be laid in Kinzie street eastward to a point therein between North Morgan and Sangamon streets. Morgan street is the fourth street west from Halsted, the streets running, Halsted, Green, Peoria, Sangamon and Morgan. Authority is then given to lay down and operaté one or more railroad tracks on any ground the company owned or might acquire, between Kinzie street and Carroll avenue, and between Morgan and Halsted streets, and to cross any street or streets within that district. This would authorize the company to come down from Kinzie street south to the north line of Carroll avenue, but not to use that avenue. Then the further authority was given to lay down and operate one or more railroad tracks on Carroll street, from Halsted street eastward to the Chicago river, with the right to cross said Halsted street and all intervening streets between those limits. Here was authority to use Carroll avenue eastward from Halsted street, and there was given the further authority to lay down and" operate one or more tracks on any ground the company then owned or might acquire, between North Halsted street and the Chicago river, and between Carroll and Fulton streets, and to cross any street or alley within that district. Thus all the authority which was given to use Carroll avenue, was to use it eastward from Halsted street. There was no authority given to use it westward from Halsted street, or to use May and Carpenter streets south of Carroll avenue.

After such careful mention and specification of what streets might be used, as had preceded in the ordinance, then follows the general clause upon which the disputed construction arises, immediately after the authority to lay tracks across any street or alley within the district aforesaid, “and also all such as may be necessary to the convenient use of any depot grounds said company may now own or hereafter acquire in the vicinity of or adjoining said line of road. ” There is no specific mention of streets in this general clause, and to hold that under it any other streets might be used than those specified in the preceding part of the ordinance, would make it indefinite and uncertain what streets might be made use of under this clause, and leave it for the railroad company to determine. We do not think that was the intention of the common council, but that it was their purpose to fix and limit precisely what streets might be used. And, in our judgment, the true construction of this general clause of the ordinance is, that it gave no authority, in respect of the use of streets, additional to what had been granted by the preceding part of the ordinance; that what streets might be used were specifically defined and limited by the ordinance, and that under this general clause there was not given authority to make use of any other streets than those which the ordinance had specifically named might be used.

It is claimed the railroad company was authorized, by its charter, to lay and maintain the track in question. The charter gives no express authority to cross any streets in' the city of Chicago. It hut gives authority to construct a railroad from Vincennes, Indiana, to and into the city of Chicago, with the general power to cross any road or highway on the route, wdiich is to he held as only giving such power outside of the corporate limits of the city. By the amended charter of 1863, of the city of Chicago, the common council was given the powrer “to direct and control the location of railroad tracks.” Laws and Ordinances of 1873, p. 406.

In the case of Moses v. Railway Co. 21 Ill. 516, the court said: “By the city (Chicago) charter the common council is vested with the exclusive control and regulation of the streets of the city, the fee simple title to which we have already decided is vested in the municipal corporation. The city charter also empowers the common council to direct and control the location of railroad tracks within the city. ”

This question would seem to be sufficiently disposed of by what was said in the case of St. Louis, Vandalia and Terre Haute Railroad Co. v. Haller, 82 Ill. 208. In that case it was claimed, under a charter similar to this one, that the railway company had the right to cross streets within a corporation without any ordinance giving the permission, and the court said: “It is urged that the fee,to the streets was in the town, and that it being a municipal corporation, and under the control of the legislative power of the State, the General Assembly had power to grant the streets to the use of railway companies, for the construction and operation of their roads, and that the General Assembly, in passing the charter of this company, granted' them the use of this street by authorizing them to pass through the town. By no reasonable or fair intendment can it be held that-the grant of" authority to run their road through the town, operated as a grant of the use of the streets, or either of them,.to the company, for the purpose. ”

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Shops

text:
      George C. Hicks v. William G. Stevens.

      Filed at Ottawa March 22, 1887.

    1. Parol evidence—as to representations leading to contract—to show fraud. On bill to set aside a written agreement for the sale of an invention or patent right, on the ground it was procured by false and fraudulent representations of the vendor, the verbal statements of the vendor, made to the purchaser before the sale, as to the nature, character, capability and value of his invention, are admissible in evidence,—not for the purpose of varying the written contract, but to show fraud.
    2. Pleading—in chancery—allegation of fraud.- A bill in equity seeking to set aside a contract as having been procured by fraud, should charge the fraud specifically, and not in general terms. The facts relied on as constituting fraud should be set out, so as to apprise the defendant what he must meet.
    3. Fraud—ground of relief—false representations. To entitle a party to relief, either legal or equitable, on the ground of a fraudulent representation, he must have relied upon the representation as true. While it is necessary that he should trust the representation, it is not essential that the false representation should have been the sole inducement to his entering into the contract.
    4. Same—relying upon representations made—whether warranted or not. A party entering into a contract upon a false representation, must, under the circumstances of the case, have been justified in relying upon it, in order to obtain relief. -When the representations relate to substantial matters of fact, and not mere opinion, and especially when they are concerning matters which, from' their nature or situation, may be assumed to be within the knowledge or under the power of the party making them, the party to whom they are made has a right to rely upon them, and in the absence of any knowledge of his own, or of any fact to arouse suspicion, it will not lie in the mouth of the other party to object that he was taken at his word.
    5. If false representations are made as to matters of fact, and the means of knowledge are at hand, and equally accessible to both parties, and the purchaser, instead of resorting to them, trusts the vendor, the law, as a general rule, will not relieve him from his own want of ordinary care.
    6. A different rule obtains where the property is at a remote distance, or where the property right is intangible, and the falsity of the representation can not be detected by inspection. In such case the purchaser may rely on the vendor’s representations as to any material fact, and even as to the value and capabilities of the subject of the sale.
    7. Same—presumption whether false representations are relied on. "Where a party, ignorant of the real facts, and having no ready means of information, makes a purchase or enters into a transaction, as to the subject matter of which representations have been made which are material, the law will presume that, as a matter of fact, he relied on them.
    8. Same—cautionary advice by one malting fraudulent representations. Although a party follows his misrepresentations by words of general caution, or by advice to the other that he consult his friends, or examine for himself before concluding the agreement, he does not thereby counteract any effect upon the transaction which his untrue statement would otherwise produce.
    9. Same—evidence—printed circular representing qualities of thing sold. On bill to set aside a contract for the sale of a patent right for a certain State, on the ground of fraudulent misrepresentations of the vendor as to the value, capability and usefulness of the thing patented, circulars of the vendor issued by him and shown to the purchaser, will be admissible in evidence, as showing the representations made by him to the purchaser.
    10. Rescission of contract—decree as to repayment of option. A sold B, for $500, an option giving him the right to purchase of A a patent right for the State of New York, at the sum of $20,000. C paid B one-half of the $500, and the two then bought the right for the State of New York, the $500 paid by B being taken put of the price of the State right: Held, on bill by 0 to set aside the sale of the State right, on the ground of fraud, it was eiror to require A to pay to O the $250 he had paid to B, the sale of the option not being affected by the fraud in the subsequent contract.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

