Volume 149 — Illinois Reports

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.</p>

This was a petition filed in this court to test the validity of the act of 1893, relating to fees and salaries. The facts appear in the opinion of the court.

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Francis M. Weight, Judge, presiding.</p>

O. H. Horton, Judge, -presiding. October 12, 1882, William James joined by his wife, executed a trust deed upon the lots in controversy, with others, to Frank B. Chandler, to secure the payment of two notes of $4000 each.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George H. Kettelle, Judge, presiding.</p>

Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.

<p>Appeal from the Circuit Court of DuPage county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. NEGLIGENCE—escape of fire from passing locomotive—evidence of negligence. By the act of March 29, 1869, relating to fires caused by locomotives, the mere fact that the fire is communicated from the locomotive is made “full prima facie evidence” to charge a railroad company with negligence.</p> <p>2. Same—whether presumption of negligence is rebutted, is a question of fact. The question whether the defendant’s evidence is sufficient to rebut the prima facie, proof of negligence arising from the fact that fire was communicated from the engine, is clearly one of fact, as to which the judgment of the Appellate Court is conclusive.</p> <p>3. Same—allowing fire to escape from a locomotive—evidence of negligence. In an action against a railway company to recover damages for negligence in allowing fire to escape from a locomotive, the court, at the request of the plaintiff, instructed the jury, that if they believed, from the evidence, that the fire in question was communicated from the engine "then in the care and management of the defendant, while-upon and passing along the railroad in question, whereby the plaintiff’s, property was injured, “then the fact that said fire was so communicated is full prima facie evidence to charge the defendant with negligence on account of the condition of said engine, or the manner in which said engine was operated at the time said fire was so communicated Held, that the instruction stated correctly the rule of law established by the act of 1869.</p> <p>4. Same—instruction as to negligence in allowing fire to escape. In-such a case, the plaintiff is not required to insert in the instruction a. statement of the facts which defendant’s evidence tended to prove, and which, if proved, would have had the effect of rebutting the prima facie case of negligence, and have the jury instructed that the plaintiff’s prima f acie case might thus be overcome.</p> <p>5. All the plaintiff is bound to do in such an action is to make out a prima facie case, and that case, unless met by proof sufficient to rebut it, will entitle him to a verdict. It is for the defendant to present his or its defense, both by evidence and instructions to the jury; and if there is danger that the jury may overlook or misapprehend the force of the evidence given in defense, it is for the defendant to guard against such result by submitting proper instructions to be given in his own behalf.</p> <p>6. Be Ah estate—fruit trees, etc., apart of the freehold. Fruit-trees, berry bushes, etc., standing and growing upon land, are, at least as. between the owner of the land and a mere tort feasor, real property and a part of the freehold, and an allegation of a tortious injury to or destruction of such growing trees or bushes is, ex vi termini, an allegation of an injury to the freehold.</p> <p>7. Evidence — admissibility under the pleading — variance. In an action by a land owner against a railway company to recover damages from a fire caused by the emission of sparks from a passing engine, the declaration alleged the destruction of plaintiff’s fruit trees on the land, and the'plaintiff was allowed to prove the value of his land before • and after the fire, which was objected to as variant from the allegations of the declaration: Held, that the evidence was properly admitted.</p> <p>8. Measube oe damages—in an action for an injury to land by burn- ■ ing and destroying fruit trees, etc. In an action by a land owner against a railroad company to recover damages for the burning and destruction of fruit trees and bushes growing on the land, the court, by an instruc- ■ tion, held that the iheasure of damages was the difference in value of the land before and after the fire, and stated that in determining its ■ value before the fire the jury might take into consideration the character of the soil, its state of cultivation, the kind and quality of the trees and fruits thereon, the age of the trees and fruit bushes, and the injury caused by the fire, if any, to the trees and bushes: Held, that, there was no error in the instruction.</p> <p>9. Same—whether excessive, a question of fact. The question of the amount of damages proved in an action for negligence is a question of fact, and the decision in respect thereto by the Appellate Court is conclusive on this court.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon, Henry B. Willis, Judge, presiding.</p>

M. F. Tuley, Judge, presiding. This was a bill in chancery, brought by John K. Joice and others, against J. Erwin McDowell and others, the… Held: and the proceedings of that meeting appear sufficiently in the following circular of the treasurer of the association sent to the several members : • “ ‘Cook County Land Investment Co., Room 70, 159 LaSalle Street. “ ‘At a meeting of the managers of the Cook County Land Investment Company, held at 7:30 P. M., January 14, the…

<p>Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jacob Fours, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. S. P. McConnell, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook, county; the Hon. E. S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Kane county; thé Hon. Isaac G. Wilson, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

