Chicago North Shore St. Ry. Co. v. Payne

• Decision Date: 24 October 1901
• Citation: 192 Ill. 239,61 N.E. 467
• Parties: CHICAGO NORTH SHORE ST. RY. CO. v. PAYNE.
• Court: Illinois Supreme Court

192 Ill. 239

61 N.E. 467

CHICAGO NORTH SHORE ST. RY. CO.

v.PAYNE.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, First district.

Action by Honora A. Payne against the Chicago North Shore Street Railway Company. From a judgment of the appellate court (94 Ill. App. 466) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Graham H. Harris (W. W. Gurley and John A. Rose, of counsel), for appellant.

Julius & Lessing Rosenthal and James Jay Sheridan, for appellee.

CARTWRIGHT, J.

The branch appellate court for the First district affirmed a judgment for $2,000 recovered by appellee in the circuit court of Cook county against appellant in an action on the case for damages sustained through the erection and operation by appellant, on premises adjoining appellee's dwelling house, of an electric power house for the operation of its railroad. The power house was erected in 1893, and defendant commenced to operate it on June 10th of that year. The suit was commenced in June, 1894, and the declaration contained one count. At the trial on December 6, 1899, by leave of court, an additional count was filed, to which the defendant pleaded the statute of limitations of five years. The court sustained a demurrer to the plea, and the defendant excepted, and elected to stand by the plea. The sustaining of the demurrer to the additional count is assigned as error, and it is insisted that the count set up a new cause of action more than five years after it arose, by averring a permanent injury to the plaintiff's premises from the establishment and operation of the power house. The original declaration alleged that plaintiff was possessed of the lot and dwelling house thereon; that defendant erected and operated the power house, with its engines, dynamos, and machinery, causing vibrations, and loud and offensive noises in such operation, and from the pulling in and out of cars, and diffusing in and upon and through the dwelling house and premises dirty and offensive smoke, annoying and incommoding plaintiff and her family, servants, lodgers, and tenants in the possession, use, and occupation of her said house and premises; that she lost many lodgers and tenants, and was prevented from procuring others, and would thereafter lose many tenants and lodgers, and be prevented from procuring others; that the ceilings and walls of her said house were cracked, and pieces fell off; and that the value of the dwelling house, as well as the market value and rental value of her premises, was impaired, diminished, lessened, and reduced by means of said grievances so complained of. The additional count, to which the plea of the statute of limitations was interposed, was substantially the same as the original declaration, except that it alleged that the value of the dwelling house and the market value of the premises were ‘permanently’ impaired and diminished. The power house described in the original declaration, in its nature and use in furnishing power and pulling in and out cars in connection with defendant's railroad, was a permanent structure, which, it could not be assumed from the declaration, would be changed. It was apparently a permanent structure, although the defendant might change its location if it should see fit. City of Centralia v. Wright, 156 Ill. 561, 41 N. E. 217. Such structures of a railroad company, erected in pursuance of lawful authority for the uses of its road, are permanent structures. Railroad Co. v. Horan, 131 Ill. 288, 23 N. E. 621. The defendant, acting within its charter, had a legal right to maintain its power house at that place, and plaintiff had no lawful right to interfere or compel a change. In such a case, in legal contemplation, all damages which will be sustained as the effect of the act are sustained immediately, and the measure of damages is the depreciation in market value. The allegation of injury to the market value was an allegation of permanent injury. Depreciation in market value is not the measure of damages for a temporary injury which may be removed or abated. N. K. Fairbank Co. v. Nicolai, 167 Ill. 242, 47 N. E. 360. The declaration alleged injury to the value of the dwelling house and the market value of the premises in connection with averments of the establishment and operation of the power house as a permanent structure, and this was all that was necessary to authorize a recovery of all the damages. The declaration, when first filed, being sufficient to authorize a recovery as for a permanent injury, the new count did not set up a new cause of action, and the demurrer to the plea was properly sustained.

The next alleged error relied upon is that the court erred in admitting evidence of permanent injury to plaintiff's property. Counsel say that she could only recover damages on proof that the power house was improperly constructed, either as to location or mode of construction, or was negligently operated, or that its erection or maintenance was the exercise of the power of eminent domain; that there was neither pleading nor evidence of improper construction or negligent operation, and that she could not recover for a permanent injury, because the power house was not built under the power of eminent domain. Counsel are correct in saying that there was no charge of improper construction or negligent operation, and no evidence of either. Plaintiff sued for damages resulting from the establishment and operation of the power house adjoining her premises, without any charge of negligence. It is contended that, as defendant did not condemn the land, but bought it, and built the power house, it was not exercising the power of the state to take or damage private property for public use. In illustration of their argument, counsel say, if the power house had been built by the president of the road as an individual, and he had operated it, and sold the power to the defendant, the constitutional provision that private property should not be damaged for public use without just compensation could have no application, because he could not exercise the power of eminent domain; and that the act of the defendant was of the same character, and in a private capacity. The inquiry in this case is an immaterial one, since the plaintiff was suing only for damages. If the president or some other individual had built the power house, and operated it himself, and sold the power to defendant, the use would have been a private one, but the thing would have been a nuisance, and the owner of it liable as an individual. A private nuisance is ‘anything done to the hurt or annoyance of the lands, tenements, or hereditaments of...