      This was a suit in chancery brought by Stevens, for the rescission of a contract of .purchase of a certain patent right, on the ground of false and fraudulent representations in respect thereto, made by Hicks, the vendor. In the trial court a decree was entered according to the prayer of the bill. That decree having been affirmed in the Appellate Court, Hicks sued out this writ of error.
    Mr. H. W. Wolseley, for the plaintiff in error: ■
    The court erred in admitting in evidence the verbal statements made by Hicks in relation to the tube-closer, prior to the execution of the written agreement. Turner v. Navigation Co. 2 Dev. 239; Beebe v. Swartout, 3 Gilm. 184; Witherspoon v. Carmichael, 6 Ired. Eq. 150; Miller v. Cother, 5 Ga. 346; James v. McKernon, 6 Johns. 543; Gouveneur v. Elmandorff, 5 Johns. Ch. 79; Sugden on Vendors, 244.
    The court erred in admitting evidence tending to show that the tube-closer would not accomplish more than, or as much as, good dampers and tight doorb. James v. McKernon, 6 Johns. 563.
    The findings of the court are not supported by .the evidence. Is the Hicks tube-closer worthless ? Sherman v. Transportation Co. 31 Vt. 176; Gatling v. Newell, 9 Ind. 582; Seymour v. Osborn, 11 Wall. 516; Alder v. Dewey, 1 Story, 336; Curtis on Patents, sec. 9; Tilghman v. Proctor, 102 U. S. 707.
    Did Hicks make any materially false representations? Walker v. Hough. 59 Ill. 378.
    Did Stevens rely on any representations made by Hicks ? 2 Pomeroy’s Eq. Jur. secs. 892, 893; Sugden on Vendors, 244; Halls v. Thompson, 1 S. & M. 481; Tindall v. Harkinson, 19 Ga. 448; Marshall v. Peck, 1 Dana, 612; Yates v. Price, 11 Ark. 66; Mooney v. Miller, 102 Mass. 220; Tuck v. Downing, 76 Ill. 98; Douglas v. Littler, 58 id. 351; Glasscock v. Minor, 11 Miss. 657; Smith v. Richards, 13 Pet. 37; Fauntleroy v. Wilcox, 80 Ill. 477.

      The question of fact not being clearly proved as alleged in the bill, the court below erred in granting any relief thereon. Graham v. Pancoast, 30 Pa. St. 97; Walker v. Hough, 59 Ill. 380; Small v. Atwood, 6 C. & F. 479; Halls v. Thompson, 1 S. & M. 490; Ayres v. Mitchell, 3 id. 694; Tuck v. Downing, 76 Ill. 98.
    There being no allegation in the bill, of fraud, mistake or undue influence, and no evidence thereof, the court below erred in decreeing a rescission of the contract. Sims v. Klein, Breese, 302; Mey v. Gulliman, 105 Ill. 285; Fauntleroy v. Wilcox, 80 id. 481; McArtee v. Engart, 13 id. 248; Beebe v. Swartout, 3 Gilm. 184; Sugden on Vendors, 244; Rockafellow v. Baker, 41 Pa. St. 321; Nace v. Boyer, 30 id. 110; Marshall v. Dana, 1 Dana, 612; Walker v. Hough, 59 Ill. 378.
    The representations which Stevens attempted to prove were untrue, and do not warrant the granting of any relief. As to the merits and capabilities of inventions, see Tuck v. Downing, 76 Ill. 97; 1 Story’s Eq. Jur. see. 191; Page v. Bent, 2 Metc. 374; Schramm v. O'Connor, 98 Ill. 542; 2 Kent’s Com. 485; Gatling v. Newell, 9 Ind. 576.
    ■ As to value, see Sugden on Vendors, 3; Coil v. Female College, 40 Pa. St. 445; Graham v. Pancoast, 30 id. 97; Page v. Bent, 2 Metc. 374; Nœtling v. Wright, 72 Ill. 390; Plummer v. Rigdon, 78 id. 228; Spieglemeyer v. Crawford, 6 Paige, 256.
    The representations were not such as Stevens bad any right to rely upon. Plummer v. Rigdon, 78 Ill. 228; Gatling v. Newell, 9 Ind. 576; Coil v. Female College, 40 Pa. St. 445; Graham v. Pancoast, 30 id. 97; Rockafellow v. Baker, 41 id. 321; 2 Pomeroy’s Eq. Jur. sec. 879; Dillman v. Nadlehoffer, 19 Ill. 380.
    Although Stevens may have made an improvident bargain, or paid an excessive consideration, in the absence of fraud he can have no relief. Osgood v. Franklin, 2 Johns. Ch. 23; 2 Kent’s Com. 487; Van Horn v. Keenan, 28 Ill. 448; Nœtling
      v. Wright, 72 id. 391; Tuck v. Downing, 76 id. 101; Bedell v. Loomis, 11 N. H. 19; Coles v. Trecothick, 9 Ves. 246; Juzan v. Toulmin, 9 Ala. 686; Green v. Thompson, 2 Ired. Ch. 365 ; Nacey. Boyer, 30 Pa. St. 110; McArfee v. Eng art, 13 Ill. 248; Douglas v. Littler, 58 id. 351.
    The court below does not find, nor does the evidence show, that Hicks knew that Stevens ' confided or trusted in any representations made by him. 1 Story’s Eq. Jur. see. 197; Tuck v. Downing, 76 Ill. 97; Smith v. Richards, 13 Pet. 39.
    Mr. Ullman Strong, and Mr. Edward A. Dicker, for the defendant in error:
    In equity, misrepresentations of material facts by a vendor, whether he knew they were false or not, will entitle the •vendee relying on the same, to rescind. It is not material whether the vendor knew the representations were false or not. 2 Pomeroy’s Eq. Jur. secs. 885, 887, and note 4; Benjamin on Sales, (4th Am. ed.) sec. 421, 454; Allen y. Hart, 72 Ill. 104; Ruff v. Jarrett, 94 id. 479; Brown v. Tuttle, 66 Barb. 169; Lester v. Palmer, 86 Mass. 145; Sledge v. Scott, 56 Ala. 202; Parmalee v. Adolph, 28 Ohio, 21; Frenzel v. Miller, 57 Ind. 1; Gatling v. Newell, 9 id. 576; Elder v. Allison, 45 Ga. 13.
    The circular is evidence of the representations. 2 Pomeroy’s Eq. Jur. sec. 881, p. 364; Wilcox v. Henderson, 64 Ala. 540; Morgan v. Skiddy, 62 N. Y. 329; Bradbury v. Barden, 35 Conn. 582; Fenn v. Curtis, 23 Hun, 388.
    To entitle complainant to recover, it is not necessary that he should have relied solely on the false representations. If he was influenced thereby, though he relied, in part, on other information, he can recover. Redgrave v. Hurd, 20 L. B. (Ch. D.) 1; Benjamin on Sales, (4th Am. ed.) secs. 429, 453 ; 2 Pomeroy’s Eq. Jur. sec. 890, p. 375; Thorne v. Prentiss, 83 Ill. 99; Ruff v. Jarrett, 94 id. 479; Morgan v. Skiddy, 62 N. Y. 329; Shaw v. Stine, 8 Bosw. 157; Reynal v. Sprye, 1 DeG., M. & G. 719; Nichol's case, 3 DeG. & J. 387; Smith v. Richards, 13 Pet. 26; Daniel v. Mitchell, 1 Story, 172; Doggett v. Emerson, 3 id. 700; Hough v. Richardson, id. 690.
    The presumption is that the representations were relied on. Redgrave v. Hurd, 20 L. B. (Ch. D.) 1; Nichol’s case, 3 DeG. & J. 387; Fishbach v. Miller, 15 Nev. 428; Benjamin on Sales, (4th Am. ed.) sec. 429, and note b, and sec. 453.
    Where false representations are accompanied or followed by words of general caution, the effect of the misrepresentations is not thereby counteracted. Reynal v. Sprye, 1 DeG., M. & G. 709; Smith v. Richards, 13 Pet. 26; Pomeroy’s Eq. Jur. sec. 896.
    Credulity of a vendee can not be set up by the vendor to avoid a rescission. Kendal v. Wilson, 41 Vt. 567; Allen v. Hart, 72 Ill. 104; Pierce v. Wilson, 34 Ala. 603.
    If confidential relations exist, then misrepresentations of matters of opinion can be relied on. Story’s Eq. Jur. sees. 197, 198, 212 a; White v. Southerland, 64 Ill. 183; Tuck v. Downing, 76 id. 71; 2 Pomeroy’s Eq. Jur. sec. 956, and notes, p. 478; McCormick v. Miller, 102 Ill. 208; Sieveking v. Litzler, 31 Ind. 17.
   Mr. Justice Shops