<p>1. Deed—delivery—how shown. A deed may be delivered by words without acts, or by acts without words, or by both acts and words; and after the deed has been signed, sealed and acknowledged, any acts or words which clearly manifest an intention to consummate and complete it, and to part absolutely and unconditionally with it and all control over it, are sufficient to give legal existence to it as a deed, and to constitute a sufficient delivery.</p> <p>2. Where the delivery of a deed is denied by the grantees therein, and the witnesses called to prove a delivery fail to testify to any acts or words amounting to a delivery, their general statement that the instrument was delivered will be regarded as a mere legal conclusion -on their part, rather than the statement of a fact, and therefore incom'= petent, and can not be considered on the question of delivery.</p> <p>3. Same-—wrongful delivery of deeds left in escrow. Where deeds and papers are made out, sealed and acknowledged for the exchange -of real estate, and are left in escrow with the clerk of an agent of one of the parties, to hold until a certain release of a mortgage is procured -and another incumbrance is reduced to a certain amount, and then to be delivered to the respective parties, the deeds so deposited will not become operative until the execution and delivery of the releases of the mortgages or the performance of the conditions upon which they are to be delivered, or the acceptance of the deeds by the grantee.</p> <p>4. Until perf ormanoe of the conditions upon which deeds are placed in escrow, the depositary will have no authority to part with them or to assume to deliver them to the grantees therein named. And when the agent of one of the parties obtains possession of the deeds before the conditions are performed, this act will be fraudulent and tortious, and no rights will pass by the delivery of such deeds or their tender.</p> <p>5. Same—delivery by one having no right to same. Where a deed for land is placed in escrow, not to be delivered until the grantee therein performs a certain condition, and the agent of the grantee, before such performance, gets such deed from the custodian and gives the same to the grantee, the attempted delivery will be an unauthorized and void act, and the deed will pass no title.</p> <p>6. Same—lender of copy. Where a deed left in escrow, to be delivered only upon the performance of a condition, is lost, no valid delivery or tender can be made. An effectual tender can only be made of the original deed.</p> <p>7. Contract—-for the exchange of lands—gross and unreasonable delay of performance. Where time is not originally of the essence of a. contract for the sale or exchange of lands, but one party has been guilty of gross, vexatious, unreasonable or unnecessary delay or default in relation to it, the other party becomes entitled, by notice, to limit a. reasonable time within which the contract shall be performed by the other, and in default of obedience of such notice the court will not enforce its specific performance, but will leave the parties to their strictly legal rights.</p> <p>8. Same—limiting time of performance by notice. A verbal contract for the exchange of land provided that A should convey to B four houses- and lots, subject to a mortgage of $2500 on the same and another lot, and that B should convey to A thirteen lots, upon four of which was a. mortgage, which B was to have released as to one of the lots and reduced to $1500 on the other lots, and B was to procure a release of A’s-mortgage on the lot of A included in the first named mortgage. 0, the agent of B, had the parties interested come to his office to execute the deeds, which was done, but B failing to procure the releases of the-mortgage as agreed, A objected to the delivery of her deed, when, by agreement, the several deeds were left with D, a clerk of C, to be held in escrow until the proper releases should be procured by B. After repeated efforts by A to have the contract carried out, A, through her agent, notified the agent of B that unless the releases were made and delivered within twenty-four hours, A would rescind the contract. No objection was made, at the time, that the notice fixed so short a time. 0, the agent of B, obtained possession of the deeds and papers and tendered to A her deed for the lots, but did not tender any release of the mortgage, and delivered A’s deed to B, which was placed on record. A then filed her bill to cancel the deed to B as a cloud on her title, and B, pending the hearing, tendered A the releases and a copy of the deed from B, the original of which was lost: Held, that A was entitled to the relief sought.</p> <p>9. Same—of performance where time is not of the essence of. Where deeds for the exchange of lots are placed in escrow, to be delivered! only on performance of a condition by one of the parties to procure-the release of certain mortgages, but no time is fixed for the execution of the releases, they, by implication of law, must be executed and delivered within a reasonable time.</p> <p>10. And when the party has had ample time in which to procure the releases, the other party may, by notice, fix a reasonable time in which to perform the contract, after which he may declare the contract forfeited, though time is not made of the essence of the contract.</p> <p>11. Where the notice requires performance by the end of the nesfe day, and no objection is made as to the inadequacy of the time allowed, and a tender is made which proves ineffectual on other grounds, the notice will be sufficient.</p>

Philip Stein, Judge, presiding. This was a bill in equity, brought by Abraham Sternheim, against Henry E. Burcky and William E. Burcky and others, for the partition of a certain lot or tract of land in Cook county.

Henry M. Shepard, Judge, presiding. The facts shown by this record are, substantially, that about October 1, 1890, the appellant employed the defendant Ryder, of Nichol & Ryder, real estate agents, to sell the real estate in question, and authorized a sale for $375 per acre. Ryder answered an advertisement in the Chicago Tribune, November 9, 1890, and on November 10, as a result, had an interview ■with Hartman & Carey, also real estate agents.

