delivered the opinion of the Court:
The petition in this case was exhibited by the Minnesota and Northwestern Railroad Company, and the object was to have a strip of land, particularly described, and alleged to belong to Lorenzo C. Ward, condemned, under the Eminent Domain act, for the right of .way upon which to construct its railroad track. The proceedings on the petition were had in the circuit court of Kane county. Before the trial was commenced, defendant filed a cross-petition, in which he described the lands owned by him, of which the strip proposed to be taken by the railroad company for its right of way, formed a part, and showing how it would be affected by cutting off from •the main body of his land the strip to be condemned, and the construction of the .railroad upon it, and asked to have the damages assessed 'to him for the injury that would be done to the entire body of his land. The cause was submitted to a jury on the original and the cross-petitions, who, after viewing the premises and hearing the evidence offered by both parties, returned a verdict allowing the owner, for the right of way, $1800, and for damages, $1700, making a total sum of $3500, for which amount the court rendered judgment, in the usual form. The land owner brings the case to this court on appeal.
It will be observed, the petition states every fact the law requires to be stated to give the court jurisdiction to hear and determine the condemnation proceedings. It is distinctly alleged, petitioner is a corporation duly created, organized and existing under the laws of the State of Illinois, and that it is authorized, by its articles of incorporation, to construct, operate and maintain a railroad between certain terminal points within the State; that it intends to construct a railroad, as authorized by its articles of incorporation, and that the lands of defendant are necessary for use for the right of way; that petitioner, by its proper officers, has located its line of road over the lands of defendant; that it is unable to agree with the owner as to the compensation to be made for the taking of his land, and therefore asks that the compensation to be made to the owner for that portion of his land taken, may be assessed under the statute. No question is made as to the form or sufficiency of the petition, but it is objected, no proof was made, on the trial, that petitioner was either a dejare or de facto corporation, and it is insisted the omission to make such proof is fatal to the present condemnation judgment. Several answers may be made to the position taken.
First—Defendant waived the making of such proof by going to trial on the merits of the controversy, without objection. Even if proof is required to be made of the formal allegations of the petition, such proof is to be addressed to the court, and not to the jury. Whether the petitioner, in such cases, is a corporation, and is authorized to exercise the right of eminent domain, is a question to be determined by the court, and with which the jury have no concern. It is a preliminary question, and if the land owner goes to trial on the merits, without requiring such proof to be made, it will be understood he waives the making of the proof, and admits the capacity in which the petitioner sues. The fact that no formal answer may be required to be made to the petition, under the practice that prevails in this State, would not prevent defendant from objecting that petitioner shall not proceed to ascertain the compensation to be paid, until proof is made it is a corporation, either de jure or de facto, under the law, and .as such is authorized to exercise the right of eminent domain. In this case, defendant went to trial on the merits, without objection as to the right of petitioner to condemn his land for public purposes, and he will be held to have waived the necessity for making proof of such right.
Second—There is some proof the petitioner is a corporation de facto, and that is all the law requires in this class of cases. There is evidence, although it may be slight, of corporate acts done by petitioner. It appears an engineer has been appointed, the line of the proposed road has been located, and other steps taken towards the building of the road, to be constructed between points named, and among other things done, the line of road has been located over lands owned by defendant. These aré corporate acts, and tend to show petitioner is a corporation defacto.
Third—By filing a cross-petition, asking to have damages assessed for the injury done to his lands not taken, defendant admits petitioner has the right to exercise the right of eminent domain, and may lawfully condemn his lands for public purposes. This, of course, it could not do unless it was a corporation, in fact and in law. Admitting, as the cross-petition does, petitioner’s right to condemn defendant’s land, dispenses with any necessity for proof that petitioner is a corporation, as alleged in the petition. In the cross-petition, reference is made to the “said railroad company,”—that is, the corporation mentioned in the original petition asking for the condemnation of defendant’s land. It may also be said, defendant, further recognized petitioner as a de facto corporation by asking the court for a rule upon petitioner to exhibit its plan and profile of its projected railroad across his lands so proposed to be condemned. The court might well have understood, from these and other facts appearing in the record, defendant did not require any preliminary proof to be made of petitioner’s corporate capacity, and of its right to condemn lands for public uses.
It is insisted, there was no proof offered on the allegation, petitioner was unable to agree with the owner as to compensation to be paid for the land sought to be taken. Without conceding it is necessary to make such proof, that fact, alleged in the petition, is very apparent. It is true, no direct testimony was offered, but the fact there is a vigorous contest between the land owner and the corporation, both on the original as well as upon the cross-petition, .makes it evident the parties were unable to agree as to the compensation to be paid for the land to be condemned. It w'ould have been idle to offer direct testimony on a point in the case that both parties conceded.
Finally, it is said, neither the verdict of the jury nor the judgment of the court is supported by the evidence. The testimony contained in the record as to the damages defendant would sustain by reason of -taking a portion of his land and the construction of the railroad upon it, has been subjected to a careful and close study. It is found to be conflicting in the extreme. Witnesses, so far as this court can know, of equal candor, and opportunities to form a correct judgment concerning the matters about which they were called to testify, differ widely as to the value of the land taken, and the damages that would otherwise be sustained. It is upon such questions the verdict of a jury, drawn from the vicinity, is regarded of great value. In this case, the jury not only saw and heard the respective witnesses, but had the advantage of viewing the premises before making up their verdict. Great weight, therefore, ought to be given to their judgment as to the matters submitted to them. The question made as to the damages sustained, is, of course, purely a question of fact, concerning which the evidence is so conflicting this court ■would not feel at liberty to disturb the finding of the jury, under the circumstances.
No error appearing in the record, the judgment must be affirmed.
Judgment affirmed.