petition. The compensation, however, for each must be assessed separately. The assessment may be by one jury or by different juries. This is left to the discretion and direction of the court or judge.

8188. Another provision to simplify proceedings and insure equity is that amendments to the petition, or to any paper or record in the cause, may be permitted, whenever necessary, to a fair trial and final determination of the questions involved. That no just restriction should be put upon this provision, or any opportunity for unreasonable delay be afforded, it is added: "Should it become necessary at any stage of the proceedings to bring a new party before the court or judge, the court or judge shall have the power to make such rule or order in relation thereto as may be deemed reasonable and proper; and shall also have power to make all necessary rules and orders for notice to parties of the pendency of the proceedings, and to issue all process necessary to the execution of orders and judgments as they may be entered.” Although the courts are held to a specially strict construction of law in cases of eminent domain,1 the proceedings are largely in the nature of equity. The right to bring a, new party into the case is provided for specifically. "Any person," says the eleventh section of the statute, "not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work,

1 Williams v. Powell, 6 Wheat. 119; Beaty v. Knowler, 4 Peters, 168; Early v. Doe, 16 How. 610; Rule v. Parker, 1 Cooke, 365; Parker v. Overmann, 18 How. 137.

and the rights of such last named petitioner shall thereupon be fully considered and determined."

§ 189. No specific jury provision is made for cases in which the hearing of petition occurs in term time; but if fixed for hearing in vacation it is the duty of the clerk of the court in whose office the petition is filed, to write the names of each of sixty-four disinterested freeholders of the county on as many distinct slips of paper, and, in the presence of two disinterested freeholders, cause to be selected from the same the names of twelve persons to serve as jurors. This selection must be made by lot, "without choice or discrimination." The preparation of the list and the drawing of the lot must occur at the time of issuing summons, or making publication. The selection made, the clerk shall issue venire, directed to the sheriff of his county, commanding him to summon the twelve persons so selected as jurors to appear at the court house, in the county, at a time to be named in the venire.

§ 190. The petitioner and every party interested in the ascertainment of compensation have the same right of challenge of jurors as in other civil cases in the circuit court. If the panel be not full by reason of non-attendance, or be exhausted by challenge, the judge hearing the petition shall designate by name the necessary number of persons of proper qualification, and the clerk or justice shall issue another venire, returnable instanter and until the jury be full.

§ 191. The jury selected, the following oath must be administered to them: "You, and each of you, do

For the right of challenge as defined by statute, see Gross, vol. ii, chap. 58.

solemnly swear that you will well and truly ascertain and report just compensation to the owner (and each owner) of the property which is sought to take or damage in this case, and to each person therein interested, according to the facts in the case, as the same may be made to appear by the evidence, and that you will truly report such compensation so ascertained. So help you God."

§ 192. In ascertaining the real facts in the case the jury shall, at the request of either party, go upon the land sought to be taken or damaged, in person, and examine the same. After hearing and seeing all the evidence in the case the jury must make report in writing so as to clearly set forth and show the compensation ascertained, to each person thereto entitled. If the report is not sufficiently explicit the jury shall amend it under the direction of the court or the judge. The verdict shall thereupon be recorded. It is expressly provided, in this connection, that no benefits or advantages which may accrue to lands or property affected shall be set off against, or deducted from, such compensation in any case.1

§ 193. The next step is for the judge, or court, to "adjust and make such order as to right and justice shall pertain." This order shall issue to the petitioner, directing entry upon such property and the use of the same, upon payment of full compensation, as ascertained. This order, if coupled with evidence of such payment, shall constitute complete justification of the taking of such property. Payment of

1 The original doctrine of set-off in Illinois was just the reverse of this, and gave rise to much litigation, ill feeling and injustice.

compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt for the payment. Or, if preferred, payment may be made to the party entitled, his or her or their conservator or guardian. The court or judge must cause the verdict of the jury and the judgment of the court to be entered upon the court records.

$194. In the event that both parties are satisfied with the verdict of the jury, the transaction is complete, and the right sought has been fully secured. But the right of appeal to the supreme court is guaranteed in all cases. If the party whose property is to be taken or damaged appeals, 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. If the appeal is taken by the petitioner the same bond shall be exacted. The bond shall be submitted to the judge or justice before whom such proceeding shall be had and be approved by him. The execution and filing shall be within such time as the judge may designate.

§ 195. The right to acquire a roadway includes the right to acquire as much land as may be needed for the work-shops and other appendages. This right may lay dormant for an indefinite length of time, provided its final exercise is in itself legitimate.1 In case the regularity of the proceedings under which the

1 Chicago, Burlington and Quincy R. R. v. Wilson, 17 Ill. 123.

right of way was acquired should be called in question, the presumption of the law would be in favor of its regularity,1 although the requirement of regularity is strict, as previously stated.

2

§ 196. There are a few additional points established by the decisions that remain to be noted before calling attention to the method of acquiring the right of way to enter a city or pass over school and state lands. Authorities could be given for the doctrine that the title to land acquired by a railroad company is absolute.3 An early case held that the land taken from private persons and vested in a corporation, under the exercise of this right of eminent domain becomes really vested in the state.4

§ 197. The constitution is explicit on this point (article xi, section 14): "The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the general assembly of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity, the same as of individuals." The bill of rights is more sweeping. Besides forbidding the making of any irrevocable grant of special privileges or immunities, it declares (section 13): "Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury as shall be prescribed by law. The fee of land taken for railroad tracks, without con

2

1 Galena and Chicago Union R. R. Co. v. Pound, 22 Ill. 399. Harper v. Lexington and Ohio R. R. Co. 2 Dana, 227.

3 Chicago and Mississippi R. R. Co. v. Patchin, 16 Ill. 198. * The State v. Evans, 2 Scam. 208.