executed it when he was requested to do so and the bank honored it and paid it.

We are not unmindful of the fact that the jury saw the witnesses and heard them testify, and that the court, who also saw the witnesses and heard them testify, refused to set aside the verdict and entered a decree dismissing the bill; but it is apparent from a careful consideration of the whole record, after giving the testimony of the witnesses for the appellees the full credit to which it is entitled, that the verdict of the jury is palpably against the weight of the evidence and that the court erred in not setting it aside and granting a new trial.

The only other ground urged for reversal is the action. of the court in not allowing the witness A. B. Anderson, the banker at Oneida, to express an opinion as to the mental condition of the testator. Anderson testified to his long acquaintance with the testator, but testified to only one circumstance that was unusual or peculiar that he noticed, and that was when the testator asked him where Mrs. Coleman lived. Anderson knew that the testator was well acquainted in Oneida and that he had known where Mrs. Coleman lived and had visited there frequently. This was a slight circumstance and still one that was significant. The court should have allowed the witness to give an opinion in view of his long years of acquaintance, together with this experience as a basis.

For the reasons given the decree of the circuit court is reversed and the cause is remanded for a new trial. Reversed and remanded.

case.

Mr. Justice Craig took no part in the decision of this

(No. 11656.-Judgment affirmed.)

THE CITY OF CHICAGO, Appellee, vs. JAMES F. LORD et al.(THE NEW YORK CENTRAL RAILROAD COMPANY et al. Appellants.)

Opinion filed December 19, 1917-Rehearing denied Feb. 7, 1918.

EMINENT DOMAIN—when a railroad company is not entitled to claim consequential damages. For the land actually underlying pillars, piers and columns supporting a viaduct constructed over railroad yards by a special assessment proceeding for widening a street the railroad company is entitled to compensation as for land actually taken, but if damages for re-adjusting the tracks have been allowed and benefits have been assessed, as to which no complaint is made, the company is not entitled to consequential damages because of the fact that the spaces between the pillars and paralleling the tracks, and the spaces immediately surrounding the pillars, can not be used for railroad purposes.

APPEAL from the Superior Court of Cook county; the Hon. THEODORE BRENTANO, Judge, presiding.

ROBERT J. CARY, BERTRAND WALKER, Herbert Haase, F. HAROLD SCHMITT, HUBERT HOWARD, and A. B. ENOCH, (E. T. GLENNON, and M. L. BELL, of counsel,) for appellants.

SAMUEL A. ETTELSON, Corporation Counsel, Harry F. ATWOOD, EUGENE H. DUPEE, and TOLMAN, REDFIELD & SEXTON, (ROBERT REDFIELD, and HENRY P. CHANDLER, of counsel,) for appellee.

Mr. JUSTICE COOKE delivered the opinion of the court:

In City of Chicago v. Lord, 277 Ill. 590, the judgment of the superior court of Cook county awarding damages to the New York Central Railroad Company and the Chicago, Rock Island and Pacific Railway Company was reversed and the cause remanded, for the reason, as there pointed out, that the trial court had failed to award compensation for land actually taken for the improvement. The cause

was re-instated under the remanding order, and upon a new trial the court awarded the two railroad companies $2500 to cover the cost of the re-adjustment of their yards, which was the same amount awarded for that item in the former trial; $16,285.84 for land actually taken, owned jointly by the two railroad companies; and to the New York Central Railroad Company $1346.77 for land taken and $1000 for improvements located upon its separate property. The compensation awarded for land taken was for the ground actually underlying the pillars, piers and columns supporting the new viaduct within the 52-foot strip taken for the widening of Twelfth street. The two railroad companies have again appealed from the judgment of the superior court, and urge that the court erred in not awarding damages for the area immediately contiguous to the said pillars, piers and columns, the use of which for railroad purposes, it is contended, will be entirely destroyed, because, in the case of piers, of the necessary clearance required between the nearest railway track and the piers, and in the case of the pillars and columns, because of such necessary clearance as well as the fact that the portion of land north and south of the pillars and columns, on account of their peculiar location parallel with the railroad tracks, cannot be occupied by tracks or otherwise made use of for railroad purposes. It is also contended in reference to another parcel of land over which the improvement is to be constructed, that fifty per cent of the present use of the property for railroad purposes will be destroyed. A portion of this last mentioned parcel is at present used as a driveway to a platform also located thereon and adjoining the team track. There is also a crane or hoist located on this parcel, used for loading and unloading heavy material. The construction of the improvement will necessitate the removal of this crane and will prevent the handling of heavy material on this parcel of land, which constitutes about one-half of the business at present transacted at the loading platform located there.

