78

77

making payment in advance. An injunction will not be granted to restrain the infliction of damage." The reason for the rule is that the amount of the damage can not be determined before it has been sustained. In a few states payment must be made before the damage occurs. The express requirement of prepayment, inserted in the eminent domain provision containing the damage clause, may, therefore, have the effect of making mandatory the issuance of an injunction to restrain the infliction of damage until payment is made. There is one important type of case where there is a conflict of authority as to the right to obtain an injunction. Where a railway is constructed upon a public highway the fee of which is in the public, the rule in Illinois" and in most states is that an injunction will not be granted to restrain the infliction of the damage, because the injury to the abutting property owners does not constitute a taking, but under the New York80 constitution, which does not contain the damage clause, the rule was laid down, in the elevated railroad cases, that an injunction will be granted to restrain the construction of the road until compensation is paid-on the theory that the abutting owners had an easement of light and air in the street. Thus the construction of the road amounts to a taking of these easements. In states where the damage clause is found, the abutters on streets, the fee of which is in the public, possess natural rights of access only, interference with which constitutes damage, but does not constitute a taking.

Province of the courts, the legislature and the condemning' authority. There has never been any provision in the constitutions of Illinois which expressly makes the question of what constitutes a public use one for judicial determination, but this result has been reached by construction. The constitutions of a few states contain provisions which expressly make the question of what constitutes a public use a question for the courts.81 The question of the propriety of delegating the power of eminent domain is for the legislative branch.82 The question of the necessity for a particular taking and the question of the amount of land needed is, in the first instance, for the condemning authority, which is vested with a relatively wide discretion, but its judgment is subject to review by the courts for an abuse of discretion.83 The questions of necessity are not for the jury. The constitutions of Illinois have never provided that the ne

"Childs v. Chicago, 279 Ill, 623 (1917); Bond v. Penn. Co. 171 Ill. 508 (1898): Stetson v. C. R. R. Co., 75 Ill. 74 (1874); Doane v. Lake St. El. Ry. Co., 165 Ill. 510 (1897); Aldis v. Union El. Ry. Co.. 203 Ill. 567 (1903). 35;

78 McElroy v. Kansas City. 21 Fed. 257; Brown v. Seattle, 5 Wash Searle v. Leod, 10 S. D. 312; Sala v. Pasadena, 162 Calif. 714; Donovan v. Albert. 11 N. D. 289; Delaware Co. Appeal. 119 Pa. 159.

"Doane v. Lake St. El. Ry.. 165 Ill. 510 (1897).

80 Story v. N. Y. El. Ry. Company, 90 N. Y. 122.

81 Provisions of this character are to be found in the constitutions of Arizona, Colora lo, Mississippi, Missouri, Washington, Oklahoma.

83 Chicago v. Lehman, 262 Ill. 468 (1914).

83 Chicago v. Lehman, 262 Ill. 468 (1914); Depue v. Banschbach, 273 Ill 574 (1916).

cessity of a proposed taking should be determined by any authority other than the legislature and the condemning authority, although in the convention of 1869-70s the majority of the committee on roads reported in favor of a provision which required the determination of the necessity for the taking of land for private roads to be by jury. A few states have provided, however, that in certain cases the jury shall determine the necessity for a particular taking.s The fixing of the amount of compensation is in Illinois for the jury subject to review by the courts as in all other jury cases, except in takings by the state, where other agencies may be authorized by the general assembly to determine the amount of compensation.

85

The guaranty of jury trial. Trial by jury on issues of compensation in condemnation cases was not guaranteed by the constitutions of 1818 and 1848. The Bill of Rights of the constitution of 1818 did provide, "That the right of trial by jury shall remain inviolate." The constitution of 1848 continued this clause with the addition, "and shall extend to all cases at law without regard to the amount in controversy." In accordance with the rule in other states this general provision was held not to apply to proceedings under the eminent domain clause, because a jury was not guaranteed at common law in condemnation cases.8 86

In the constitutional convention of 1869-70, there seems to have been no debate on the question of providing for a jury trial in condemnation cases, but most of the resolutions pertaining to eminent domain contained this requirement. In some instances the resolution called for a jury of freeholders. As finally adopted the provision read: "Such compensation, when not made by the state shall be ascertained by a jury as shall be prescribed by law." This provision is self-executing.87

The guaranty of jury trial on issues of compensation is far from being a universal provision. It is found in the constitutions of Arkansas, Arizona, California, Colorado, Florida, Iowa, Maryland, Missouri, North Dakota, Ohio, South Carolina, South Dakota. Washington, and West Virginia. A jury is guaranteed in cases of appeals from the findings of some statutory tribunal in Alabama, Kentucky, Oklahoma, Pennsylvania.