<p>1. Special taxation—adopting ordinance after making the improvement. Under the act approved April 13, 1875, entitled “An act to provide additional means for the construction of sidewalks in cities, towns and villages,” a special tax can not be levied and collected to pay for a sidewalk by virtue of an ordinance adopted after the walk has been built.</p> <p>2. Local impbovement—re-assessment—payment of contractor. By the act of 1875, relating to sidewalks, no re-assessment is provided for, .and there is no provision for letting the contract for .a local improvement and confining the contractor to the assessment for payment, as under article 9 of the City and Village act.</p> <p>3. Same—publication of ordinance. An ordinance under the act of 1875, not published as therein provided, can not form the basis of a proceeding to levy and collect a special tax for the payment of the cost of building a sidewalk.</p>

<p>1. Judgment—amending after adjournment of term. It is a well settled rule that after a term has expired a court has no authority to set aside a judgment, orto amend it except in matters of form and for the purpose of correcting clerical errors. It is also a general rule that amendments of the record will not be allowed after the close of the term at which the record was made, unless there are some memoranda, minutes or notes of the judge, or something appearing on the records or files to amend by, and notice should be given of an amendment in a matter o.f form.</p> <p>2. Same—void for want of jurisdiction. Where an order allowing a material amendment in the record is entered at a subsequent term without notice to the adverse party, the court entering such order is without jurisdiction) and such order can be assailed in a collateral as well as in a direct proceeding.</p> <p>3. Eminent domain—when judgment is final. A judgment of condemnation of land for public use is conditional, as not working a condemnation until the compensation awarded is paid', and the municipality prosecuting the proceeding has a right to abandon the improvement. But the judgment of condemnation is a final one as to the amount of the compensation awarded, unless appealed from.</p> <p>4. Same—amending record—after expiration of the term. The act of 1891, amending section 53 of article 9'of the City and Village act, which authorizes the dismissal of a proceeding to condemn when the compensation awarded is not paid within two years, does not authorize the alteration or amendment of the record after the expiration of the term at which it was rendered.</p> <p>5. The verdict of the jury in a condemnation proceeding can not be changed, in the absence of the jury, after their discharge, and after the expiration of the term at which their verdict was rendered. The general rule is, that if the jury has been allowed to finally separate, the jurors can not be again re-assembled an,d their verdict corrected by them.</p> <p>6. In a proceeding to condemn a strip of land for the purpose of widening a street, the verdict of the jury made two awards to the owners of a certain part of the land, upon which judgment was entered. At a subsequent term, the court, on motion of the city, and without notice to any one, set aside the judgment, and amended the award of the jury so as to make one award apply to the north half of the strip and the other to the south half: Held, that the amendment was not one of mere form, and that the court had no power to allow the same after the lapse of a term.</p> <p>7. Same—right to award of jury—changing verdict. A party whose land is sought to be taken for public use is entitled to just compensation, to be ascertained by a jury. When the court sets ¿side the judgment based upon the verdict of a jury, and changes the verdict in a material way without the consent of the jury or the owner, the verdict, as amended, will be void, and can not form the basis of a judgment that will be binding.</p> <p>8. A proceeding by special assessment to raise money to pay the compensation and damages awarded for property taken or damaged by a city for a local improvement is based upon an award of compensation, which must be a valid and legal one, and must have been made in the mode and by the tribunal authorized to make it by the constitution and the law.</p>

<p>Appeal from the County Court of Cook county; the Hon. C. H. Donnelly, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p> <p>On August 1, 1889f the city of Chicago adopted two ordinances, one purporting to provide for the widening of a portion of Archer avenue, in said city, by condemning land one hundred feet in width, south of the south line of said avenue, and the other for permitting railroad companies, under certain conditions and regulations therein prescribed, to occupy the old portion of the avenue, and thirty feet in width of the said one hundred feet, for their tracks, etc. These ordinances, or so much of them as becomes material here, are set out in Ligare v. Chicago, 139 Ill. 46, together with a plat of the locus in quo, to which reference is made.</p> <p>Appellant occupied, under a lease from the estate of William B. Ogden, deceased, for a term of years, lots 16, 17 and 18, block 3, in South Branch addition to Chicago, said premises lying on the north side of said avenue and immediately east of and adjacent to Ogden slip. On July 12, 1890, appellant filed his bill in the circuit court of Cook county, alleging his leasehold interest; the dedication of said avenue, etc., as a highway, by the original proprietor, William B. Ogden; the great amount expended and incurred by complainant in fitting the premises for coal and fuel yards, and in and about'his business thereon of wholesale and retail dealer in fuels, etc., and the irreparable injury he will sustain if said ordinances are carried into effect; alleges that said ordinances are, in effect, a vacation of Archer avenue between the points therein' named and in front of said lots, and that by reason of such vacation the public easement is destroyed, and that the portion of the avenue so alleged to be vacated, reverted to complainant’s lessor, and that the north half thereof, during the remainder of his term, became the property of the complainant, and which the railroad companies, under said ordinances, can not deprive him of and lay tracks thereon without first condemning said land and making compensation therefor; prays injunction restraining the railroad companies from entering upon said land and laying tracks thereon, and the city from licensing or permitting the same to be done, unless complainant is first compensated, etc.</p> <p>Answer to the bill was filed, the particular averments of which need not be set out, and the cause was set down forbearing, and heard on bill and answer, affidavits filed, and documentary proofs, and a decree entered dismissing the bill for want of equity, without prejudice to an action at law. On appeal to the Appellate Court this decree was affirmed, and appellant prosecutes this further appeal.</p>

