Chicago v. Enos Ayres.

Decision Date10 May 1883
Citation1883 WL 10241,106 Ill. 511
PartiesCHICAGO AND WESTERN INDIANA RAILROAD COMPANYv.ENOS AYRES.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Mr. CHARLES M. OSBORN, for the appellant:

There are many injurious consequences of the construction of a railroad on a public street that result to adjoining property, for which the owner of the property is not entitled to recover. Stone v. Fairbury, Pontiac and Northwestern R. R. Co. 68 Ill. 394; City of Shawneetown v. Mason, 82 Id. 387; Rigney v. City of Chicago, 102 Id. 64.

In an action brought to recover for the consequential damages to adjoining property from the construction and operation of a railroad in a public street, the general depreciation in the value of the property caused thereby is not the proper measure of damages, but the measure of damages should be limited to those injurious effects of the construction of the railroad which are specifically set forth in the declaration, and to such of those as are actionable. Chicago, Burlington and Quincy R. R. Co. v. McGinnis, 79 Ill. 272; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 Id. 42; Chicago and Eastern Illinois R. R. Co. v. Hall, 8 Bradw. 624; Chicago and Western Indiana R. R. Co. v. Berg, 10 Id. 624. When the property which is alleged to have been damaged by the construction of the railroad is a vacant, unimproved and unoccupied piece of land, the plaintiff, as in all other cases, must prove that real, actual injury has been done to it, as charged in the declaration, and the measure of damages must be the actual depreciation in the value of the property, caused by those real, actual injuries alone which the evidence offered shows it has suffered from the actionable causes stated in the declaration; and the general depreciation in its value from all causes, whether actionable or not, is an improper measure of damages.

Mr. H. O. MCDAID, for the appellee:

The construction and operation of appellant's railroad caused physical damages to appellee's property, for which he was entitled to recover a just compensation, under our present constitution. Story v. New York Elevated R. R. Co. 3 Abbott's N. C. 478.

An action lies for flooding lands, ( Nevins v. Peoria, 41 Ill. 511, Toledo, Wabash and Western Ry. Co. v. Morrison, 71 Id. 616,) or casting smoke, ashes and cinders thereon. ( Rigney v. Chicago, 102 Ill. 64.) Also, for constructing a railway upon a street where, as in this case, the abutting proprietor owned the street, subject to the public easement. Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 439.

As to the meaning of “physical damages,” and “direct physical damages,” see Stone v. Fairbury, Pontiac and Northwestern R. R. Co. 68 Ill. 394; Chicago, Milwaukee and St. Paul R. R. Co. v. Hall, 90 Id. 41; Cleveland v. Citizens' Gas Light Co. 20 N. J. Eq. 205; Wahle v. Reinback, 76 Ill. 326.

The plaintiff, by his action, in effect consents that the burden may be imposed on his land forever. J. M. & I. R. R. Co. v. Esterle, 13 Bush, 638; Central Branch Union Pacific R. R. Co. v. Andrews, 26 Kan. 711; Decatur Gas Co. v. Howell, 92 Ill. 19. In cases of this character it is not competent to compel proceedings under the Eminent Domain act. Stetson v. Chicago and Eastern Illinois R. R. Co. 75 Ill. 75.

There being no remedy under the statute of eminent domain, the person whose property is injured is compelled to bring a common law action. Cooley's Const. Lim. 543; Eaton v. Boston Ry. Co. 51 N. H. 404; City of Elgin v. Eaton, 83 Ill. 536; Grand Rapids and Indiana R. R. Co. v. Heisel, 47 Mich. 393.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant obtained permission from the authorities of the town of Lake for the purpose of constructing its railroad in a public road or street of the town, which was sixty-six feet in width. It was designated as Wallace street. Appellee owned a tract of ground, originally ten acres, but by sales reduced in quantity to about seven and one-half acres. It fronted upon, and was bounded by, Forty-ninth street on the north, and Wallace street on the east, and the road ran in front of this property for a distance of three hundred and forty-two feet, and then deflected on other lands. Wallace street, prior to this time, was traveled and used as a common country road, for general travel. In 1879 appellant constructed a single track along this road in the front of this property, and in 1880 the company put in another track by the side of the other, and raised the road about a foot and a half, and the edge of the track in front of appellee's land was about five feet west of the center of the street, thus leaving about twenty-eight feet between the railroad track and the front of appellee's land, and the track was about two and one-half feet above the common level. The land of appellee had been fenced, but the fences had gone to decay, and it was practically vacant. There was, however, a person who had built a cattle pen on it, and used the same for confining his cattle, and he pastured them on the land, and appellee requested that person to hold the possession for him. In August, 1881, appellee sold from the north end of his tenacre tract a strip one hundred and twenty-four feet in width, for right of way, to the Chicago and Grand Trunk railway, and prior to the commencement of this suit that company had laid a track, and was operating it, on this strip, thus cutting off appellee's access to Forty-ninth street. Thus he was left with about seven and one-half acres at the time he brought this suit, in September, 1881. The action was case, and he averred in his declaration that he owned in fee; that appellant “wrongfully, injuriously and unjustly entered upon Wallace street, directly in front of plaintiff's property, and constructed railway tracks directly in front of plaintiff's property, and has operated the same with engines, cars, etc., and caused ashes, dust, smoke, cinders, fire, sparks, and other noxious and unhealthy substances, to be thrown on the land, etc., and that by means of the construction and maintenance of the railroad tracks and obstructions on the street, access to and from appellee's property is cut off, and the use of the street is destroyed as a public highway, and appellee is denied the use thereof, and prevented the ordinary use thereof in front of his property.” A trial was had by the court without a jury, by consent. After hearing the evidence, the court found for the plaintiff, assessed his damages at $3000, and after overruling a motion for a new trial, rendered a judgment in his favor for that sum. The case was removed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and the case is brought to this court by appeal.

The right to recover damages for the injury to private property, occasioned by the taking of other property for public use, if not conferred, is secured by the 13th section of article 2 of our constitution. It provides that “private property shall not be taken or damaged for public use without just compensation.” It...

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