Lieberman v. Chicago & South Side Rapid Transit Railroad

Citations

• 141 Ill. 140
• 30 N.E. 544

Syllabus

<p>1. Eminent domain—essential averments in petition to condemn, to-give jurisdiction. An averment in the petition by a railway company to condemn land for a right of way, either that the compensation to be paid for or in respect to the property sought to be taken or damaged, can not be agreed on by the parties, or that the owner of the property is incapable of consenting, or his name or residence is unknown, or that he is a non-resident, is jurisdictional.</p> <p>2. Same—right of property owner to contest petitioner’s right to condemn. The property holder has the right to contest the petitioner’s, right to condemn, and when he does so, the burden is thrown upon-the latter to maintain its right by proper proofs. But when the defendant fails to make such contest, the right to condemn will be admitted, leaving the amount of compensation or damages to be awarded the-only matter in controversy.</p> <p>3. Same—right to condemn, a question for the court, before impaneling the jury. The question of the right to condemn land for a public use is preliminary, and is for the court to determine before the impaneling of a jury to fix the compensation or damages.</p> <p>4. Same—waiver of contest of right to condemn. Where the land owner appears, and consents to the selection of the jury, and contests the case on the merits, he will waive all contest as to the right to condemn.</p> <p>5. Same—effect of stipulation of railroad company limiting'the uses-of the property. Where a railway company has a general discretion to-construct and operate a railroad in a city, property owners whose property will be damaged thereby will have the right to have their damages, estimated with reference to any use the petitioner, under its charter, may see fit to apply its railroad when built. But the railway company, having such unlimited power, may, by stipulation, duly authorized, restrict itself as to the purposes of the road, the character of its machinery and appliances, and the fuel to be used,