delivered the opinion of the Court:

There is no dispute as to the making of the contract of sale in this case, or as to its terms, the principal controversy being whether Hicks, before the sale, made material representations as to the utility and value of the invention sold, which were relied on by Stevens, and which were false. The evidence satisfies us that prior to the consummation of the sale the parties had frequent interviews, in which Hicks represented to Stevens and Jones, that the “Hicks Tube-closer” was a new and valuable invention, and would save both steam and fuel; that it was a good and profitable thing to sell, and would bring great profits. Hicks also gave Stevens a printed circular, setting forth therein its capabilities and merits, which, among other things, stated that the use of the “tube-closer demonstrates, to a positive certainty, its ability to show, by the steam gnage, in the morning, before firing up, the same steam jiressure that is felt at night after the day’s work. It will even hold steam in the boiler from Saturday night until Monday morning. It is guaranteed to save fully fifteen per cent of fuel, or whatever fuel is usually required to raise steam in the morning. The Hicks tube-closer will do it. It will save its cost every month. ” Hicks also assured Stevens in some of the interviews, that the right to make and sell the tube-closer in either of the States of Ohio and Pennsylvania was worth $50,000; that the right to the State of New York ivas worth the same sum, and that the appliances could be manufactured for five dollars apiece, and would sell for $30 each, and that there were not less than two thousand boilers in each of the States named. Most of these representations, especially those in the circular, are not denied. Hicks, by his answer and testimony, claims that all the representations he in fact made were true, but whether true or false, they were not relied on by Stevens in making the purchase.

It is claimed there was an error in admitting in evidence the verbal statements made by Hicks in regard to the tube-closer, prior to the written agreement for its sale. Such statements were not admitted for the purpose of changing the terms of the written contract, but to show that its execution was procured through fraudulent misrepresentations on the part of the vendor, and for that purpose it was certainly proper to admit them.

But it is said there is no charge of fraud in the bill, and • hence there was no foundation in the pleadings to justify the admission of the evidence. This is a misapprehension. Good pleading requires fraud to be charged specifically, and not in general terms. The facts relied on as constituting fraud should be set forth, so as to apprise the opposite party what lie is called on to meet. (Elston v. Blanchard, 2 Scam. 420; Davis v. Pickett, 72 Ill. 483.) The bill sets forth the specific representations made by Hicks which induced the complainant to make the purchase, and then charges “that the representations in the circular given by Hicks to the complainant and Jones, and the representation that by Hicks’ experience by the use of said invention great saving of steam and fuel could be made, and other representations of like effect, whereby complainant and Jones were induced to purchase said rights, are and were utterly false, and said invention is worthless, and by its use no saving of any practical value can be made, ” and were known -by Hicks to be worthless and of no value. The facts alleged in the bill, if true, constitute a fraud. If it were otherwise, Hicks should have interposed a demurrer, or motion to dismiss for want of equity.