Frank Baker, Judge, presiding. Appellee brought suit on a policy of insurance issued by appellant, and recovered a judgment in the circuit court of Cook county for §1135, which was affirmed on appeal to the Appellate Court for the First District. An appeal is now prosecuted to this court.

<p>Appeal from the County Court of Cook county; the Hon. Frame Scales, Judge, presiding.</p> <p>This was a proceeding to confirm a special assessment upon the property of appellee and others, for local improvement of the street upon which the property was situated. The objectors appeared in the county court and filed objections, which, among other questions raised, deny the power of the city to make the assessment for the purposes designated in the ordinance; The ordinance provided that the roadway of certain named streets, between specified points thereon, should be sprinkled with water four times a day during the period commencing April 15, 1893, and ending November 15, 1893, the first sprinkling, each day, to be completed before 9 o’clock A. M., the second between 9 A. M, and 12 M., the third between 12 M. and 3 :30 P. M., and the fourth between 3 :30 P. M. and 6 P. M., there being at least an hour’s time between .the sprinklings of any street. The ordinance then provides for the manner of sprinkling, and that it sliall be at the rate of at least one gallon for every forty square feet of roadway, the work to be done under the superintendent of public works. Section 2 of the ordinance provides that said improvement shall be paid for by special assessment upon property benefited, in accordance with article 9 of the Cities and Villages act. Section 3 appoints commissioners to make an estimate of the cost of said improvement, including labor, materials, and all other expenses attending the same, and the cost of making and levying the assessment, etc. The commissioners appointed, returned an estimate as follows:</p> <p>Cost of the improvement - ..... . $12,000.80</p> <p>Inspection and superintending ...... 360.00</p> <p>Cost of making and levying assessment ... 370.00</p> <p>Total cost..........$12,730.80</p> <p>—Which was approved by the city council. A petition was filed in the county court for the appointment of commissioners to extend the assessment upon the property benefited. Commissioners were appointed who returned an assessment roll, apportioning said cost upon property by them deemed specially benefited by the proposed improvement. On motion of objectors the assessment was annulled by order of the court and the petition dismissed. The city appeals.</p>

<p>Appeal from the Appellate Court for the Fourth District heard in that court on appeal from the Circuit Court of Williamson county; the Hon. George W. Young, Judge, presiding.</p> <p>On the first day of December, 1887, the appellant insurance company issued its policy to appellees, insuring their dwelling house to the amount of $800, and their furniture, wearing apparel, books, piano, etc., in the sum of $400, against loss or damage by fire for the period of five years from noon of that day. The premium for the term was paid in advance. The building and its contents were burned in the afternoon of May 17,1890, during the continuance of said policy in force. The amount of the policy not having been paid, this suit was brought thereon October 3, 1890, in the ■circuit court of Williamson county. A trial resulted in verdict and judgment for the full amount of the policy, from which the company appealed to the Appellate Court, where the judgment was affirmed, and the insurance company, defendant, prosecutes this further appeal.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook-county; the Hon. S. P. McConnell, Judge, presiding.</p>

B. W. Gliffokd, Judge, presiding. On and prior to September 2, 1890, A. Weed & Co. were doing business at Ashland, Wisconsin, and that day delivered their check for $3000, drawn upon the appellee bank, to appellant, and took up a note owned by appellee, then due, against Hoxie & Mellor, theretofore sent to appellant by appellee for collection, and on which A. Weed & Co. were indorsers.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Adams, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—> heard in that court on appeal from the Circuit Court of Hancock county; the Hon. Oscar P. Bonhey, Judge, presiding.</p>

John J. Glenn, Judge, presiding. This was an action in debt, brought by appellee, Charles L. Jones, against appellant, the Chicago, Burlington and Quincy Bailroad Company, under the act of 1873, to recover penalties for alleged overcharges on shipments of live stock from points on appellant’s road in this State to the Union Stock Tards, Chicago. The suit was brought in the circuit court of Knox county, on October 17, 1882.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