In takings by a state or its agents a jury is guaranteed in Alabama, Arkansas, Colorado, Florida, Iowa, Kentucky, Maryland (except in Baltimore), Ohio, Oklahoma and Pennsylvania. In states where there is no constitutional requirement of a jury trial it is not common to provide for a jury by statute.

84 Debates, p. 713.

85 Michigan Art. XIII, Secs. 1 and 2, applies to all cases except when made by the state. Wisconsin Art. XI. sec. 2. limits to takings by municipal corporations. New York Art. 1. Sec. 7. and Montana Art. III. Sec. 15. limit the provision to takings for private roads.

Se Johnson v. J. & C. R. R. Co., 23 Ill. 202 (1859). 87 Mitchell v. R R. Co.. 68 Ill. 286 (1873).

f

The constitution of 1870 expressly exempts the state from the guaranty of jury trials. The fixing by commissioners of compensation to owners of land taken for the state house was assumed to be proper in People v. Stuart.ss The Attorney General rendered an opinion that an armory commission might have exercised the power of eminent domain without a jury had the general assembly so provided but that since it did not so provide, a jury was required by the general eminent domain act. The provision exempting the state from the guaranty of jury trial has been said to extend to all takings by the state in its corporate capacity. The Department of Public Works and Buildings was likewise said, by the Attorney General, to have power to take lands without the intervention of a jury.

89

90

A provision exempting the state from jury trial is found in the constitution of New York, but its effect is not the same because the section in that state does not guarantee a jury trial in any case.

92

The constitutional guaranty of jury trial has been held to render void a section of the drainage act of 1879 which provided that commissioners might determine compensation in lieu of the jury when the court so ordered.91 But a statute has been held constitutional which makes the finding of the commissioners prima facie evidence as to the amount of compensation. The provision in the drainage act of 1879 which authorized the court to empanel a “jury" of twelve men and to direct them to examine the land, to make out an assessment roll and to grant a hearing on objections after the completion of the assessment of damages and benefits was held unconstitutional, because the hearing thus provided for was not the kind of hearing guaranteed by the constitution. This body of twelve men, functioning in this manner, was not a jury. But it has been held that a jury of six men in justice of the peace courts, under the specific authorization of Art. II, Sec. 5 of the constitution, may properly determine compensation, because the term "jury" as used in the eminent domain clause includes any kind of jury recognized by the constitution, and is not confined to that kind of jury which is guaranteed at common law because a trial by jury was never guaranteed at common law in eminent domain cases."

93

94

There have been objections to the jury provision in other states, particularly in condemnation proceedings instituted by municipalities. It is stated that trials are thereby delayed and prolonged, that the expense is increased and that the verdicts are not just to the city.

The state of New York in 1913 added an amendment providing that compensation might be fixed "by the supreme court with or without a jury, but not with a referee provision it was said:

88 97 Ill. 123 (1880).

* * *""

Opinions of the Attorney General, 1914, p. 153.
Opinions 1917-18, p. 729.

Concerning this

91 Juvinall v. Jamesburg Drainage District. 204 III. 106 (1903).

Chicago, T. T. R. R. Co. v. Chicago, 217 I. 343 (1905).

93 Wabash R. R Co. v. Coon Run Drainage District, 194 III. 310 (1901), McManus v. McDonough, 107 Ill. 95 (1883).

"What is wanted to secure justice to the owner and the city and expedition is the selection of suitable men who shall sit alone, and as far as possible do nothing else. We have tried to accomplish this result in the state of New York by so amending the constitution as to provide that the Supreme Court may make the awards for land taken for public use. We anticipate that one or more judges will be assigned to try cases and perhaps, also appeals from the Tax Commissioners on assessment cases. It would be an ideal condition if certain judges devoted themselves exclusively to these cases. trying some cases where the interest of the city is in a high valuation, and other cases where the interest of the city is in a low valuation."