It is urged that Stevens did not rely on any of the representations made by Hicks, but acted upon his own judgment, and that if he did rely upon them, he was guilty of such negligence, in failing to properly investigate, as to deprive him of any equitable relief. To entitle a party to relief, either legal or equitable, on the ground of a fraudulent misrepresentation, he must have relied upon the representation as true, for unless the representations are believed to be true, and acted upon, it can cause no legal injury. It is necessary that he should trust the representation, but it. is not essential that the false representation should b.e the sole-inducement to his entering into the contract. (2 Pomeroy’s Eq. Jur. sec. 890; 2 Parsons on Contracts, 5th ed. 773.) The party acting upon a representation must, under the circumstances of the case, have been justified in relying upon it, in order to entitle him to relief. As stated in Pomeroy’s Equity Jurisprudence, (sec. 891:) “It may be laid down as a general proposition, that where the statements are of the first kind, (relating to substantial matters of fact, and not mere opinion,) and especially when they are concerning matters which, from their nature or situation, may be assumed to be within the knowledge or under the power of the party making the representation, the party, to whom it is made has a right to rely on it; * * * and in the absence of any knowledge of his own, or of any facts which should arouse suspicion and cast doubt upon the truth of the statements, he is not bound to make inquiries and examination for himself. It does not, under such circumstances, lie in the mouth of the person'asserting the fact, to object or complain because the other took him at his word. If he claims that the other party was not misled, he is bound to show clearly that such party did know the real facts. The burden is on him of removing the presumption that such party relied and acted upon his statements.” And in section 895 the same author says: “When a representation is made of facts which are or may be assumed to be within the knowledge of the party making it, the knowledge of the receiving party, concerning the real facts, which shall prevent his relying on and being misled by it, must be clearly and conclusively established by the evidence. ”

When a party ignorant of the real facts, and having no ready means of information, makes a purchase or enters into a transaction, as to the subject matter of which representations have been made which are material, the law will presume, as a matter of fact, that he relied on them. Redgrave v. Hurd, 20 L. R. (Ch. D.) 1; Nichols’ case, 3 DeG. & J. 387; Fishback v. Miller, 15 Nev. 428; Benjamin on Sales, (4th Am. ed.) 465, note b.

If false representations are made as to matters of fact, and the means of knowledge are at hand, and equally available to both parties, and the purchaser, instead of resorting to them, trusts the vendor, the law, as a general rule, will not relieve him from his own want of ordinary’prudence. (Cooley on Torts, 487.) This is the case where the property is tangible and is at hand, and subject to inspection. But a different rule obtains when the property is at a remote distance, or where the property right is intangible, and the falsity of the= representations can not.be detected by inspection. In Smith v. Richard, 13 Pet. 26, it is held, that when a sale is made of property, but at a remote distance, which the purchaser knows that the seller has never seen, but which he buys upon the representation of the seller, relying on its truth, such representation, in effect, must be deemed to amount to a warranty, or at least that the seller is bound to make it good. Cooley on Torts, 488; Maggart v. Freeman, 27 Ind. 531; Lester v. Mahan, 25 Ala. 445.

In the case at bar, the purchaser was wholly unacquainted with the use, operation and management of steam boilers, and of the utility and value of the invention, and it is doubtful whether its capabilities, usefulness and practical value could then have been determined, even by experts, without very considerable use and long experiment. At the date of this contract, the patent, though allowed, had not been issued, and but few of the tube-closers had been used or tested by others than the inventor. Stevens testifies that he had not seen the tube-closer in use or operation before he signed the contract; that he inquired of several to whom he was referred by Hicks, but could learn nothing as to its merits, except from one party, who said he had tried it, but had thrown it away. When Hicks was informed of this, he said he had met a similar case, and had fixed it up so that it worked all right, and that he would do the same with this one. Hicks was the inventor, and claimed to have made thorough tests of his,invention, and, presumably, had a greater knowledge of its use, capabilities, utility and value than any other person. From these facts, and his profession of friendship to Jones, and of his desire to put him into a good paying business, we think Stevens and Jones not only relied upon the representations, but had a right to rely on them, in making their purchase. (Allin v. Millison, 72 Ill. 201.) It is true that Hicks told Stevens and Jones not to take his word, but to satisfy themselves as io the merit of his invention before buying; but this can not irelieve him from liability for his misrepresentations made for '.the purpose of inducing the purchase. He must have known that but little, if any, information could be obtained, by inquiry, from the fact the tube-closer had not been brought into general use. The inquires made proved fruitless; as he. must have known they would.

In 2 Pomeroy’s Equity Jurisprudence, (see. 896,) it is said: “If, therefore, the party accompanies or follows his misrepresentations by words of general caution, or by advice to the other that he consult his friends or professional advisers before concluding the agreement, he does not thereby counteract any effect upon the'transaction which his. untrue statement would otherwise produce,”—citing Raynal v. Sprye, 1 DeGf., M. & G. 709; Smith v. Richard, 13 Pet. 26.

In Eaton v. Winnie, 20 Mich. 126, the court say: “When one assumes to .have knowledge upon a subject of which another may well be ignorant, and knowingly makes false statements regarding it, upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it, was guilty of negligence in so doing, so as to be precluded from recovering compensation for the injury which was indicted upon him under cover of the falsehood, ”—citing Pennsylvania Railroad Co. v. Oglen, 35 Pa. St. 72; Gordon v. Grand Street Railroad Co. 40 Barb. 550; Evart v. Hudson River Railroad Co. 35 N. Y. 28. See, also, Wabash v. Hall, 66 N. C. 233; Oswald v. McGehee, 28 Miss. 340; McClellan v. Scott, 21 Wis. 81; Starkweather v. Benjamin, 32 Mich. 305; Kendall v. Wilson, 41 Vt. 567; Pierce v. Wilson, 34 Ala. 603.

To maintain an action at law for fraud and deceit, arising from false representation of a material matter connected with a transaction, it is necessary to show that the party making it knew it to be false, or occupied such a position as that the law would impute to him a knowledge of the fact. A person can not, it is believed, be free from fraud, in a court of equity, when he makes a positive representation of a material fact which he does not know to be true or has good reasons to believe is true, and which, in point of fact, is false. In Allen v. Hart, 72 Ill. 104, it is held that it is not indispensable to a right to rescind a contract, that the party making the representation knew it to be false, provided it is material and the other party had a right to rely upon it, and did so, and was deceived,—and this is believed to be sustained by the weight of authority. In this case, Hicks’ facilities were superior to those of any one else, for knowing whether the representations made by him were true. If he did not, in fact, know them to be true, he should not have so asserted to Stevens, whom he knew had no means at hand by which to detect .their falsity.

There was no error in admitting in evidence the printed circular of Hicks, showing the valuable qualities of his invention. The proof shows that he gave Stevens one of them during their negotiations, containing material and important representations of what his invention would accomplish as a means of saving steam and fuel,—that it would save its cost in a month,—while the proof showed that, practically, it was of no value in the respect mentioned in the circular. These circulars were printed and distributed for the purpose of inducing others to purchase rights of him, and the statements therein may be regarded as of a more deliberate character than if made in a conversation. They were properly admitted. See 2 Pomeroy’s Bq. Jur. sec. 881, and also Cooley on Torts, 477.

