Reed v. Ohio & Mississippi Railway Co.

Citations

• 126 Ill. 48
• 17 N.E. 807

Syllabus

<p>1. Eminent domain—power to be strictly pursued. The taking of private property by the exercise of the right of eminent domain is in derogation of common right, and the grant of power for its exercise must be strictly followed.</p> <p>2. Same—when the power may be exercised—parties unable to agree as to compensation. The right to condemn land for railway purposes is given by the statute only when the compensation to be paid for or in respect of the property sought or damaged can not be agreed upon by the parties interested, unless the owner is incapable of consenting, or his name and residence are unknown, or he be a non-resident of the State.</p> <p>3. Same—requisites of petition—to show an inability to agree. The averments in a petition to condemn land for a public use need not be in the language of the statute, but any allegation showing affirmatively that the petitioner has been unable to agree with the owner in respect of the compensation to be paid, will suffice.</p> <p>i. Where the petition fails to show an inability -to agree with the land owner as to the compensation to be paid, and it does not appear that any effort was made to purchase or agree on the compensation or price to be paid for the land sought to be taken, it will be insufficient to. give the court jurisdiction, or to entitle the petitioner to the right of condemnation.</p> <p>5. Same—burden of proof—to establish right—of the pleadings. In a proceeding to condemn land, by a railway company, for the purpose of taking materials therefrom, no other pleading is required than the petition. If, however, an answer is filed, it will neither enlarge nor restrict the burden cast by law upon the company to make such a case as clearly entitles it to take and appropriate the land sought.</p> <p>6. Same—measwre of compensation—as to the uses to which the land is adapted. On a proceeding to condemn land by a railway company, the defendant asked the court to instruct the jury that the compensation to be paid