delivered the opinion of the Court:
The appellant, on the 19th of July, 1887, presented its petition, under the Eminent Domain act, to the judge of the county court of Warren county, praying for the condemnation of a strip of land for right of way, one hundred feet wide, extending across a. part of the south half of the south-west quarter, and the west half of the south-east quarter, of section 26, township 10 north, range 3 west, being the property of appellee. The judge made an indorsement on the petition, stating the time it was presented, and fixing the 3d of August for hearing the same. Pending the hearing, which commenced on the day stated, by leave of the court, and with the consent of the parties, it was agreed that the petition should be amended so as to embrace not only the strip of land required for right of way, but also an additional strip for the purposes of depot buildings, switches, side-tracks, etc. To meet this change in the scope of the petition, which appellee claimed would injuriously affect the north half of the south-west quarter of section 26,—a part of his farm not mentioned in the petition,—it was further agreed that appellee should file a cross-petition, setting forth his claim to damages for the alleged injury to the latter tract. With a view of facilitating the trial, it was agreed between counsel that the hearing of the evidence should proceed as though the cross-petition was on file, and that counsel for appellee might prepare it and place it on file at their leisure. It appears, however, that although it was prepared while the trial was going on, yet it was never filed by the clerk, or incorporated into the record, until after the present appeal was taken. Indeed, the original cross-petition was lost altogether; yet, upon notice in the lower court to amend the record, its contents were proved, and a substantial copy of it substituted in its stead. It is quite clear the case was tried upon the theory that there was a cross-petition in it, and this was so understood by the court and the counsel on both sides, and, as just seen, when it was discovered the transcript did not contain the cross-petition,'the record, upon due notice, was amended. The jury, .by their verdict, fixed the value of the land taken at $955.52, and assessed the damages to the land not taken at $1658, making altogether $2613.52, and judgment was entered upon the verdict for that amount. The company prayed an appeal to this court, which was allowed “on petitioner filing bond, on appeal, in the sum of $5000, with approved security, the said bond to be approved by the judge of the county court, and filed in thirty days from that date, * * * the condition of said bond to be for the payment of such compensation as might be finally adjudged in this case.” The court, however, refused to make an order permitting the petitioner to go into possession of the premises sought to be taken, upon the execution of such bond, to which ruling of the court the petitioner at the time excepted.
The 13th section of the Eminent Domain act, and under which said order was asked, provides as follows: “In cases in which compensation shall be provided, as aforesaid, if the party in whose favor the same is ascertained shall appeal such proceeding, the petitioner shall, notwithstanding, have the right to enter upon the use of the property, upon entering into bond, with sufficient surety, payable to the party interested in such compensation, conditioned for the payment of such compensation as may be finally adjudged in the case; and in case of appeal by the petitioner, petitioner shall enter into like bond, with approved surety.” While this section does not, in express terms, provide that the petitioning company, on its own appeal, shall, upon filing the bond therein provided for, have the right to enter upon the use of the property pending the litigation, nevertheless we think this was the intention of the legislature, and any other construction of it would subject the petitioner "to great loss and inconvenience in the case of an oppressive .and unjust judgment, from which an appeal would afford the only relief. Upon a careful consideration of the question, we are of opinion that the county court erred in not making the •order in question. By such entry the petitioner only acquires "the temporary use of the premises pending the litigation; and so far as any constitutional question is concerned, we perceive mo difference, on principle, between a case like this and one where a railway company enters upon the land of another for the purpose of making preliminary surveys and locating its line of road, and the right to do this is not questioned.
It further appears, that the petitioner, failing to obtain the ■order in question, deposited the amount of the judgment with the county treasurer,' who executed to the company his receipt therefor, and thereupon the treasurer paid the same over to appellee, upon the terms and conditions set forth in the subjoined receipt, which, after being entitled in the cause, proceeds as follows:
“Received of W. T. Gossett, county treasurer of Warren county, Illinois, $2613.52, being the full amount of money deposited with him by the above company, under order of court in the above entitled cause, which I hereby agree to refund to the Chicago, Santa Fe and California Railway Company in ■case the judgment in the above entitled cause shall be reversed by the Supreme Court of this State, on appeal or writ of error.
“Dated September 1, 1887.
DeWitt Phelps.”
Appellee, proceeding upon the hypothesis that the delivery of the money deposited by the company with the county treasurer to appellee, notwithstanding the conditions upon which such delivery was made, operated as. an absolute satisfaction and extinction of the judgment, so that no appeal would lie from it, has entered a motion in this court to dismiss the appeal upon the stipulated facts, as just stated. That it was not the intention of the parties that the transaction should have such an effect, is manifest. Nor do we think the law, in contravention of the manifest understanding of the parties, attaches to it the serious consequences which appellee’s counsel ascribe to it. The motion has little, if anything, to commend it, view it-as we may, and it will therefore be overruled.
The petitioner, on- the trial, offered no evidence in chief except as to the value of. the land to be taken. The- appellee then offered evidence not only in respect to the value’of the land taken, but also for the purpose of showing damages in respect to the land not taken, including that mentioned in the petition as well as the cross-petition.' The appellant then introduced as a witness'J. W. Robertson, who, after stating he-was acquainted with the manner in which appellant’s road runs through the land in question, and how appellee’s farm and buildings are located, was asked the following questions:
“What effect, in your judgment, will the construction and operation of that railroad, where .it is proposed to construct and operate it, with a station on the ground of Mr. Phelps, have upon the market value,—the selling value,—of the land that is not taken ?”
“Will the market value of the south half of the south-west quarter of section 26, and the west half of the south-east quarter of section 26, be in any way affected, in your judgment, by the construction and operation of the railroad, with a depot on the ground ?”
“In your judgment, will the construction and operation of this railroad across the south half of the south-west quarter of section 26, and the west half of the south-east quarter of Section 26, diminish the market value of the balance of these two eighties not included in the right of way ?”
" On objection by appellee, these questions were all held by the court improper, on the ground, as we gather it, that the evidence should have been offered in chief, and not in rebuttal. Many questions of like character, propounded to other witnesses, were excluded by the court on the same grounds, to all of which rulings the appellant, by its counsel, excepted. We think the court erred in not permitting the witness to answer the above questions, and in holding other questions of like character improper.
While we fully recognize the general rule, that a plaintiff will not be permitted to reserve a part of his evidence in chief, to be brought forward in rebuttal, and thereby obtain an undue advantage over his adversary, yet; at the same time, we do not think the appellant, by reason of this rule, was bound, at its peril, to assume that the land not taken was damaged, and to go on and try to make proof of it. Nor was appellant, on the other hand, in the absence of any proof tending to show such damage, bound to assume the burden of proving a negative. The appellant’s right to the relief asked did not depend at all upon its showing that the land not taken was damaged. Such proof would not have been in support of any allegation in the petition, yet, under the decisions of this court, the appellee had the right to offer such evidence, under the petition, as to all lands mentioned in it, without filing a cross-petition. Having availed himself of this right by offering new and independent evidence, we think it clear the appellant had the right to be heard in rebuttal.
For the errors indicated, the judgment of the court below will be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Judgment reversed.