Emerson v. Western Union Railroad

Citations

• 75 Ill. 176

Syllabus

<p>1. Chancery practice — objection to jurisdiction, how taken. In chancery, an objection on the ground of want of jurisdiction, if apparent upon the face of the bill, may be taken by demurrer; if not, by plea. In this State, the objection, if apparent on the' face of the bill, may be taken by motion to dismiss. In such case, the motion, like a demurrer, admits all facts well pleaded.</p> <p>3. Admission — by the pleadings, effect of motion to quash. On petition for the appointment of commissioners to assess damages in a proceeding to acquire a right of way, the filing of a written protest by a land owner sought to be affected, and basing a motion thereon to quash the proceeding for want of jurisdiction, like a demurrer, admits all the facts in the petition which are. well pleaded.</p> <p>3. Beal estate—right of owner to improvements put on it by others. It seems, if a stranger builds upon the land of another, supposing it to be his own, and the owner of -the land remains willfully passive, equity will not allow him to profit by the mistake; but if the stranger knows that the land upon which he is building does not belong to him, then the owner of the land may assert his legal rights and take the benefit of the expenditure.</p> <p>4. Same—right of land owner on condemnation for right of way to claim for road structure previously made. Where it was alleged in a petition for the appointment of commissioners to condemn land for right of way, that a railroad had been previously constructed on the same land sought to be taken, with the owner’s consent, which was not denied in the pleadings, it was held that in the assessment of damages the land owner was not entitled to the value of the road structure as a part of his land.</p> <p>5. Bight oe way—governed by law under which the proceeding is commenced. Where land was taken by the exercise of the right of eminent domain, and the proceeding commenced to have compensation ascertained before the act of 1873, on that subject,