Henry M. Shepard, Judge, presiding. This was a hill in chancery, filed by Michael C. Hayes, against William D. O’Brien and Fayette Thompson, in the Superior Court of Cook county, to enforce the specific performance of a contract for the conveyance of land situated in Lake county, and, as auxiliary to this relief, to enjoin O’Brien from the prosecution of a forcible entry and detainer proceeding, brought by O’Brien against the tenant of Hayes, before a justice of the peace of…

<p>Appeal from the Circuit Court of Fulton county; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the-Hon. M. F. Tulby, Judge, presiding.</p>

<p>1. Attorney and client — contracts between—fairness required. Dealings between attorney and client resulting in advantage to the former will be closely scrutinized, and the attorney will be required to show the utmost good faith and fairness, and that the client dealt with full knowledge of his rights. But the law does not prohibit all dealings between them, or declare all contracts made by the attorney with the client ipso facto void, or voidable at the instance of the client.</p> <p>2. Set-off—directions to the jury. On the trial of an action of assumpsit, in which the plaintiff sought to recover various items for legal services, and the defendant relied on a set-off consisting of various items, the court instructed the jury, that if they believed, from the evidence, that the defendant had proved the items in her set-off, then they should deduct from the claim of the plaintiff such sum as they might, from the evidence, believe had been proven. It was held, that such part of the instruction was substantially accurate.</p> <p>3. Evidence—degree of proof—requiring the jury to be “satisfied.” An instruction which leaves the jury at liberty to require, in their discretion, such proof as will “satisfy” them of the justice of the defendant’s claim, is clearly erroneous, but such error will not call for a reversal when it clearly appears that it could not have worked the defendant any injury.</p> <p>4. It has been repeatedly held by this court that the jury, in civil cases, are only required to believe from a preponderance of the evidence, and that to require them to be satisfied, imposes a higher degree of proof than the law requires.</p> <p>5. Practice—duty to modify instructions. It is not the duty of the court to amend or modify an instruction asked, which is'erroneous, so as to obviate the error in the same as asked.</p> <p>G. Appeals and writs of error—reviewing the facts. Where the judgment of the trial court is affirmed by the Appellate Court, and an appeal is taken to this court, no error of fact can be considered by this court, and only questions which arise upon the ruling of the trial court upon the admission of evidence and upon the instructions given and refused can be considered.</p>

M. F. Tuley, Judge, presiding. This action originated in the circuit court of Cook county, on a petition by appellee, against Kate M. Vandermark and others, including the above named appellants, to enforce a sub-contractor’s lien, under section 29, chapter 82, of the Revised Statutes. (2 Starr & Curtis, 1527.) Issues being joined, the cause was referred to a master to take the testimony and report the same to the court, with his conclusions on both the law and facts.

L. C. Collins, Judge, presiding. The following statement of the case will be sufficient: “Appellant filed its bill against appellee, setting forth that it is a judgment creditor of one Charles N. Trivess to the amount of over $2000; that execution has been issued upon the said judgment, and that said Trivess has no property or assets upon which the said execution can be levied; that the said Trivess, on the 17th day of October, 1890, made a general assignment for the benefit…

