Ohio & Mississippi Railway Co. v. Barker

Illinois Supreme Court

Ohio & Mississippi Railway Co. v. Barker

25 N.E. 785, 134 Ill. 470, 1890 Ill. LEXIS 988

DecidedNovember 5, 1890

StatusPublished

This text of 25 N.E. 785 (Ohio & Mississippi Railway Co. v. Barker) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ohio & Mississippi Railway Co. v. Barker, 25 N.E. 785, 134 Ill. 470, 1890 Ill. LEXIS 988 (Ill. 1890).

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Opinion

Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This case was before us at a former term, and will be found reported as Ohio and Mississippi Ry. Co. v. Barker et al. 125 Ill. 303. A new trial was taken under the statute, and judgment was rendered by the circuit court, upon that trial as upon the former one, in favor of the plaintiff, and the case is again before us by the appeal of the defendant.

In our opinion, the present record differs in no material respect from the record before us when the case was here before, except that upon the last trial, what purported to be the record of condemnation of the property in controversy was offered in evidence, but rejected by the court,—and this ruling presents the only question to which we think it necessary to direct our attention.

The condemnation proceedings were intended to be pursuant to the provisions of the act relating to the condemnation of right of way, approved June 22, 1852. (Laws of 1852, p. 146, et seq.) The second section of that act required the appointment of three commissioners to fix compensation and assess damages, etc.; and the fifth section of the act required that the commissioners appointed should be sworn, and then meet at a time and place fixed by the court or judge, “and proceed without delay, upon view and inspection of the premises, as well as upon hearing the allegations and testimony of the parties interested, to fix the compensation to be made to each party or owner of lands, etc., and to also estimate and assess the damages sustained,” etc. In the event the commissioners should be unable to agree, the estimate and assessment of any two of them would, doubtless, be sufficient; but they must all qualify, and meet and hear the evidence, and endeavor to agree and decide; (Board of Comrs. v. Lansing, 45 N. Y. 19;) and the record failing to show a compliance with the statute in this respect, the order is a nullity. People v. Williams, 46 N. Y. 441; People v. Hynds, 30 id. 470.

The record offered in evidence show's the appointment of Henry G. Miner, Wesley Gelchin and Edward Fender as commissioners to make .estimates and assess damages. Miner and Gelchin only were sworn to discharge the duties o'f commissioners, and the report is signed only by Miner, and also ¡by one Holden. Even if we shall assume that the name “Holden” is written by mistake, and that “Gelchin” was intended, (as to which there is no evidence,) the report is not signed by “Fender,” and the record fails to show that he was ever sworn to act as a commissioner, or that he ever did act as such. The record is therefore insufficient to divest title, and it was properly excluded as evidence by the court.

The judgment is affirmed.

Judgment affirmed.

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Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This case was before us at a former term, and will be found reported as Ohio and Mississippi Ry. Co. v. Barker et al. 125 Ill. 303. A new trial was taken under the statute, and judgment was rendered by the circuit court, upon that trial as upon the former one, in favor of the plaintiff, and the case is again before us by the appeal of the defendant.

In our opinion, the present record differs in no material respect from the record before us when the case was here before, except that upon the last trial, what purported to be the record of condemnation of the property in controversy was offered in evidence, but rejected by the court,—and this ruling presents the only question to which we think it necessary to direct our attention.

The condemnation proceedings were intended to be pursuant to the provisions of the act relating to the condemnation of right of way, approved June 22, 1852. (Laws of 1852, p. 146, et seq.) The second section of that act required the appointment of three commissioners to fix compensation and assess damages, etc.; and the fifth section of the act required that the commissioners appointed should be sworn, and then meet at a time and place fixed by the court or judge, “and proceed without delay, upon view and inspection of the premises, as well as upon hearing the allegations and testimony of the parties interested, to fix the compensation to be made to each party or owner of lands, etc., and to also estimate and assess the damages sustained,” etc. In the event the commissioners should be unable to agree, the estimate and assessment of any two of them would, doubtless, be sufficient; but they must all qualify, and meet and hear the evidence, and endeavor to agree and decide; (Board of Comrs. v. Lansing, 45 N. Y. 19;) and the record failing to show a compliance with the statute in this respect, the order is a nullity. People v. Williams, 46 N. Y. 441; People v. Hynds, 30 id. 470.

The record offered in evidence show's the appointment of Henry G. Miner, Wesley Gelchin and Edward Fender as commissioners to make .estimates and assess damages. Miner and Gelchin only were sworn to discharge the duties o'f commissioners, and the report is signed only by Miner, and also ¡by one Holden. Even if we shall assume that the name “Holden” is written by mistake, and that “Gelchin” was intended, (as to which there is no evidence,) the report is not signed by “Fender,” and the record fails to show that he was ever sworn to act as a commissioner, or that he ever did act as such. The record is therefore insufficient to divest title, and it was properly excluded as evidence by the court.

The judgment is affirmed.

Judgment affirmed.

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Bluebook (online)

25 N.E. 785, 134 Ill. 470, 1890 Ill. LEXIS 988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-mississippi-railway-co-v-barker-ill-1890.

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