Brand v. Union Elevated R. Co.

• Decision Date: 02 April 1913
• Citation: 101 N.E. 247,258 Ill. 133
• Parties: BRAND et al. v. UNION ELEVATED R. CO. et al.
• Court: Illinois Supreme Court

258 Ill. 133

101 N.E. 247

BRAND et al.

v.UNION ELEVATED R. CO. et al.

Supreme Court of Illinois.

Feb. 20, 1913.

Rehearing Denied April 2, 1913.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by Ella A. Brand and another, executors, against the Union Elevated Railroad Company and another. From a judgment of the Appellate Court (169 Ill. App. 449) affirming a judgment for defendants, plaintiffs appeal on certificate of importance granted by the Appellate Court. Affirmed.Harry S. Mecartney, of Chicago, for appellants.

James J. Barbour, of Chicago (Addison L. Gardner, of Chicago, of counsel), for appellees.

FARMER, J.

This suit was brought by appellants against appellees to recover damages alleged to have been sustained to their property from the construction of an elevated railroad in the street upon which the property abuts. Appellants' property fronts east on Wabash avenue, in the city of Chicago, and is situated between Jackson and Van Buren streets. Upon the request of the parties, the jury viewed the premises, and appellants introduced on the trial the testimony of Christian Florup, who was engaged in the real estate business, and was, and had been since prior to the construction of the elevated railroad, agent for the property and collector of rents of the building. He was the only witness offered upon the question of damages. At the conclusion of the evidence for appellants, the court, on motion of appellees, instructed the jury to return a verdict of not guilty. A motion by plaintiffs for a new trial was overruled, judgment rendered on the verdict, and plaintiffs appealed to this court. The court, being of opinion no constitutional question was involved authorizing an appeal direct to this court, transferred the case to the Appellate Court for the First District. That court affirmed the judgment of the superior court, and granted a certificate of importance, upon which plaintiffs below brought the case by appeal to this court.

Numerous errors were assigned in the Appellate Court; but counsel for appellants states in his brief that all of them were withdrawn, except those raising the question of the correct rule for assessing damages to property not taken but affected by a public use, and this is the only question discussed in the briefs in this court.

Appellees' elevated structure was completed and the road put in operation in October, 1897. The witness Florup described appellants' building and its uses, and the effect upon the property and its use by the construction and operation of the elevated railroad. He testified to the rentals received from the building before and after the construction of the road, and the value of the property before and after its construction. He placed its value at $4,800 per foot before the road was built, and testified that it did not decrease in market value by reason of the construction of the road. About three years after its completion the property increased in value to $6,500 per foot. The undisputed evidence, therefore, was that the market value of appellants' property was not depreciated by the construction of the road. It is claimed, however, that this was the result of general benefits common to all property in the neighborhood served by the improvement, and that such benefits should not be considered in determining the damages; that only special benefits, such as are a direct physical improvement to the property, like the draining of a wet, swampy tract of land by the improvement, or building a bridge across a stream running through the land, which enables the owner to enjoy it with greater advantage by reason of the improvement, should be considered in determining whether the property is damaged. Appellants contend that the benefits to their property by reason of the improvement, which operated to prevent a decrease in its market value, were general benefits; that there were no special benefits, but, on the contrary, the improvement injuriously affected the use of appellants' property by obstructing air and light, by noise and vibration, and by interference with access to their property; and they insist they are entitled to recover the damage thus resulting, without any reference to the other benefits that may have resulted from the improvement.

[1] This question is not a new one in this state. Since the adoption of our present Constitution and the passage of the eminent domain act, the question has been passed upon by this court a great many times. The first reported cases are Page v. Chicago, Milwaukee & St. Paul Railway Co., 70 Ill. 324,Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238, and Eberhart v. Chicago, Milwaukee & St. Paul Railway Co., 70 Ill. 347. In all three of these cases it was held the true measure of compensation for lnad not taken by the improvement was the difference between what the property would have sold for unaffected by the improvement, and what it would sell for as affected by it. In the Francis Case the court said: ‘It cannot be said appellee has sustained damage when his property is worth and will sell for as much or more than if no road had been built.’ That case was cited, and the rule announced adhered to, in the Page Case. The decision in the Eberhart Case (opinion by Justice Breese) was based upon the Page and Francis Cases; and the opinion in the Page Case was referred to for a discussion of the proper measure of compensation for property not taken. The rule announced in those cases has, with one exception, been followed in subsequent cases, down to Metropolitan West Side Elevated Railway Co. v. Stickney, 150 Ill. 362, 37 N. E. 1098,26 L. R. A. 773. That was a proceeding to condemn the right of way across certain lots, in which proceeding damages were claimed and awarded for injury to the parts of the lots not taken. The court instructed the jury that they could not consider any benefits to the property which might arise from the construction and operation of the railroad, unless the evidence showed such benefits were special to the particular property, and not shared by it in common with the generality of property in the vicinity of the line of the proposed railroad. In the opinion the court reviews all its previous decisions since the adoption of the Constitution of 1870, and sums up its conclusions in the following language: ‘It therefore follows that every element arising from the construction and operation of the railroad or other public improvement, which in an appreciable degree, capable of ascertainment in dollars and cents, enters into the diminution or increase of the value of the particular property, is proper to be taken into consideration in determining whether there has been damage, and the extent of it. Thus the situation of the property, the use to which it is devoted and of which it is susceptible, the character and extent of the business to which it is adapted before and after the construction of the public work, and, indeed, every fact and circumstance legitimately tending to show a depreciation or enhancement of the value of the property, are proper to be considered, so far as they tend to show the actual value of the land without and with the proposed taking for the public use, while, on the other hand, a consideration of facts or circumstances tending to show those general benefits supposed to flow to the community at large, or to the public generally, from the construction of the proposed railroad or other public work, and the effect of which, in determining the injury or benefit to the particular tract of land, cannot be other than conjectural and speculative, is excluded.’

[2] Appellants insist this decision and others in line with it are wrong; that the rule adopted in this state is contrary to the weight of authority in other states, and to the views of Mr. Lewis in his work on Eminent Domain; also that the rule is in conflict with Keithsburg & Eastern Railroad Co. v. Henry, 79 Ill. 290, and section 9 of the eminent domain act (Hurd's Rev. St. 1911, c. 47). It is quite true the decisions in this state upon the question here under consideration are not in harmony with the decisions of courts of last resort in some of our sister states, while they are in harmony with the decisions in some states. The conflict between the decisions in this state and the decisions of other states relied upon by appellants is not so much as to a rule of law as it is to the application of the rule. This court is in accord with the cases in other states, holding that only special benefits are to be considered in making just compensation for land damaged by, but not taken for, a public use.

[3] The difference is principally as to what are general benefits and what are special benefits. Some courts hold that only those benefits are special which directly and physically operate upon the particular property in a manner different from and not shared in common by other property in the neighborhood, and which enable the owner to use it with greater advantage. All other benefits, which increase the market value of the particular property in common with other property in the neighborhood, are held to be general benefits. This view has not been adopted in this state. The rule adopted in this state is thus stated in the Stickney Case: ‘If property is enhanced in value by reason of the improvement, as distinguished from the general benefits to the whole community at large, it is said to be specially benefited, and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may be, to a greater or less degree, likewise specially benefited. Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203. In other words, it is not such benefit as is special to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly situated,...