APPEAL from the Circuit Court of Pulaski County; the Hon.
ROBERT B. PORTER, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an action instituted in the circuit court of Pulaski County by the petitioner, Central Illinois Public Service Company (C.I.P.S.), to acquire a perpetual easement to construct, operate and maintain an electric transmission line across adjacent farmlands owned respectively by defendants Marion J. Badgley and Glenna Badgley and defendants Duard J. Badgley and Mildred Louise Badgley (referred to collectively as defendants). The defendants each filed a separate cross-petition claiming that their lands within the easement strip would be damaged. They also claimed damages to the remainder of their properties not within the easement strip. The petitioner admitted that the property within the easement strip would be damaged, but contested the amount. The petitioner denied that the land outside the easement strip would be damaged. The case was tried before a jury, which returned a verdict finding the just compensation to be paid Marion J. Badgley and Glenna Badgley for land occupied by the structures to be $1.80, the damages to the land not occupied by the structures but within the easement strip to be $1170, and damage to the remainder of their farm to be $1932. The jury also found the just compensation to be paid to Duard J. Badgley and Mildred Badgley for land occupied by the structures to be $1.80, the damages to land not occupied by the structures within the easement strip to be $2010, and the damage to the remainder of their farm to be $4536. Judgments were entered on the verdicts. The petitioner filed a post-trial motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court entered an order denying each of these motions and the petitioner appeals therefrom.
The issues raised in this appeal are whether the trial court committed prejudicial, reversible, error in (1) sustaining the defendants' objection, and by not allowing petitioner's engineer witness to testify and read into the evidence the "Engineer's Covenant," which set out the rights and type of easement sought by the petitioner, (2) not granting petitioner's post-trial motion for a new trial, because of counsel for defendants' improper and erroneous comments made during closing arguments, (3) refusing to give petitioner's jury instruction no. 10, and (4) not granting the petitioner a new trial, because there is no sufficient or substantial evidence to support the verdicts, which are against the manifest weight of the evidence.
We shall first address ourselves to petitioner's contention that the trial court erred in refusing to give petitioner's jury instruction no. 10. Petitioner's jury instruction no. 10, not contained in Illinois Pattern Jury Instructions (IPI), read as follows:
"In arriving at the damages to that part of the easement strips which are not occupied by structures, you should take into consideration the fact that the owners will have and retain all the uses of said easement strips not inconsistent with the right to construct, operate and maintain the said transmission line."
Supreme Court Rule 239(a) provides, in part that:
"* * * Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument." Ill. Rev. Stat. 1973, ch. 110A, par. 239(a).
In paragraph 5 of the petition for condemnation the petitioner set out the easement rights sought to be acquired. That paragraph contained, among other things the following provision,
"* * * the owners of said parcels shall have and retain all uses of said parcels not inconsistent with the easement * * *."
In view of the foregoing provision contained in the petition for condemnation and the fact that considerable emphasis was placed upon whether C.I.P.S. or the landowners would have the "superior right" or "superior use" of the easement strips, particularly by counsel for the defendants, the trial court should have instructed the jury concerning this matter.
The defendants contend, however, that the trial court properly refused to give such instruction since it was argumentative and abstract. Defendants assert that:
"It is argumentative because it states that defendants' will have certain rights not inconsistent with the rights of the petitioner, without setting out in detail the rights of each. It is abstract because it unduly emphasized the rights the defendants would have to the use of the easement."
No cases are cited in support of this argument.
• 1 We find petitioner's instruction no. 10 neither argumentative nor abstract, as claimed by the defendants. In addition we find said instruction to be simple, brief and substantially impartial. Having previously determined that this instruction concerned a matter "on which the jury should be instructed," we hold that the trial court erred in refusing to give petitioner's instruction no. 10. Compounding this error was the trial court's refusal to allow petitioner's engineer, J.G. Cors, to read into evidence petitioner's exhibit "5," referred to as the Engineer's Covenant," which also set forth the rights and type of easement sought to be acquired by the petitioner. More significant, however, is the fact that none of the other instructions adequately covered the matter contained in the refused instruction or otherwise mitigated the effect of this error. In view of these facts and since the correctness of these instructions was vital (Department of Public Works v. Bohne, 415 Ill. 253, 113 N.E.2d 319), we hold ...