As a general rule, representations as to the value of property sold, though exaggerated, do not constitute fraud; but it has some exceptions. As said in Cooley on Torts, page 484: “There are some cases, however, in which even a false assertion of an opinion will amount to a fraud, the reason being, that, under the circumstances, the other party has a right to rely upon it without bringing his own judgment to bear. Such is the case when one is purchasing goods the value of which can only be known to experts, and is relying upon the vendor, who is a dealer in such goods, to give him accurate information concerning them. The same rule has been applied when a dealer in patent rights sold certain territory to one who was ignorant of its value, representing it to be very valuable, when he knew it was not.” (See Allen v. Hart, 72 Ill. 104.) The value of a patent right, for the purpose of sales, depends largely upon the usefulness of the invention, and the demand for the article patented.

Objection is made to the admissibility of some other evidence. In chancery it will be presumed that the court eon- ■ sidered and acted only upon such as may be proper. As the other evidence in the ease is sufficient to sustain the decree of the Superior Court, it will hot be necessary to consider the objection.

It is also claimed that the Appellate Court erred in directing that the $250 paid by Stevens be added to the money decree. Before Stevens was introduced to Hicks, the latter made sale to Jones of an option to purchase the right to the State of New York, at $20,000, and Jones had paid him $500 therefor. Jones was not bound to take the right for the State of New York, but if he did not, he could not recover back the money he had paid for the option. Stevens bought of Jones a half interest in the option, for which he paid Jones $250. To this transaction Hicks was not a party. If Jones and Stevens together failed to purchase the State right, Stevens could not have called on Hicks to refund to him the money he had paid to Jones; and when the contract for the purchase of the right for the State of New York was rescinded, it was the same, in substance, as if it had never been made. Hicks was again placed where he was before his sale, and Jones and Stevens having failed to exercise their option, could not compel Hicks to return the price paid for it. The bill did not seek to set aside and rescind Jones’ contract for the purchase of the option. Nor did Hicks refuse to let either Jones, or Jones and Stevens, purchase the right for the State of New York, but, on the contrary, was anxious to have them take it. This ruling of the Appellate Court is, we think, clearly erroneous.

The judgment of the Appellate Court will be reversed as to so much of its judgment as adds to the decree the said sum of $250, and the decree of the Superior Court is affirmed.

Judgment reversed in part and in part affirmed.


author: Mr. Justice Scholfield

text:
    The Concordia Cemetery Association v. The Minnesota and Northwestern Railroad Company.

      Filed at Ottawa June 17, 1887.

    1. Eminent domain—measure of damages—as to land claimed to be held for cemetery purposes. If property sought to be condemned by a railway company for a right of way is claimed by a cemetery company, it may be shown, on the question of the compensation and damages, that the land is not used for burial purposes, and is not susceptible of being used for cemetery purposes. The owner of the land is entitled to have the highest price for which the same can be sold for any purpose.
    2. Same—comparative values, as aiding in fixing the measure of damages. Evidence in regard to sales of prairie land one mile distant from the land sought to be condemned for a right of way, may be received, as tending, in some measure, to show the value of the land involved, when there is no evidence of any actual present market value, nor of sales of like property nearer. When the land sought to be taken is not laid out into lots, and improved as cemetery property, proof of sales of lots in other cemeteries is not competent evidence on the assessment.
    3. Same—benefits, when to be considered. It is competent to consider special benefits to property claimed to be damaged, but not taken, for the purpose of reducing, or, rather, to the extent of the special benefits, of showing that there are no damages.
    4. Same—an instruction construed, ■ as to the application of benefits. In a proceeding for the condemnation of a right of way, the court instructed the jury that the defendant was entitled, as compensation, to the cash market value of his land sought to be taken, as of the date of the petition, and damages to the remainder of his land described in his cross-petition, and then instructed that the total compensation and damages to which the defendant was entitled, must be equal to, but must not exceed, the difference between the fair market value of the whole land described in the petition and cross-petition, as it was on the date of the petition, and the fair market value of what remains after the taking of part by the petitioner and the appropriation thereof to its use. The jury awarded $2380 for the land taken, and $0450 for damages to land not taken: Held, that it must be presumed that the $6450 was in excess of any and all special benefits to the lands damaged and not taken, and consequently that no benefits were allowed against the value of the land taken.
    5. Same—to what time the finding of compensation, etc., should relate. The value of the property taken, and the damages to that not taken, are to be assessed as of the date of the filing of the petition. The taking and damaging, in theory, are then done, and it is the value of the property as then presumably enhanced by the prospective benefits to result from the construction of the road, which the owner is entitled to be reimbursed, to the extent he has been deprived of it by the taking and damaging.
    6. Same—submitting several cases to same jury. Under the statute, the compensation may be assessed by the same or different juries, as to two or more separate tracts of land described in the same petition, although belonging to different owners. This is a matter within the discretion of the trial court, and unless such discretion is shown to have been abused, it will not be interfered with.
    7. Ordinance—improper discrimination as to persons to be affected. An ordinance making improper discriminations between different persons or corporations similarly situated, there being nothing, in the nature of things, requiring such difference, is.unreasonable, and therefore will not be enforced.
    8. Cemeteries—boundaries, how fixed—and whether land acquired becomes a part of a cemetery. A town ordinance provided that the boundaries of all cemeteries within the corporate limits, which were not inclosed, should be the same as then appeared of record in the maps, plats or deeds thereof. Under such an ordinance, a deed conveying land as a cemetery, on its face being a dedication of it as a cemetery, would prescribe and fix its boundaries; but a deed of land to a corporation empowered to buy'and sell land for burial purposes, is not, ipso facto, a deed creating a cemetery, and prescribing its boundaries. t
    9. The mere acquisition of title to lands by a cemetery company before they are platted and laid out as such, will not make the same a part of a cemetery. Such lands, until actually prepared and devoted to burial purposes, do not become a part of a cemetery by merely being within the same inclosure.

