dissenting:
The condemnation proceedings instituted by the Rockford, Rock Island and St. Louis Railroad Company, to whose rights the appellant has succeeded, was a suit at law. While many of the files in this case were missing and the record of the court as introduced by the appellee was incomplete, it appears sufficiently that the matter proceeded to a final determination and that damages were assessed. Mrs. Bartlow had a life estate in the land condemned, with remainder to her children, all of them at that time minors. The court in which, the condemnation proceedings were prosecuted being a law court, it had no power or jurisdiction to make any division of the damages awarded among the parties in interest or to exercise any control whatever over that fund except to adjudge its payment for the land sought to be taken. The method of controlling that fund, and the rights of the several parties in respect to it, could be determined only in a court of equity. The petitioner in the condemnation suit was under no obligation whatever to institute any further proceeding to have the equitable rights of the parties determined. That is a burden which tfye law does not impose upon it. The fund constituted by the damages awarded took the place of the land. Mrs. Bartlow had a life estate in the land and was entitled to the use of this fund during her lifetime. The legal title to the fund was in her, and every obligation of the petitioner in the condemnation suit was fulfilled upon the payment of the money to her.
Had there been no proof of payment to the widow we think this decree should be reversed for a further reason. It does not appear that the whole of the record of the circuit court in the condemnation proceeding was introduced in evidence in this cause. It appears from that part of the record which is in evidence that the report of the commissioners appointed to assess the damages was filed and approved. Under the statute then in force it thereupon became the duty of the court to enter judgment on the report, adjudging the petitioner to pay the damages awarded to the defendants. In the absence of proof to the contrary it must be presumed this judgment was entered. The petitioner company immediately took possession of the land condemned, constructed its railroad upon it, and it and its grantees have been in the continuous possession of it ever since, using it as a railroad right of way. This court held in Chicago and Northwestern Railway Co. v. Galt, 133 Ill. 657, that the judgment in a condemnation proceeding is not such a debt or judgment as may be collected by execution unless possession is taken of the property condemned; that after acceptance and possession taken, the' judgment becomes absolute and bears interest, and that upon the lapse of twenty years after possession taken, payment of the judgment might be presumed. The youngest child of Cornelius Bartlow arrived at the age of his majority September 11, 1886. When this judgment became absolute against the petitioner it constituted a valid claim in favor of the owners of the land, which could have been enforced in apt time by appropriate action. As more than twenty years have elapsed since the youngest child became of age, this judgment must be presumed to have been paid and fully discharged.
That part of the decree which adjudged that appellant had no title or claim to a right of way over the lands sought to be partitioned; that it was barred from asserting any interest in said lands, and providing for the fixing of a time within which it should remove its improvements from the right of way or make compensation for such right of way by agreeing with the owners or instituting condemnation proceedings, should, in our opinion, be reversed" ánd the cause remanded to the circuit court, with directions to enter a decree that the title to the right of way in question is in appellant.