1995

The consitutions of Illinois have not guaranteed a jury trial on issues of necessity for a particular taking. In the convention of 186970, proposed resolutions, relating to the exercise of the power of eminent domain by corporations and relating to the taking of land for private roads, contained provisions guaranteeing trial by jury on this issue, but these proposals were not adopted.96 The constitutions of a few states guarantee a jury trial on the issue of the necessity for the taking.97

Condemnation of land for roads for public and private use. It is generally held that the power of eminent domain does not. extend to the taking of land for private roads, because the taking is for private and not a public use. This was the law in this state prior to the adoption of the constitution of 1870.98

The constitutions of 1818 and 1848 contained no provision expressly authorizing such takings. In the debates of 1869-70 this matter was the subject of some discussion.99 The majority of the committee on roads reported in favor of a provision authorizing the opening of private roads, the necessity therefor and the amount of damages to be ascertained by a jury of freeholders. A minorit of the committee opposed this resolution upon the grounds that property should never be taken for private use: and, that it was conflict with the fourteenth amendment to the constitution of the United States. The minority recommended the resolution as it appeare in Art. IV, Sec. 30, with the exception that the word "maintaining" was dropped and the word "opening" inserted. The minority wer of the opinion that the section, in this form, placed such roads "upon the same ground that the courts have put railroads, for public as well as private use."

95 See Report of Conference on City Planning. 1912. p. 95 for a criticism of the jury system in condemnation cases. Lawson Purdy. President of the Department of Taxes and Assessments, New York City, in Proceedings of the Conference on City Planning, 1911, p. 120-121.

9 Debates, p. 713.

Now

97 Michigan Art. XIII, Secs. 1 and 2. does not apply to the state. Wisconsin. Art. XI. Sec. 2. applies to takings by municipal corporations. York, Art. L. Sec. 7, Montana, Art. III, Sec. 15, apply to takings of land for private roads.

98 Nesbit v. Trumbo, 39 Ill. 110 (1866). "Debates. p. 257,

As finally adopted the provision read: "The General Assembly may provide for establishing and opening roads and cart ways connected with a public road for private and public use."

Similar provisions are found in several states.100 Legislation has been passed in Illinois under the authority of this section."

101

Condemnation of land for drainage purposes. The constitutions of 1818 and 1848 did not contain any clause expressly authorizing the condemnation of land for the construction of drains and ditches, nor was any act passed by the general assembly during this period which squarely presented the question of constitutionality under the general eminent domain clause. In other states it had been held that land could be condemned under general eminent domain clauses for the purpose of draining swamp lands.102 The public purpose was found in the beneficial effect upon public health. In other cases similar acts were sustained on broader grounds. But this doctrine was not uniform. In New York before the drainage amendment was adopted it was held that such an act would not be valid unless the project could be related to the public health.103

In the convention of 1869-70 the drainage question came up quite early, 104 A resolution was introduced calling upon the committee on the bill of rights to inquire into the necessity for amending the constitution so as to authorize the enactment of drainage laws applicable to private property. The question was not debated but the committee. (doubtless having in mind the decision in Nesbit v. Trumbo,105 which held invalid an act of the legislature authorizing the condemnation of land for private rights of way and the conflict of authority on this question in other states) reported in favor of inserting such a provision. Accordingly section 31 of Art. IV was inserted. This section. provided: "The General Assembly may pass laws permitting the owners or occupants of land to construct drains and ditches for agricultural and sanitary purposes across the lands of others."

This provision was limited to the construction of drains and ditches for the two purposes specified. Since the effect of the clause was to operate as a limitation, there was no power to construct levees as independent projects. Furthermore, the general assembly could not authorize the organization of drainage districts with the power of levying special assessments because Section 9 of Article IX of the constitution limited the exercise of the power of levying special assessments "to cities, towns, and villages." Legislation attempting to authorize the condemnation of land for levee purposes, and the levying of special

109 Alabama, Arizona, Colorado, Georgia, Michigan, Mississippi, Missouri, Montana, Oklahoma, New York. Washington, Wyoming. Usually the road is referred to as a private way of necessity, occasionally as a right of way or private road. or a private and public road.

101 See Hurd's R. S. Ch. 121 Sec. 98.

102 Tidewater Co. v. Coster 18 N. J. Eq. 518.

103 In re Ryers 72 N. Y. 1.

104 Debates, p. 74.

105 39 Ill. 110 (1866).