<p>1. Eminent domain—opening street across a railway track—measure of damages. Where a city, under paragraph 89 of section 1, of article 5, of the City and Village act, extends a street across railroad tracks or right of way, it does not condemn the land of the railroad company, nor prevent its use of the tracks and right of way. Hence the value of the land embraced within the crossing is not the measure of compensation for such interest as may be taken.</p> <p>2. The measure of compensation is the amount of decrease in the value of the use, for railroad purposes, caused by the use for the purposes of a street, such use for the purposes of a street being exercised jointly with the use of the companies for railroad purposes. In other words, the company is to be compensated for the diminution in its right to use its tracks caused by the existence and use of the street. The value of the land is not a legitimate element of compensation when a highway or street is laid across a railroad.</p> <p>3. So the market value of the land for sale at the termination of the existing use, and its market value for some other use to which it may be adapted, are also excluded. Hence it is not material whether the right of way is owned in fee by the railway company, or has been obtained by condemnation, so as to leave the fee in the former owner, as required by the present constitution.</p> <p>4. In a proceeding by a city to condemn for a street certain land used by a railway company for its right of way, there is no error in excluding testimony offered for the purpose of showing the general salable value of the right of way included in the crossing, or with its general value for other uses than that to which it is applied. This would be true if the measure of compensation was the value of the use of the right of way, as such.</p> <p>5. On a proceeding by a city to condemn a street crossing over a railroad right of way in the corporate limits, the court refused to admit testimony offered by the railway company that it would be necessary to construct gates, and plank the crossing, and employ a flagman, if the street should be opened: Held, that the evidence was properly refused.</p> <p>0. Same—measure of damages—uses and market value of property condemned. The rule that where land is condemned its value may be estimated, not only with reference to the uses to which it is actually applied, but also those to which it is adapted, is subject to the qu&lification that the latter uses must be those which enter into and affect its market value.</p> <p>7. It is also true that in estimating the compensation to the owner with reference to the uses for which the property is suitable, regard must be had to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. ,</p> <p>8. Where lands are restricted' by law, or by the terms of a grant, to a particular use, the measure of compensation, as a consideration to the owners for the lands taken, will be their value to him for the special use to which they are restricted. So when there can be no market value of land by reason of its use as part of an extensive business or enterprise, its value must be determined by the use to which it is applied.</p> <p>9. Same—measure of damages■—effect of remote possibilities. The possibility that a railroad company may cease to exist, by forfeiture of its charter or otherwise, is too remote to be used as thg basis of value in a proceeding to condemn. Nothing should be allowed for imaginary or speculative damages, and such remote or inappreciable damages' as the imagination may conjure up, and which may or may not occur in all the future, are to be excluded; nor can the owner show the probable future use of the property.</p> <p>10. Eailboad company—power to hold land. A railroad company can only acquire land, whether by voluntary purchase or otherwise, for railroad purposes, as defined in its charter. It does not hold land as does the ordinary owner, with the right of using it for any purpose to which it may be adapted, or with the right to sell it at the highest price which it may bring in the market.</p> <p>11. A railroad company’s capacity to acquire or hold lands is not general, like that of a natural person, but is limited to the uses of the railroad business. Being a creature of law it possesses only those powers which are conferred on it by its charter, either expressly, or incidentally, to the’ objects of its organization. When land is bought by a railway company and is used as a right of way, its future use must be for the same and no other purpose.</p> <p>12. Same—location of right of way—exhaustion of power. Where a railroad company has once exercised the power to determine the location of its road, that power is exhausted, and the company can not change the location, without legislative authority, after it has exercised its discretion as to the selection of the route of its road between certain fixed points.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

James A. Creighton, Judge, presiding. This was a bill in chancery for partition, brought by ap-' pellees, Mordecai Growl and wife, in the circuit court of Sangamon county, seeking construction of a will, and invoking the doctrine of election. Joseph Growl and Mary Ann Growl were married and had issue prior to 1844.

<p>1. Statutes—construction—the title. It is one of the cardinal principles of construction that the intention of the law-maker is to be found and given effect, and when there is otherwise doubt or obscurity in the act, or its meaning is doubtful, resort may be had to the title of the act to enable the court to discover the intent, and remove what might otherwise be uncertain or ambiguous.</p> <p>2. Under our constitutional provision, the legislature, in the enactment of laws, must prepare and adopt the title, to the end that it shall ■express the general subject of the act. Such title can not be resorted to to extend or restrain any positive provision in the body of the act itself.</p> <p>3. There may be included in an act, means which are reasonably adapted to secure the objects indicated by the title, without rendering the act void, under the constitutional inhibition. When the general purpose is declared in the title, the means for its accomplishment provided by the act will be presumed to be intended as a necessary incident.</p> <p>4. Tbade-mabks—statute constitutional. The act entitled “An act to protect associations, unions of workingmen and persons in their labels, trade-marks and forms of advertising,” is not in violation of section 13, article 4, of the constitution, which provides that "no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.”</p> <p>5. The act to protect associations, unions of workingmen and persons in their labels, trade-marks and forms of advertising, is not obnoxious to the constitution, (art. 4, sec. 22,) which prohibits the passage of local <or special laws and the granting of special privileges, etc.</p> <p>6. Same—whether lawful. To be a lawful trade-mark the emblem must avoid transgressing the rules of morality and public policy. A party may, without condemning or aspersing the product of other-manufacturers, commend the article he has for sale, or he may lawfully procure the certificate of others as to the quality of the article he places upon the market.</p> <p>7. A label to be attached to boxes of cigars read as follows: “This certifies that the cigars contained in'this box have been made by a first-class workman, a member of the Cigar Makers’ International Union of America, an organization opposed to inferior, rat-shop, coolie, prison or filthy tenement-house workmanship, lie therefore recommend these cigars to all smokers throughout the world,” etc., and signed by the president of the union : Held, that the label was not illegal.</p> <p>8. Evidence—proof of adoption of label—certificate of Secretary of State. In a prosecution for using a counterfeit or imitation of a label, trade-mark or form of advertisment of any person, union or association, knowing the same to be .a counterfeit, the certificate of the Secretary of State, under his hand and seal, issued in conformity with section 3 of the act of 1891, to protect associations, etc., in their labels, is sufficient proof of the adoption of such label, trade-mark or advertisement, and of the right to adopt the same.</p>

<p>The questions discussed in argument in these cases have been settled by decisions of this court already announced.</p>

<p>Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. Oscar P. Bonney, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Edward P. Vail, Judge, presiding.</p>

Cyrus Epler, Judge, presiding. On September 30, 1886, the appellant company issued its policy to appellee, insuring him against loss by fire to the extent of $3000, upon his dwelling house, for the term of five years. The house was destroyed by fire September 28,1889. Proof of loss was made, and the policy not having been paid, this suit was brought. By the terms of the policy the application ivas made part thereof.