      10. Corporations—hold their franchises subject to the police power. All corporations accept their franchises subject to regulation under the police power; and it is competent under that power, in proper cases, to regulate or restrain burials of the dead within villages or cities.
    11. Error—when working no injury. The refusal to give a proper instruction will not call for a reversal of a judgment, when every legal proposition asked therein has been given in other instructions; and the same rule applies where the instruction is so modified as to amount to a refusal of its propositions, but contains no inaccurate rule of law.
    Appeal from, the Circuit Court of Cook county; the Hon. John G. Eogers, Judge, presiding. Bill of exceptions signed by Lorin C. Collins, by stipulation, owing to the death of the trial judge.
    Mr. Martin Beem, Mr. Carlos P. Sawyer, and Mr. E. S. Thompson, for the appellant:
    The court erred in giving to the jury petitioner’s fourth instruction, and in modification of petitioner’s first instruction. Starr & Curtis’ Stat. chap. 47, par. 9; Page v. Railway Co. 70 Ill. 324; Carpenter v. Jennings, 77 id. 250; Green v. City of Chicago, 97 id. 372; Mills on Eminent Domain, secs. 174, 162; Railroad Co. v. Black, 58 Ill. 33; Railroad Co. v. Henry, 79 id. 290; McReynolds v. Railroad Co. 106 id. 152; Todd v. Railroad Co. 78 id. 530; Railroad Co. v. Blake, 116 id. 169; Wilson v. Railroad Co. 59 id. 275; Railroad Co. v. Laurie, 63 id. 268.
    The court erred in giving to the jury petitioner’s sixth instruction, marked seventh. Hankins v. People, 106 Ill. 632; Potter’s Dwarris, p. 146, sec. 21, and pp. 458, 471, sec. 120, note; Bruffett v. Railroad Co. 25 Ill. 310; Potter’s Dwarris, p. 111, note S; Lake View v. Cemetery Co. 70 Ill. 191; Mills on Eminent Domain, sec. 170; Railroad Co. v. Catholic Bishop, 119 Ill. 525; Railroad Co. v. Jacobs, 110 id. 414; Johnson v. Railway Co. 111 id. 413.
    The court erred in refusing to give defendant’s fifth instruction as asked, and in modifying the same, and in giving the same as so modified. Jones v. Railroad Co. 68 Ill. 383; Railroad Co. v. Hopkins, 90 id. 322; Railroad Co. v. Maffett, 59 id. 237; Railway Co. v. Railroad Co. 100 id. 21; Const. 1870, art. 2, sec. 13; Town of Earlville v. Carter, 2 Bradw. 34; Railroad Co. v. Henry, 79 Ill. 292; Morgan v. Peet, 32 id. 288; Railroad Co. v. Catholic Bishop, 119 id. 525; Haslam v. Railroad Co. 64 id. 355 ; Insurance Co. v. Robinson, 98 id. 331.
    The court erred in allowing the jury, during the trial, to be' sworn to assess damages and compensation to be paid another party defendant for his land, in giving' them instructions therein, and in allowing them to hear evidence and render a verdict therein, where there was no contest as to the amount to be awarded. Johnson v. Railroad Co. 116 Ill. 525.
    The evidence having been highly conflicting as to the controverted facts and issues, the several instructions should have been accurate. Ruff v. Jarrett, 94 Ill. 475; Railway Co. v. Henks, 91 id. 406; Swan v. People, 98 id. 610; Railroad Co. v. Maffit, 67 id. 431; Railroad Co. v. McMath, 4 Bradw. 356.
    When the jury have been instructed upon a wrong theory, it is ground for reversal. Green v. Chicago, 97 Ill. 373.
    Messrs. Gardner, McFaden & Gardner, for the appellee:
    ■ A strip of land one hundred feet wide, in the location of this cemetery, would not be of any particular value by itself. Its increased value arises from the fact that it is connected with the balance of the land, and forms a part thereof. Railroad Co. v. Blake, 116 Ill. 163.
    Even if said fourth instruction was erroneous, as authorizing the jury to deduct benefits from compensation, yet as the jury in fact found that there were no benefits, therefore they were not misled by the instruction, and the Supreme Court will not reverse for error therein. Davenport v. Ryan, 81 Ill. 218; Race v. Oldridge, 90 id. 250; Beard v. Maxwell, 113 id. 440.

      The village board had the authority to pass the ordinance. Coates v. Mayor, 7 Cow. 584; Brick Church v. New York, 5 id. 538; Kincaid’s Appeal, 66 Pa. St. 411.
    In an eminent domain proceeding, all evidence is admissible which tends to establish the cash market value of the land at the time the petition was filed, for the best use to which it was then adapted; but evidence tending to establish a remote and speculative value' in the future is improper. Railway Co. v. Walsh, 106 Ill. 253; Dupuis v. Railway Co. 115 id. 197.
    The same jury may assess the compensation and damages of several distinct tracts and owners. Bowman v. Railroad Co. 102 Ill. 465; Mills on Eminent Domain, sec. 267.
    ■ Again, the court has a very large discretion in deciding what evidence of sales of similar land is admissible, and the Supreme Court will -not reverse for this reason unless ihe grossly abused his discretion. Watson v. Railroad Co. 57 Wis. 332, and cases cited; Washburn v. Railroad Co. 59 id. 364.
   Mr. Justice Scholfield

delivered the opinion of the Court:

1

This proceeding was commenced by petition, filed in the court below, by the Minnesota and Northwestern Railroad Company, to condemn, for its right of way, a strip of land one hundred feet in width, across certain lands belonging to appellant, in the village of Harlem, in Cook county. Appellant filed a cross-petition in the proceeding," alleging therein that the strip of land proposed to be condemned was a part of a larger tract acquired and held by it for burial purposes, and claiming damages to that portion of the tract not taken. A trial was had, and the jury returned a verdict awarding to appellant $2380 as compensation for the land taken, and $6450 as damages to the land not taken, upon which the court, after overruling" a motion for a new trial, rendered judgment. Appellant brings the record here, and insists that the court below erred in its rulings on the trial, to the prejudice of appellant, in the several respects hereinafter considered.

First—The first and fourth instructions given to the jury, at the instance of the petitioner, are as follows:

“1. The jury are instructed, as a matter of law, that defendant is entitled, as compensation, to the cash market value of its land proposed to be taken by the railroad on September 6, 1886. The defendant is also entitled to damages to the remainder of its land, described in the cross-petition, which will be caused by the construction and operation of the railroad.
“4. The jury are instructed that the total compensation and damages to which the defendant is entitled, under the first instruction, must be equal to, but must not exceed, the difference between the fair market value of the whole land described in the petition and cross-petition, as it was on September 6, T8S6, and the fair market value of what remains after the taking of part by the railroad company, and the appropriation thereof to its use.”

It is contended that this directed the jury to deduct any benefits which the railroad might cause to the remainder of the land, from the value of the strip taken. This, it is obvious, could only be true in the event that the benefits exceeded the damages to the land not taken. We have held it is competent to consider special benefits to property claimed to be damaged but not taken, for the purpose of reducing, or, rather, to the extent of the special benefits, of showing that there are no damages. Page et al. v. Chicago, Milwaukee and St. Paul Railway Co. 70 Ill. 328; Chicago and Pacific Railroad Co. v. Francis, id. 238; Todd v. Kankakee and Illinois River Railroad Co. 78 id. 530; Chicago, Milwaukee and St. Paul Railroad Co. v. Hall, 90 id. 42; McReynolds v. Burlington and Ohio River Railway Co. 106 id. 152.