Benefits were assessed against appellants in the original proceedings, and there was, as stated in City of Chicago v. Lord, supra, no question raised as to the amount of the benefits assessed. The land for which the appellants claim the court should have awarded compensation is not actually taken by the improvement but is land damaged and not taken. Appellants are not entitled to consequential damages. Following the decision in City of Chicago v. Lord, supra, the superior court awarded damages for the land actually taken, which was all that appellants were entitled to, and the judgment is affirmed.

Judgment affirmed.

(No. 11745.-Judgment affirmed.)

SHELDEN ATWATER, Appellant, 7's. EARL CLEVELAND ECKARD, Appellee.

Opinion filed December 19, 1917-Rehearing denied Feb. 7, 1918.

I. ELECTIONS—erasure on ballot is not distinguishing mark. An erasure on the back of a ballot, where a voter had apparently written a name and attempted to erase it with a rubber eraser, leaving the name almost completely erased and practically indistinguishable, is not a distinguishing mark that will justify disregarding the ballot. 2. SAME when ballots should be treated as having a sufficient Where a ballot is marked with a diagonal line in the square opposite the name of one of the candidates, which is intersected by another line apparently made by two strokes of the pencil, leaving a fork at the top, the ballot should be treated as having a sufficient cross; so, also, where one line in the party circle slightly crosses another line and continues in the same general direction as the other, forming a character similar to the letter "Y."

cross.

3. SAME what is not a distinguishing mark. A blur across the first name of one of the candidates for the contested office, apparently made in an attempt to erase a pencil mark across the name, should not be considered a distinguishing mark.

CARTER, C. J., and CARTWRIGHT, J., dissenting.

APPEAL from the County Court of Mason county; the Hon. JESSE M. OTT, Judge, presiding.

lant.

CLARENCE W. HEYL, and HARRY C. HEYL, for appel

HARDIN W. MASTERS, and E. P. NISCHWITZ, for appellee.

Mr. JUSTICE CRAIG delivered the opinion of the court:

Appellant, Shelden Atwater, was the republican candidate for the office of supervisor of the town of Quiver, in Mason county, at the township election held on April 3, 1917, and appellee, Earl Cleveland Eckard, was the democratic candidate for that office. At the close of the election the judges of election counted the ballots and declared appellee elected by one majority. Appellant filed a petition to contest the election in the county court of Mason county, and on the hearing the court ordered the ballots produced and re-counted. The court found the appellee had received 126 legal votes and appellant 125 and dismissed the petition. This appeal followed.

It is conceded that of the ballots produced and counted on the hearing of the contest in the county court 125 should be counted for appellant and 123 for appellee. Six ballots, marked, respectively, Exhibits 1, 2, 3, 4, 5 and 6, were objected to, and of these ballots it is further conceded that those marked Exhibits 1, 4 and 6 were properly not counted for either party. Ballots marked Exhibits 2, 3 and 5 were counted for appellee, thereby giving him a total of 126 votes, and one majority over appellart.

It is assigned for error that the court erred in holding that the ballots marked Exhibits 2, 3 and 5 were legal ballots and should be counted for appellee. It is further assigned for error that the court erred in not holding and finding that the election was illegal because of the improper and unlawful interference of appellee with the re-count of the ballots by the judges and clerks of election and in changing the returns of said election after the same had been an