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

Citations

• 128 Ill. 349
• 18 N.E. 828
• 1888 Ill. LEXIS 1015

Syllabus

<p>1. Eminent domain—waiver of trial by jury—as to preliminary facts. Where the petitioner, in a proceeding to condemn land for railroad purposes, makes no objection below to the action of the court in hearing evidence in reference to the title and rights of the defendant in the premises sought to be taken, and finding those rights without a jury, but participates in such hearing and offers evidence, it will be estopped from making the objection in this court that the preliminary facts were not f ound by a jury. In a civil case it is always competent for the parties to waive a jury and submit their case, or any part of it, to the court for decision.</p> <p>2. Same—general exception—to what it relates. On petition to condemn, before the case was submitted to the jury, the record showed that the parties appeared, and each introduced preliminary proof to the court as to the extent of the defendant’s interest and right, without objection or protest, and made suggestions to the court, and that the court found such right and interest of the defendant in the premises, after which the record recited, “to which ruling and order of the court the petitioner now here exceptsHeld, that the exception had reference to the conclusion reached by the court after hearing the preliminary proofs, and not to the fact that the court heard and passed upon such proofs without a jury.</p> <p>3. Same—measure of damages—rights appurtenant as an element. On a proceeding to condemn the south half of a lot, to which was annexed, as appurtenances, a right of way over the other half of the lot, a coal office and scales also upon such other half, and a side-track in an adjacent alley, such appurtenances are property interests connected, with the land sought, and there is no error in instructing the jury to take such rights, privileges and appurtenances into consideration in determining the fair market or cash value of the south half of the lot, as they are proper elements of value to the property to