Chicago, Santa Fe & California Railway Co. v. Phelps

Citations

• 125 Ill. 482
• 17 N.E. 769
• 1888 Ill. LEXIS 1127

Syllabus

<p>1. Eminent domain—right of entry pending petitioner’s appeal. Where-a railway company prosecutes an appeal from the assessment of compensation and damages, and gives the bond provided for in section 13 of the Eminent Domain act, conditioned for the payment of such compensation as may be finally adjudged in the case, it will have the right to enter upon the use of the property pending the appeal, and it will be error in the trial court to refuse the petitioner an order authorizing such entry and use.</p> <p>2. Same—conditional acceptance by land owner of compensation money deposited as a condition to granting'right of entry pending appeal—effect upon the appeal itself. Where a railway company seeking a condemnation, for right of way and for depot grounds, appealed from the assessment of compensation and damages, and was required to deposit the amount of the assessment with the county treasurer before the court would make an order giving a right of entry pending the appeal, and the land owner, before the trial of the appeal, received the condemnation money of the treasurer upon condition he would return the same to the company in case of a reversal of the judgment, it was held, that the receipt of the money under such circumstances was not such a satisfaction and extinction of the judgment as that no appeal would lie from it, and consequently no ground for dismissing the appeal. In such case, the payment was not intended by the parties as a payment of the judgment appealed from.</p> <p>3. Same—damages as to land not taken—burden of proof—evidence in rebuttal. The petitioner, in seeking to condemn land for railway purposes, is not bound to assume that land not taken will be damaged, and go on and make proof in respect of it, nor, in the absence of proof by the land owner tending to show such damage, is it bound to assume the burden of proving a negative.</p> <p>4. On the assessment of the compensation for land sought to be condemned for a railroad depot and right of