<p>Appeal from, the Appellate Court for the First District;—• heard in that court on appeal from the Circuit Court of Cook county; the Hon. B. W. Clifford, Judge, presiding. -</p>

Francis M. Wright, Judge, presiding. This was ejectment, by appellee, against appellants, trustees, and the Indianapolis, Decatur and Western Bailroad Company, to recover a strip of land fifty feet wide off of the south side of the north-east quarter of section 36, township 16, north, range 5, east of the third principal meridian, in Piatt county.

<p>Appeal from the Circuit Court of Cook county; the Hon, Theodore Brentano, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon, B. D, Youngblood, Judge, presiding.</p>

<p>Appeal from 'the County Court of Champaign county; the Hon. C. C. Staley, Judge, presiding.</p>

<p>1. Streets—appropriation of part of its surface to private use. A private individual can not appropriate to his own exclusive use a portion of the surface of a street dedicated to the public use; and the dedication of a strip of land for a public street embraces not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil.</p> <p>2. Where a strip of land is declared a public highway, the adjoining owner has the right to light and air from it. The column of light and air above the road-bed, whether of land or water, is as much a part of the highway as the road-bed itself; and when cities and villages have been built up along a-publie highway, the right to light and air from it becomes vested, and even the legislature has no power to deprive such abutting owners of that right without making just compensation.</p> <p>3. Same—municipal control over streets and alleys. Clause 7 of section 62, chapter 24, relating to cities and villages, confers power on cities organized under the general Incorporation act to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, harbors and public grounds, and vacate the same. But there is nothing in any part of the general act which confers the power on the municipality to devote a street, or any part thereof, to a mere private use.</p> <p>4. Same—statutory dedication. Where the owner of land plats the same into lots, streets and alleys, in the manner required by law, there will be a statutory dedication of the streets and alleys, and the fee to the same will be vested in the city or village, in trust for the public, and for no other purpose.</p> <p>5. Same—enjoining construction of a bridge across a public alley— rights of owners of lots abutting on alley. Where the original proprietor of an addition to a city makes a plat thereof, dividing the land into blocks and lots, streets and alleys, and sells and conveys the lots with reference to the plat, a right will arise in favor of the purchasers of lots fronting upon an alley, of having the alley forever kept open,— not that it shall be kept free from obstruction on the surface of the soil, but to the sky,—and no grant or covenant will be required to create this right. If a party seeks to construct a bridge across the alley so as to connect the buildings on each side of the same, a party whose lot abuts on the same alley may enjoin the construction of such obstruction. The right may be regarded as in the nature of an incorporeal hereditament, and appurtenant to the lots. The right of the holder of such easement is to have the street kept open, so that free access may be had to and from the lots abutting on the street, and that light and air may .pass unobstructed across the open space between the suri ace of the street and the sky.</p> <p>G. A bill of complaint sought to enjoin the construction of a bridge over an alloy, which was described according to information then in the possession of the complainants. The defendants, by their answer, admitted their intention to build the proposed bridge, and described in detail the particular structure proposed to be built, giving the length, width, etc. On the hearing a decree was entered enjoining the defendants from constructing any bridge across the alley: Held, that the decree was correct, and was properly not limited to the particular kind of structure described in the defendants’ answer.</p> <p>7. Injunction—obstruction of right of way•—irreparable injury. Irreparable injury, as used in the law of injunction, does not necessarily mean that the injury is beyond the possibility of compensation in damages, nor that it must be very great; and the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages, only, often furnishes the very best reason why a court,of equity should interfere in a case where the nuisance is a continuing one.</p> <p>8. Easement—sale of lots with reference to alley—rights of purchaser. Where the owner of lots exhibits a plat of a town or addition in which a street has been laid out and dedicated, and sells and conveys lots abutting on such street with a clear reference to the plat, the purchaser of such lots will acquire, as appurtenant to the lots, the right to have the street kept open, and maintained.</p> <p>9. It is not necessary, in such case, that the easement claimed by the grantee be really necessary for the enjoym ent of the estate granted. It is sufficient if it is highly convenient and beneficial for such purpose.</p>

James A. Creighton, Judge, presiding. Appellant brought its action of assumpsit in the circuit court of Sangamon county on a promissory note signed “Speed Butler & Co.,” alleged to have been executed… Held: which, in effect, sought to draw the legal conclusion of the liability of appellee from the facts, and which were refused by the trial court.

