Elgin, Joliet & Eastern Railroad v. Fletcher

Citations

• 128 Ill. 619
• 21 N.E. 577

Syllabus

<p>1. Eminent domain—measure of damages—how far controlled by the stipulation of petitioner. It is competent upon the trial of a condemnation proceeding, for the petitioner to bind itself, by an offer in open court, to the performance of duties, such as to inclose its right of way over the defendant’s land in a shorter time than required by statute, and construct and maintain a suitable and proper underground crossing under the road-bed, etc., and thereby, and to the extent that such performance will prevent damages that would otherwise occur, abridge the land owner’s claim for damages.</p> <p>2. Where the petitioner, on the trial, offers and agrees to fence its right of way over defendant’s land, and make the necessary, suitable and proper farm crossings and cattle-guards on or before a day named, which is a less period than the statute fixes, all the damages recoverable because of the road not being fenced, or for want of crossings, etc., will be those sustained before the day named.</p> <p>3. Same—judgment of condemnation subject to performance of stipulation. Where the petitioner, on the trial, in open court, agrees to perform duties not required by the statute, or in less time than the law requires, for the purpose of lessening the damages, the judgment should vest the rights obtained by the condemnation, subject to the performance of such duties, so as to insure their performance.</p> <p>4. Same—offer of petitioner—how far binding as a contract. E an offer of the petitioner, in open court, on the trial, to make fences, crossings, etc., in a shorter period than that required by statute, is taken in consideration in the assessment of damages, the liability of the petitioner in that regard will thereafter become one by virtue of express contract, and if the contract is not performed, an action will lie for its breach.</p> <p>5. Same—binding character of offer of petitioner as a question of law or fact. Whether an offer by a railway company, on the assessment of d