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Illinois Power Co. v. Miller

SEPTEMBER 10, 1956.

ILLINOIS POWER COMPANY, PLAINTIFF-APPELLEE,

v.

VETRICE E. MILLER, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Vermilion county; the Hon. JOHN F. SPIVEY, Judge, presiding. Affirmed.

PRESIDING JUSTICE REYNOLDS DELIVERED THE OPINION OF THE COURT.

This case arises out of the construction, operation and maintenance of a 138 KV. electric transmission line by the Illinois Power Company, in Vermilion County and Champaign County. The Illinois Commerce Commission authorized the construction of the line and the power company began the acquisition of the right-of-way for the line, either by consent easements or by condemnation. The power company did not seek title to the land needed, but only a perpetual easement over a strip of land 50 feet in width, with the right of access for maintenance and operation. For condemnation purposes and possibly for identification, the tracts were numbered. Only three tracts are involved on appeal, namely Tracts Nos. 10, 11 and 14. Tract No. 13 was involved in the trial in the Circuit Court, but is not involved in this appeal.

The power company secured an easement for Tract No. 10, but was unable to secure easements from the owners of Tracts Nos. 11 and 14, and condemnation proceedings were instituted in the Circuit Court of Vermilion County against Vetrice E. Miller, and James Miller, as owners of Tract No. 11, and against the Equitable Life Assurance Company, as mortgagee; against Mary Illk, Glenn Illk and Gladys Illk, as owners of Tract No. 14. The condemnation suit proceeded to trial and condemnation was ordered and the jury awarded compensation to Vetrice and James E. Miller as to Tract No. 11 and to Glenn Illk, Mary Illk and Gladys Illk, as to Tract No. 14 for land occupied by the poles of the power company, use of the right-of-way strip, and for damages to the lands of said owners. The jury awarded compensation to Vetrice Miller and James E. Miller in the amount of $1,751.01 and the sum of $648.91 to Mary, Gladys and Glenn Illk. The amount of the judgment was paid by the power company to the County Treasurer and the money was in turn paid by the Treasurer to the Millers and the Illks.

Later, when the power company began the construction of its transmission line, Wendell Miller, claiming to be a tenant on Tracts Nos. 10 and 11, and Harold Long, claiming to be a tenant on Tract No. 14, refused it permission to erect the line.

The power company then instituted the present suit, which prayed for a declaratory judgment and injunction against Vetrice E. Miller, James E. Miller, Wendell Miller, Howard Richter, Glenn Illk, Gladys Illk, Mary Illk, Frank Hayes, Harold Long, Percy E. Stephens, Ruth Stephens, and D.E. Hager. In the alternative the power company prayed condemnation under the Eminent Domain Law and judgment against the tenant defendants, and for judgment over against the owner defendants, for the amount of any award returned by a jury in favor of the tenant defendants. The court overruled motions to strike and dismiss the complaint and upon trial without a jury rendered a declaratory judgment and decree in favor of the plaintiff against all defendants for the declaratory relief prayed. Seven of the defendants, namely Vetrice E. Miller, James E. Miller, Wendell Miller, Harold Long, Glenn Illk, Gladys Illk and Mary Illk have prayed an appeal to this court.

For the purposes of this appeal it is not necessary to discuss any matters concerning those defendants who did not appeal, namely Howard Richter, Frank Hayes, Percy E. Stephens, Ruth Stephens and D.E. Hager.

In reciting the facts as they appeared in evidence, it is best to discuss each tract separately.

Tract No. 10.

This tract was owned by Willis E. Penfield and Marshall G. Penfield and was managed by the Second National Bank of Danville, Illinois. The land was an 80 acre tract, and no one resided on it. Elmer Smith, farm manager for the Second National Bank of Danville, testified that he managed the Penfield land; that he leased the land to J.E. Miller by written lease in 1949 for a term from March 1, 1949 to February 28, 1950; that after the expiration of that lease, J.E. Miller, who is the same James E. Miller, who resides on and is part owner of Tract No. 11, continued on as a tenant on a year to year basis until January 5, 1955, when another written lease was entered into between Smith, as manager, and James E. Miller as tenant, this second lease to run from March 1, 1955 to February 28, 1956. Wendell Miller, son of James E. Miller and Vetrice E. Miller, also claimed to be a tenant on the Penfield land, but there was no testimony as to a lease between Wendell Miller and the bank. It was Wendell Miller who refused permission to the power company to erect the line across the Penfield land. If Wendell Miller had any lease or was a tenant on the Penfield land it was as a sub-lessee of his father and was oral.

Tract No. 11.

This tract was owned by Vetrice E. Miller and James E. Miller as owners of record. There was a mortgage to The Equitable Life Assurance Society of the United States. This tract was a compact farm of 320 acres. Wendell Miller lived on the farm, and claimed to be a tenant but there was no written lease agreement between himself and his parents.

Tract No. 14.

This tract was a 96 acre farm which was part of a larger, compact farm of 268 acres. It was owned by Mary Illk, Glenn Illk and Gladys Illk, as owners of record. No one lived on the 96 acre tract, but Harold Long claimed he had a written lease to farm the land for three years, the lease expiring March 1956.

None of the leases were a matter of record, and the power company in the original condemnation proceeding proceeded ...


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