We have seen that the verdict here finds the value of the land taken to be $2380, and the damages to lands not taken to be $6450, and it is. therefore to be presumed that this $6450 is in excess of any and all special benefits to the lands damaged and not taken. Assuming the damages to exceed the benefits in the respect stated, “the difference between the fair market value of the whole land described in the petition and cross-petition, as it was on September 6, 1886, and the fair market value of what remains after the taking of part by the railroad company and the appropriation thereof to its use,” makes appellant whole,—gives it, presumptively, the same money values, notwithstanding the taking, that it would have had, had" its land not been taken and damaged, for it gets the value of its land, as of the date of the taking, and the damages it sustains, (the extent of its injuries over its benefits,) to its property not taken. Green v. Chicago, 97 Ill. 370.

The parties agree that the value of the property taken and the damages to the property not taken, should be assessed as of the date of filing the petition. And this being so, there can be no presumption that general benefits have been deducted from the valuation. The taking and damaging are, in theory, then done, and it is the value of the property, as then, presumably enhanced by the prospective benefits to result from the construction of the road, which the owner is entitled to be reimbursed, to the extent he has been deprived of it by the taking and damaging.

Second—Appellant is a corporation organized under the general law, to buy and sell real estate for burial purposes. It owns real estate conveyed to it by deeds conveying the title generally, without specifying the purpose. Its real estate, including that here taken and damaged, lies within the limits of Harlem, in Cook county, a village incorporated under the general law. The following ordinances of the village were duly adopted, at the date annexed, and thence hitherto have remained, and still are, in force, as ordinances of the village, namely:

“Cemeteries.
“Be it ordained by the President and Board of Trustees of the Village of Harlem:
“Section 1. That no corpse shall he interred in any place within the limits of the village of Harlem not actually used as a cemetery on the 1st day of October, 1884, or lying within the enclosure of a cemetery not established on or before said day, except as hereinafter provided.
“Sec. 2. No corporation, or person or persons, shall establish or open any cemetery within the limits of the village of Harlem, unless the board of trustees of said village of Harlem shall first fix and determine the location .of such cemetery, and fix the boundaries thereto.
“Sec. 3. The boundaries of all cemeteries within the limits of the village of Harlem are hereby fixed at the enclosures now surrounding any such cemeteries; and the boundaries of such cemeteries as are not enclosed, shall be the same as now appear of record in the maps, plats or deeds of such cemeteries.
“See. 4. No corporation, person or persons, shall enlarge the boundaries of any cemetery within the limits of the village of Harlem, as the same are now recorded, unless the board of trustees shall fix and determine the boundaries of any cemetery so to be enlarged.
“Sec. 5. It shall be lawful to inter dead bodies within the limits of any cemetery established and used as a cemetery on the 1st day of October, 1884, under such rules and regulations as may, from time to time, be made by the board of trustees; but the burial of any corpse outside of such limits, and within said village of Harlem, shall be deemed a violation of sections 1 and 2 of this ordinance.
“See. 6. If any person shall violate any of the provisions of this ordinance, he shall be fined, on conviction thereof, not exceeding $100, or imprisoned not exceeding three months, or both, in the discretion of the court. ' It shall be lawful for the court to order the offender to disinter any and all dead bodies that he may be proven to have buried contrary to the provisions of this ordinance, and to enforce obedience to such order by fines or imprisonment, or both. It shall be lawful for any person, under the direction of the board of trustees, to disinter any corpse buried contrary to the provisions of this ordinance, and to remove and re-inter the same within the lawful bounds of any cemetery.
“Passed October 11, 1884.—Approved October 14, 1884.
Leo G. Haase, Village Clerk.
J. H. G. Sohroedeb, President.”

It was agreed, for the purposes of this trial, that in October, A. D. 1884, the following described fences were the only fences on the property of said defendant, described in its cross-petition herein: “From the north-east corner of said ‘west four acres of lot two (2,)’ extending west along the north line of defendant’s property, on Madison street, to within twenty (20) feet of the Desplaines river, said fence being a picket fence; thence a similar fence, in a curving line, skirting the said river southerly, to a point about three hundred and thirty-eight (338) feet north of said petitioner’s proposed right of way, thence in an easterly direction to the western line of said lot three (3.) A similar picket fence on the extreme southern boundary of said defendant’s said property, separating the same from Waldheim cemetery, and extending from the Desplaines river in a direct line east, along the line of said Waldheim cemetery. A fence extending from the south-east corner of lot 6 of said defendant’s property, in a northerly direction, along the east line of said lot six (6) and of said lot three (3,) to the north-east corner of said lot three (3,) thence in a westerly direction along the north line of' said lot three (3) to the south-east corner of said west four acres of lot two (2,) thence north along the east line of said west four acres of said lot two (2) to Madison street. Also, a fence extending from the north-west corner of said west four acres of lot two (2,) at its intersection with Madison street, in a southerly direction, along the west line of said west four acres, for about two-thirds the length of said west line of said west four acres; thence in an easterly direction to the east line of said west four acres of lot two (2.) ” This will be more intelligible by reference to the annexed map :

__ The evidence shows that the grounds laid out into cemetery lots and improved for cemetery purposes on the 1st day of October, 1884, were all on the north side of the fence described as running east from a point about 338 feet north of the petitioner’s proposed right of way, thence in an easterly direction to the western line of lot 3, which lot did not then, but does now, belong to the appellant. There seem to have been two graves of children on or near the right of way, put there, not in good faith, as an extension of the cemetery, but after notice of the survey of petitioner’s line, under and because of legal advice then given.

The court instructed the jury, at the instance of appellee, that “under the ordinance of the village of Harlem, offered in evidence, the cemetery association, defendant, had no right to bury any dead on the land described in the petition, unless at the time of its passage said land was actually used as a cemetery, or inclosed within the grounds of the association. If the jury believe, from the evidence, that at the time of the passage of the ordinance said land was not so used or so enclosed, then the jury are instructed, that in determining the market value of the land proposed to be taken, for the purpose of assessing the compensation, its value for cemetery purposes is not to be considered by the jury.”

