in the half block, without the improvements, was all of the same general character. The witnesses for petitioner testified that the south one-third of the ground was a little more desirable than the north one-third, which, in turn, was a little more desirable than the middle one-third. This solely on account of the location of the various parts of the half block. Appellants sought, unsuccessfully, to have the case, so far as it related to their property, tried separately, basing their application upon the contention that there had been an agreement between the petitioner and the owners of the north one-third of the ground in reference to the compensation that should be allowed those owners; that this agreement would necessarily appear to the jury and would be prejudicial to the interests of appellants, for the reason that the jury would be inclined to fix the value of appellants' ground upon the same basis as that which the petitioner and the owners of the north one-third of the ground had adopted in agreeing as to the value of that one-third.

No counsel representing the owner of the north onethird of the ground took any part in the trial. No witness was called or testified in its behalf, but the cause as to that ground was submitted to the jury upon the testimony adduced by the petitioner. The witnesses for the petitioner in each instance fixed the value of the ground apart from the value of the improvements. Efforts made by the counsel for the appellants to examine or cross-examine with reference to the north one-third of the ground were in the trial successfully met by the objection that the counsel did not represent the owners of that property. Just before the case went to the jury, counsel representing the owners of certain buildings located on the property owned by appellants appeared in court and stated verbally: “If the court please, we have also agreed as to the values of certain barns standing upon some of the lots, so that there will be no occasion for me or the clients I represent to give any testimony; but my understanding, your honor, was,

that the amounts agreed upon should be written into the verdict before it goes into the hands of the jury. To that Mr. Sauter objects for some reason or other, and it leaves the matter at large in the hands of the jury." The Mr. Sauter referred to was one of the attorneys for the petitioner.

It is entirely apparent to us, and must have been to the jury, that some agreement had been entered into by which the owners of the north one-third of the ground had agreed to accept as compensation a sum fixed by the evidence for the petitioner as the value of that property. The law is that it is not competent to prove what the petitioner has paid for other property purchased by it for use in the same enterprise. The property owner, realizing the power of the petitioner to take his property, may prefer to take less than the real value rather than incur the expense of a litigation where he can in no event obtain more than its actual value. As is said by the authorities, such a sale is in the nature of a compromise, and for that reason is not a fair measure of value. Peoria Gas Light and Coke Co. v. Peoria Terminal Railway Co. 146 Ill. 372; Chicago and Alton Railroad Co. v. Scott, 225 id. 352.

The course pursued by appellee in the trial court resulted in its obtaining, indirectly, the benefit of a state of facts, evidence of which, if offered directly, would have been incompetent. Appellee seems unable to point out anything which moved the court, in the exercise of its discretion, to compel the appellants to submit their cause with that of the owners of the north one-third of the half block. It does not appear that a separation of the cause of appellants could have worked any injury to the petitioner or to any of the owners of the property, or could have required more than a few minutes additional time to dispose of the entire subject matter of the suit. It seeks, however, to show that the error, if any, was harmless.

This ground, located as it is, seems well adapted for use as a site for a building for warehouse or manufactur

ing purposes. Immediately east of this half block, running north and south through the block, was a public alley ten feet in width. Immediately east of that alley, upon an embankment about fifteen feet above the surface of the ground, were the lines of several railway companies, which run north and south through that part of the city. Properties directly north and south of this, abutting upon and west of this alley but in other blocks, enjoy switching facilities,that is, a switch track is extended across the alley to the second story of the building, or a viaduct or platform is built from the second story across the alley to a switch. track, so that freight can be loaded upon and unloaded from freight cars at the door without teaming. In order to enjoy switching privileges of that character it is necessary for the property owner to make a contract there for with one of the railroad companies and also to obtain from the city council permission to build over or upon the alley, and the question whether or not the property involved in this suit is now entitled to enjoy, or can at the option of the owners readily obtain, such switching privileges, was one much discussed in the trial of the case. Three witnesses testified as to the value of the ground without the improvements on the part of the petitioner and a like number testified as to that value on the part of the appellants. Two of those who testified for appellee fixed the value of the ground of appellants at $140 per front foot. The third of those who testified for appellee fixed the value of the ground at $150 per front foot. The testimony of these witnesses was that this ground would be worth about one-third more if it was in the enjoyment of the switching facilities owned by the properties abutting upon the same alley in blocks north and south. Their testimony was based upon the theory that no such switching facilities existed, and one of them was improperly permitted to state, over objection, that he had had experience with the city council in similar cases in another part of the city and had been unable to get an ordi

nance passed granting permission. The witnesses who testified for appellants fixed the value of the same ground at from $240 to $275 per front foot. This testimony was based upon the assumption that the owners of this property had, or would be readily able to obtain, switching connections with a railroad by means of a platform, viaduct or similar structure over the alley.

The compensation allowed by the jury for appellants' ground was at the rate of $150 per front foot. Appellee states that the evidence was offered on two theories: one that the property had or could readily obtain the switching facilities; the other that it was not entitled to such switching facilities; that the amount allowed was the highest amount fixed by any witness who testified upon the latter theory, and inasmuch as the proof does not show that the owner of the property is now entitled to place any permanent platform, viaduct or like structure upon or over the alley and does not show that the necessary contract with a railway company has been negotiated, no harm has been done the appellants by requiring them to submit their cause to the jury with that of the owners of the north one-third of the ground, because the amount allowed was the highest amount fixed by any witness as the value of the property without the right in question,-in other words, the insistence is, appellants have been awarded the greatest amount that could have been awarded had their cause been tried separately. We do not think this argument well considered. In the first place, it cannot be said, as a matter of law, that the question of the value of the property can be determined alone on the theory that the owners cannot obtain these switching privileges merely because they do not now have them. The facilities can be obtained if the necessary contract can be made with the railroad companies and if the requisite permission can be obtained from the city. It is possible, on account of its proximity to the tracks, that the owners of this property can make the required arrange

ments. If the tracks were not in the same block greater difficulty would be encountered in obtaining the very desirable rights now under consideration. In that event it is highly probable they could not be acquired at all. In determining the value of the ground, the owners thereof are entitled to have the jury take into consideration the possibility of effecting the needed arrangements. If that possibility adds to the value of the ground the owners are entitled to the addition. It appears upon an examination of the testimony of the three witnesses who testified for appellee, that while they say they took into consideration the proximity of the railroad tracks to this property in fixing its value, they did not consider the possibility of obtaining the switching facilities as increasing the value of the property. They regarded that possibility as too remote, but the jury were not necessarily bound by that conclusion of these witnesses. Appellee argues that as the right to the switching facilities. did not exist, the proximity of the railroad tracks was an actual damage to the property on account of the noise and dust necessarily attendant upon the operation of the trains. Under the circumstances it is entirely clear to us that the fact that the owners of the north one-third of the ground were willing to take a price fixed by the evidence for appellee would be regarded by the jury as an indication that the price fixed, upon the same basis, by the same witnesses for the property of appellants immediately adjoining was a fair valuation of that property. The jury viewed the premises, and might reasonably, under the proof in this case, have fixed the value of this ground at more than $150 per front foot although the owners do not now possess the switching rights.

No reason is apparent upon this record for the action. of appellee in insisting upon having the question of the compensation to be paid for the entire half block determined by the jury at one time, other than a desire to prejudice appellants by showing to the jury that the owners of the