O'Hare v. Chicago, Madison & Northern Railroad

Citations

• 139 Ill. 151
• 28 N.E. 923

Syllabus

<p>1. Eminent domain—jurisdictional facts to be shown in petition in condemnation proceedings. The conditions to the right of a railway -company to exercise the power of eminent domain are, its corporate •existence under the laws of this State, and the fact that it has located' its railway over the land sought, and that it has been unable to agree with the owner, if the owner is competent to contract, upon the compensation to be paid therefor; and these are jurisdictional facts, which must be shown by the petition.</p> <p>2. Same—proof of allegations of petition. While no formal pleadings ■after the petition are proper or allowable, yet if the land owner traverses the material allegations of the petition,—that is, those averments necessary to confer jurisdiction,—the court must determine their truth -or falsity, and whether the facts exist warranting the appropriation of the land for the particular public use proposed, and that the use is a public one. The necessity exists, in all such cases, for the petitioner •to introduce such evidence as will, prima facie, at least, prove the disputed allegations of the petition.</p> <p>3. Same—traversing allegations of petition for condemnation. While -this court has held that no answer or other formal pleading is required •of the defendant, or even allowable, it was not thereby intended to hold that the averments of the petition can not be traversed, or that .such averments are conclusive upon the land owner.</p> <p>4. Same—jurisdictional facts determined by the court. As the jurisdictional facts must exist to authorize such ascertainment by a jury, it follows that the court should, preliminary to the finding by the jury, •determine that the right to condemn in the particular case exists, if -the necessary facts do not exist, the petition should be dismissed; but if they are found by the court to exist, a jury should be impaneled to fix the just compensation. These preliminary questions are to be de-termined summarily by the c