It is contended that this instruction ought not to have been given,—that its effect is to mislead, because, under the ordinances of the village, it was sufficient (this cemetery not being enclosed) that its boundaries were co-extensive with the deeds to appellant. We are unable to yield our assent to this construction. We can not assume that the village trustees intended to apply different rules, in this respect, to different cemeteries, unless there was something in the nature of things requiring such difference, because such a discrimination would be unreasonable and unjust, and the ordinances could not, therefore, be enforced. Cooley’s Const. Lim. (6th ed.) 200, 201. There can be no reason why a- corporation having grounds, some enclosed and some unenclosed, should be restricted in the use of its grounds more than a corporation not having any of its grounds enclosed, or why a corporation which has platted some of its lands should be more restricted than a corporation which has made no plat. The language of the ordinance here is, not that the boundaries shall, in any instance, be co-extensive with the lands owned,—as, if that had been intended, it is reasonable to assume would have been said,—it is: “The boundaries of all cemeteries * .* * are hereby fixed at the enclosures now surrounding any such cemeteries, and the boundaries of such cemeteries as are not enclosed shall be the same as now.appear of record in the map, plat, or deeds of such cemeteries, ”—that is, of course, assuming that there is a map, plat or deed showing a boundary of a cemetery. And so a deed of a described tract of land conveying it as a cemetery, would be a dedication of it as a cemetery, and prescribe the boundaries of the cemetery. But, manifestly, a deed of land to a corporation empowered to buy and sell land for burial purposes, is not, ipso facto, a deed creating a cemetery and prescribing its boundaries! Such a corporation has a discretion when to lay out its grounds for cemetery purposes, as well as how, and until its lands are laid out and opened to the public as a cemetery, they are, simply, lands belonging to a cemetery corporation. Such corporations, in order to get the requisite lands, may, unavoidably, be compelled to buy some other lands not adapted to cemetery purposes, and when they do so, such lands may be sold by the corporation without even becoming a part of any cemetery. The manifest purpose here was, to declare the boundaries of cemeteries to be the limits of lands actually prepared and devoted to burial purposes. Lands not devoted to burial purpose's would not become a part of the cemetery by merely being within the same enclosure, for the language is not “the enclosures now surrounding the lands of the person or corporation owning the cemetery, ” but “the enclosures now surrounding any such cemeteries. ” The word “cemetery,” is defined by Webster tó be “a place or ground set apart for the burial of the dead,” and this is the popular idea. What creates the cemetery is the act of setting the" ground apart for the burial of the dead, marking it, and distinguishing it from the adjoining ground, as a place of burial. That the ground taken by appellee has never been set apart, in any way, for burial purposes, is proved beyond doubt.

The evidence shows, that before burials are allowed on grounds belonging to appellant, the grounds are laid off and improved for cemetery purposes, and then appellant sells burial lots and single graves to parties desiring to purchase. And evidence was given by Leopold Brauns, appellant’s president and treasurer, as to the value of such lots and graves, for the purpose of showing the value of the land here taken, etc., when the following questions were asked, and answers thereto given:

Q. “ Could you sell lots to-day at any price, at the point where this railroad crosses the cemetery grounds, or the grounds belonging to the cemetery company, at any price ?
A. “If we had laid out our sections we could.
Q. “I mean, as it stands to-day, could you sell cemetery lots down there, at any price ?
A. “We haven’t any; we have to have them first before we can sell them. We have to lay them out in sections.”

We think the court properly construed the ordinance.

But counsel again contend, that this construction is to declare a partial or total forfeiture of appellant’s franchise, because if not permitted to use this ground for burial purposes, it is wholly deprived of the use of its property. This is a misapprehension. Lands belonging to cemetery associations incorporated under the laws of this State, not suitable or required for burial purposes, may be sold under the provisions of the act approved May 15, 1875. (Public Laws of 1875, pp. 40, 41.) All corporations accept their franchises subject to regulation under the police power. Cooley’s Const. Lim. (1st ed.) p. 574, et seq., and note. And it is competent, tinder that power, in proper eases, to regulate or restrain burials within villages and cities, etc. (Id. p. 595.) The present case does not involve the question decided in Lake View v. Rose Hill Cemetery, 70 Ill. 195. In that case it was affirmatively shown that the lands were at a proper distance from the populous part of the city, in a sparsely settled community, and that there were but few dwellings in the vicinity. No such facts are here shown. It was there conceded that the matter of burials was a proper subject of municipal regulation. •

Third—It is contended the court erred in allowing the jury, during the trial, to be sworn to assess, and to hear evidence and assess, damages as to other parties. It is provided by section 5, of chapter 47, of the Revised Statutes of 1874, entitled “Eminent Domain, ” that “any number of separate parcels of property, situate in the same county, may be included in one petition, and the compensation for each shall be assessed separately, by the same or different juries, as the court or judge may direct.” We are unable to say, from anything before us, that the court abused the discretion thus conferred.

Fourth—It is objected that the court erred in allowing witnesses to testify as to the value of property not used, or susceptible of being used, for cemetery purposes. But if we are right in holding that the court properly construed the village ordinance, this property is not susceptible of that use. We have carefully considered all the evidence, "and while much latitude was allowed on both sides in examining witnesses as to the value of the property taken, and the damage to that not taken, we can not say there was error. Appellant was entitled to have the highest price for which the property could be sold for any purpose, and that idea was, on the whole, kept in view.

Fiftli-—We can not say that evidence in regard to sales of prairie land one mile distant, was incompetent, as not tending. in any measure, to show value, there being no evidence of an actual present market value of this particular property, nor of sales of like property nearer, under circumstances which would be conclusive of the question of value.

Sixth—Sales of lots in other cemeteries are claimed to have been competent evidence. We think not, because this property was not laid off into lots and improved as cemetery property.

Seventh—Objection is made to the modification of appellant’s fifth instruction. The modification was undoubtedly improper. It was, in fact, a refusal to give appellant’s proposition ; and the instruction, as modified, while stating no rule of law inaccurately, was wholly irrelevant to the case. But every legal proposition which appellant asked to have given in his fifth instruction, was given in substance, and with sufficient fullness, in his fourth and seventh instructions, and he could not have been injured by not having them repeated.

Eighth—It is contended the verdict is contrary to the evidence. We do not think so. While the jury might have been justified in giving a larger sum, we can not say they erred in not doing so. No improvements are affected by this taking, the land taken, and that in its immediate vicinity, being still in a state of nature; and it is only by a system of conjectures as to future probabilities, that appellant figures up a sum for compensation in excess of that returned by the jury. There ean'be no present certainty as to the data upon which these calculations rest, and they are, therefore, not a proper basis for a verdict..

The judgment is affirmed.

Judgment affirmed.