<p>Appeal from the Circuit Court of Jackson county; the Hon. A. K. Vickers, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District heard in that court on appeal from the Circuit Court of vari gamón county; the Hon. Jesse J, Phillips, Judge, ¿w.rhling.</p>

<p>1. Constitutional law—act relating to the sale of railroad tickets. The act of 1875, entitled “An act to prevent frauds upon travelers, and owner or owners of any railroad, steamboat or other conveyance for the transportation of passengers,” is not in violation of section 2 of article 2 of the constitution of the State, or the similar clause of the constitution of the United States which declares that “no person shall be deprived of life, liberty or property without due process of law.”</p> <p>2. Same—due process of law. The constitution does not say that the disposition of property may not be limited or regulated when the interests of the public so require, but that no person shall be deprived of his property without due process of law. The phrase “due process of law,” which is equivalent to the words “law of the land,” as used in magna eharta, means, “in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.”</p> <p>3. An act of the legislature which transfers the property of one man . to another without his consent) is not a constitutional exercise of legislative power, because, if effectual, it operates to deprive a man of his property without due process of law.</p> <p>4. Same—regulating railroads. The franchises of railroads acting under charters or acts of incorporation are of a public nature, so far as the safety, convenience and comfort of passengers are concerned, and reasonable regulations affecting the conduct of such public employment are fit subjects of legislative action. The law-making power may provide for remedying such evils as maybe found to exist, and in so doing may sometimes impose restrictions, which are deemed necessary upon the use and enjoyment of property.</p> <p>5. Same—impairing obligation of contracts. An act of the legislature tending to impair the obligation of a contract is inoperative and of no effect as to contracts existing at the time of the passage of the act, but as to future contracts it will not be rendered inoperative by the provisions of the State and Federal constitutions, which forbid the passage of laws impairing the obligation of contracts.</p> <p>6. Same—interstate commerce—police power. The deposit in Congress of the power to regulate commerce between the States does not deprive the States of their police power. Under that power a State may legislate to promote domestic order, morals and safety; to pro~ tect the lives, limbs, quiet and property of all persons within the State to secure the general comfort, health and prosperity of the State; and to prevent crime, pauperism, disturbance of the peace, and all forms of social evils.</p> <p>7. The State can not invade the domain of the national government, or assume powers properly belonging to Congress. In relation to the subject of commerce, including inter-State passenger travel, the State can not place .any obstacle in the way of such travel or impose any burden on it. But many acts of a State may affect or influence commerce without amounting to a regulation of it.</p> <p>8. State legislation which is not an obstacle to inter-State commerce and imposes no burden upon it, and which comes within a proper exercise of the police power, is not unconstitutional, as infringing upon the powers of Congress.</p> <p>9. Saiie—police regulation. A statutory requirement that railroad tickets shall be sold by agents duly authorized to sell the same, and requiring such agents to exhibit their authority to act in making such sales, is merely a police regulation as to the manner in which the business of the carrier shall be conducted, and such a regulation does not violate section 22 of article á of the State constitution, which prohibits the passage of special laws granting special and exclusive privileges.</p> <p>10. No privilege or immunity of any party has been abridged by the act of 1875, entitled “An act to prevent frauds upon travelers, and owner or owners of any railroad, steamboat or other conveyances for the transportation of passengers.” The right of conducting the business of selling railroad and steamboat tickets is curtailed and hedged about by certain restrictions which the legislature deemed necessary to prevent frauds upon travelers and public carriers, and which the government may justly prescribe for the general good.</p> <p>11. Contract—railroad ticket. A railroad ticket containing the name of the railway company, the words “A to B,” the signature of the general ticket agent, and certain figures or numbers, is not a contract, but is merely the evidence of a contract, or a mere receipt taken or voucher adopted for convenience, to show that the passenger has paid his fare from one place to another.</p>

Writ of Error to the Circuit Court of Jackson county; the Hon. J. P. Roberts, Judge, presiding.

<p>Appeal from the. Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Appeal from the County Court of Madison county; the Hon. W. H. Kbome, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. B. R. Burroughs, Judge, presiding.

Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Jersey county; the Hon. Cyrus Epler, Judge, presiding.

James A. Creighton, Judge, presiding. Appellee filed his bill and amended bill in the circuit court of Sangamon county, against his wife, appellant, alleging that on October 11, 1881, for the expressed consideration of five dollars, but without any consideration in fact, he conveyed to appellant, then and still his wife, lots 12 and 13, in Rafter’s addition to Springfield; that about sixteen years before the filing of the bill he purchased the lots with his own money, and…

S. Z. Landes, Judge, presiding. This was an action of debt, brought in the name of the People, for the use of Wallace Yan Gilder, against the Ohio and Mississippi Railway Company, to recover a penalty for an alleged violation of section 68, chapter 114, of the statute, which provides that “every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle, placed and kept on each locomotive engine, and shall cause the same to be rung or…