Braun v. Metro. West Side El. R. Co.

• Decision Date: 23 November 1896
• Citation: 46 N.E. 974,166 Ill. 434
• Parties: BRAUN v. METROPOLITAN WEST SIDE EL. R. CO.
• Court: Illinois Supreme Court

166 Ill. 434

46 N.E. 974

BRAUN

v.METROPOLITAN WEST SIDE EL. R. CO.¹

Supreme Court of Illinois.

Nov. 23, 1896.

Appeal from superior court, Cook county; H. V. Freeman, Judge.

Action by the Metropolitan West Side Elevated Railroad Company against J. G. Braun and others. Judgment for plaintiff, and defendant Braun appeals. Affirmed.

M. Salomon and S. P. Shope, for appellant.

E. J. Harkness and W. W. Gurley, for appellee.

WILKIN, J.

This is an appeal from a judgment of the superior court of Cook county fixing the compensation and condemning property owned by appellant, for the use of appellee, in the construction of its elevated railroad. The petition sought the condemnation of several pieces of property owned by different proprietors. Previous to the trial, appellant moved the court to allow him a separate trial, which motion he supported by his affidavit. The motion was overruled, and he excepted, and he now assigns that ruling for error, upon which he insists that there should be a reversal of the judgment below. Section 5, c. 47, Rev. St. 1874, entitled ‘Eminent Domain,’ provides: ‘Any number of separate parcels of property situated in the same county may be included in one petition, and the compensation for each shall be assessed separately by the same or different juries as the court or judge may direct.’ Under this statute, we held, in Concordia Cemetery Ass'n v. Minnesota & N. W. R. Co., 121 Ill. 203, 12 N. E. 536, that whether or not a separate trial should be allowed was discretionary with the court, and, in the absence of anything to show an abuse of that discretion in refusing a separate trial, the action of the court would not be interfered with. There is nothing here to indicate that appellant did not have as full, fair, and adequate a hearing, together with the other parties to the petition, as he could have had upon a separate trial; and there was therefore no abuse of the court's discretion, and hence no error in that regard.

The principal ground for reversal insisted upon is that the amount of compensation and damage awarded appellant by the jury and judgment of the court is inadequate. The property is a 25-foot lot, fronting east on Paulina street, and extending back 125 feet to an alley. At the time of this condemnation proceeding, the entire lot was covered by buildings. Fronting on Paulina street was a two-story and basement building, covering the width of the lot, and extending back 74 feet, which was constructed for a residence. Subsequently, an addition of 26 feet, one story high, built of brick, was added; and still later an addition was constructed, 25 feet further back, adjoining the last-mentioned part, and extending back to the alley. Appellant's business was that of a dealer in ornamental iron goods,-such as iron moldings, door knobs, hinges, rosettes, etc. After erecting the two additions last mentioned, he occupied the first building basement, the one-story building, and the first floor of the two-story building on the alley for storage purposes; the second story of the last addition as a shop; the first floor of the dwelling house as an office; and the upper story as a residence. The petition sought the condemnation of 34 1/2 feet off the west end of the lot, abutting on the alley. The cause was tried by a jury, which, under the directions of the court, viewed the premises, and heard the evidence of the respective parties as to the compensation and damages, and fixed the amount at $3,992.20.

We have carefully considered the evidence relied upon by appellant as showing that this verdict is so inconsistent with the weight of the testimony as that the court below should have set it aside, and this court, for its failure to do so, should reverse the judgment. It has been often decided by this court that in cases of this kind, where the jury have viewed the premises, and the evidence is conflicting, we will not interfere with the verdict, unless it is so manifestly contraryto the preponderance of the evidence as to indicate misconduct on the part of the jury. See Railroad Co. v. Johnson, 159 Ill. 434, 42 N. E. 871, and cases cited.

But it is said the court erred in refusing to allow proof of certain elements of damage offered by appellant; that is to say, damages which would result to appellant's goods by being moved from the building, interruption in the business of appellant in packing, moving, and re-establishing his business, and the number and value of certain catalogues of the goods bought and sold by appellant. The general rule is that just compensation to the owner of private property taken or damaged for public use is to be measured by its fair, cash market value. We said in Dupuis v. Railway Co., 115 Ill. 99, 3 N. E. 721: ‘The fair market value would always give the owner just compensation, and that is all he is entitled to receive under the law. If the lots were devoted to some particular use, and, in consequence of such use, had an intrinsic value, the owner in such case, in order to get just compensation, would be entitled to recover whatever the lands were worth for the use or purpose to which they might be devoted.’ See Lewis, Em. Dom. § 478. This rule excludes all evidence as to the amount of business done, or which could be done, in the property, or the probable profits arising therefrom. Railway Co. v. Walsh, 106 Ill. 255. It is a general rule that damages to personal property, or the expense of removing it from the premises, cannot be considered in estimating the compensation to be paid. Lewis, Em. Dom. § 488, and authorities cited in note 4. In Railway Co. v. Hock, 118 Ill. 587, 9 N. E. 205, the...