CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ILLINOIS. THE CHICAGO, PEORIA AND ST. LOUIS RAILWAY COMPANY v. JAMES ALDRICH. Filed at Mt. Vernon June 13, 1890. 1. EMINENT DOMAIN—jurors in condemnation proceedings—right of challenge in vacation—and of the grounds of challenge-presumption. The statute gives the parties to a proceeding to condemn land in vacation, the same right of challenge of jurors as in other civil cases in the circuit court. Under this statute, a ground of challenge in a civil case in a court of record is good in a condemnation proceeding. 2. It is a sufficient cause of challenge that a juror called, if not a member of the regular panel, has served as a juror in the trial of any cause in any court of record in the county within one year previous to being called. 3. Where the court sustains a challenge to a juror on the ground of his service on a jury in a court of record within a year previous to his being called, it will, in favor of the ruling, be presumed that he was not a member of the regular panel, but a juror to whom the cause of challenge would apply. 4. In a case where the bill of exceptions does not purport to contain all the evidence heard as to the qualification of jurors, and a general challenge is allowed, not specifically limited to the particular ground disclosed by the bill of exceptions, it will be presumed, if the particular ground is not shown, the challenge was sustained on other grounds. 134 9 150 379 134 9 182 423 Syllabus. 5. SAME-jury fees-whether taxable against the county. In a proceeding to condemn land, and after judgment, the petitioner entered a motion to strike the jury fees from the fee book, for the reason that the county should pay such fees, which motion was overruled. There was nothing in the record to show that such fees were charged to the petitioner, or that any judgment for costs was rendered against it: Held, that no assignment of errors could be entertained on the record. 6. SAME measure of damages-as to land not taken-what elements to be considered — of benefits. In estimating the damage to that part of a farm not taken for a railway track and right of way, the jury may take into consideration such incidental injury as will result from the perpetual use of the track for moving trains, or from danger of killing stock or injury to pasturing stock, and the danger of the escape of fire, and such other damages as are reasonably probable to ensue from the construction and operation of the proposed railroad. 7. It is proper for the jury to consider whether the land owner's stock will be liable to be killed, and his farm injured, or his fences and buildings destroyed by fire. If there is a liability to such injury, its tendency is to depreciate the value of the farm and its use, as well as in the market; and such liability to injury may be regarded as proximate damages, as much as the danger and inconvenience of crossing the road from one part of the farm to another. 8. In estimating the damages to land not taken, the jury should not consider any general benefits which the railroad may occasion in making a better market, or by affording conveniences for travel. They should not take into consideration such benefits as the land owner will enjoy in common with the owners of other lands through which the road runs, but only such as result to him over and above such common benefits. 9. In a proceeding for the condemnation of a right of way for a railroad, and the assessment of damages to the part of the land not taken. the court instructed the jury, that in estimating the damages to the land not taken, they should consider the railroad as running only through the defendant's farm, and should not consider any general benefits which the road might occasion by making a better market, or by affording conveniences for travel, etc.: Held, that there was no error in the instruction. 10. SAME-practice-limiting number of witnesses. Even if the court, in a condemnation proceeding, has the power, in its discretion, to limit the number of witnesses who shall be examined, or to limit the number of witnesses whose fees and costs shall be taxed against the petitioner, it can not be said that the failure to exercise that discretion is of itself an abuse of discretion which may be reviewed. Brief for the Appellant. 11. Three cases for the condemnation of land for a railroad right of way were tried together. After judgment, the petitioner moved the court to tax the fees and costs of all the defendants' witnesses in excess of six, against the defendants. It did not appear that more witnesses were examined than were fairly and reasonably necessary. Moreover, under such circumstances there is no rule of law which made it imperative upon the court to tax the fees and costs of any of the witnesses to the defendants. 12. PRESUMPTION-in support of judgment. On appeal or error, every reasonable intendment not negatived by the record, which goes to support the judgment, must prevail. APPEAL from the County Court of Madison county; the Hon. CYRUS L. COOK, Judge, presiding. Messrs. MORRISON & WHITLOCK, and Messrs. DALE & BRADSHAW, for the appellant: The challenged jurors were on the regular panel, and the challenge was not applicable, but applies only to jurors picked up to fill the panel. Rev. Stat. chap. 78, sec. 14. The third instruction given for defendant was erroneous, and should have been refused. After calling the attention of the jury to the rule for estimating damages to lands not taken by reason of the location and construction of the road, with several other "elements," it proceeds: "The danger, if any, by fire from passing engines, or otherwise, and liability, if any, of having the stock running on said farm killed or injured by trains, together with any other damage naturally resulting from the construction of the road." This instruction is in conflict with the opinion rendered in McReynolds v. Baltimore and Ohio Railroad Co. 106 Ill. 152. Damages from fire and the killing of stock are classed among the imaginary damages, and if any occur the road is liable. Jones v. Railroad Co. 68 Ill. 380; Railroad Co. v. Brake, 125 id. 396. The fourth instruction is objectionable. It, in effect, tells the jury, that in considering the question of injury to the lands |