APPEAL from the Circuit Court of Gallatin County; the Hon.
CHARLES L. RANDOLPH, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
In March of 1956, petitioner was authorized by the Illinois Commerce Commission to construct, operate and maintain a 69-kilowatt electrical transmission line within Gallatin County. Pursuant thereto it filed a petition under the Eminent Domain Act in the circuit court of Gallatin County. From the trial court's judgment upon the verdict of the jury assessing damages, petitioner appeals directly to this court under section 12 of that statute.
Throughout the litigation, the lands for which damages were to be assessed were described by reference to parcel numbers corresponding to the numbers used in the original petition to designate separately owned segments of the strip over which the transmission line would be erected. The petition alleged no ownership, rights, or damage to any land outside this strip.
The verdict of the jury as to each such parcel was divided into three parts. At petitioner's request, the jury was instructed to assess damages for the land in each parcel actually taken for the poles, guys, and anchors required for the erection of the transmission line. Petitioner requested and obtained a separate assessment of damages for the use of several parcels described in the petition excluding the actual sites of the poles, guys, and anchor logs.
At the request of the defendants, the jury was also instructed to assess damages to other land, apparently contiguous to the strips described in the petition and purportedly also owned by the defendants. As to lands apparently adjoining each parcel, the jury, at the defendants' request, was directed to return a verdict in the following form:
"We, the jury, find that the Defendant ____ land outside parcel No. ____ will be damaged, and we assess for damages to the land of the Defendant outside parcel No. ____ the sum of $ ____"
As to each such verdict, in the first blank the court inserted the name of the party designated in the petition as the owner of one of the segments of the strip over which the line would be erected. The corresponding parcel number was also inserted by the court in each case. The amount of the damages was then supplied by the jury.
Petitioner limits its appeal to judgments relative to ten of the parcels, and as to each such parcel, petitioner complains that the verdicts are excessive; that the jury ignored the testimony of petitioner's witnesses; that the defendants' witnesses were permitted to base opinions as to damage upon improper elements; that improper rulings on evidence and instructions contributed to the excessive verdicts; that no proper cross petition was filed to give the court jurisdiction to assess damages to lands not described in the petition; and that defendants failed to sustain their burden of showing damages to lands not described in the petition.
The verdict of a jury in condemnation proceedings cannot ordinarily be sustained where the damages allowed do not fall within the range of the values testified to by the witnesses. (Forest Preserve District v. Folta, 377 Ill. 158; Peoria Gas Light and Coke Co. v. Peoria Terminal Railway Co. 146 Ill. 372.) This situation exists as to certain parcels involved in the appeal. As to others, it appears that the jury did, in fact, ignore the testimony of petitioner's witnesses, and returned verdicts in amounts which, in the light of the record before us, we consider excessive.
As to the property referred to as parcel 1, the petitioner's witnesses testified that the damage to the parcel, exclusive of that area taken for poles, guys and anchors, amounted to a maximum of $425. Defense testimony as to the same parcel covered a range of damages of from $2,550 to $2,775. The jury awarded damages in the sum of $1,850. While we do not express an opinion as to the damages which might properly be assessed here, we cannot but note that one of the defense witnesses who testified to damages of $2,775 thus testified to a figure several hundred dollars in excess of the value of the parcel as given by him. Nor can we overlook the fact that the other witness who testified regarding damages to that portion of parcel 1, exclusive of land actually occupied by poles, guys, and anchors, set those damages at a figure only a few dollars less than the value of the land as testified to by him. As to the latter, the witness further testified that the land would be worth but 30 cents following the installation of the electrical lines.
As to the parcels referred to in the petition as parcels 8, 10, 11, 13, 14 and 15, the damages assessed by the jury exceeded the range of the figures testified to by the witnesses for both sides, and the judgments thereon cannot stand. The judgment as to lands taken in parcel I are also defective for the reasons noted.
With regard to damages awarded for lands within parcels 2, 16 and 17, we find that the verdicts are within the range of testimony.
Petitioner further complains that its instruction No. 24 was wrongfully refused by the court. We express no opinion as to the propriety of the instruction, but instead observe that the record discloses that petitioner originally tendered to the trial court instructions numbered I through 38, including forms of verdict. When the court sustained defendants' objection to instruction No. 24, plaintiff's counsel stated: "At this time we wish to substitute and offer Instructions 24-A and 24-B." These latter instructions had not theretofore been tendered, but were given with minor modifications not here material. We can only conclude that petitioner was equally satisfied that the jury be given either instruction No. 24 or ...