Chicago v. Enos Ayres.

CourtSupreme Court of Illinois
Writing for the CourtWALKER
Citation1883 WL 10241,106 Ill. 511
Decision Date10 May 1883
PartiesCHICAGO AND WESTERN INDIANA RAILROAD COMPANYv.ENOS AYRES.

106 Ill. 511
1883 WL 10241 (Ill.)

CHICAGO AND WESTERN INDIANA RAILROAD COMPANY
v.
ENOS AYRES.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.


[106 Ill. 512]

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.

[106 Ill. 513]

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.

[106 Ill. 514]

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...

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35 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...is clear under our constitution. (Art. 1, Sec. 33; Pumpelly v. Canal Co., 13 Wall., 166; 2 Abb. Mun. Corp., 1837; R. R. Co. v. Ayres, 106 Ill. 511; Chicago v. Taylor, 125 U.S. 161; Mayor, &c., v. Herman, 16 So. 434; St. Louis v. Lang, 33 S.W. 54; Ogden v. Phila., 22 A. 694; O'Brien v. Phila......
  • King v. Vicksburg Ry. & Light Co.
    • United States
    • United States State Supreme Court of Mississippi
    • November 19, 1906
    ...Hall, 90 Ill. 42; Rigney v. Chicago, 102 Ill. 64; Chicago v. Union, etc., Ass'n, 102 Ill. 379; Chicago, etc., Railroad Company v. Ayers, 106 Ill. 511; Parker v. Catholic Bishop, 146 Ill. 158; East St. Louis v. O'Flynn, 119 Ill. 200; Chicago v. Burcky, 158 Ill. 103; L. E. & W. Railroad Co. v......
  • State v. Hale, No. 7176.
    • United States
    • Supreme Court of Texas
    • January 22, 1941
    ...v. City of Chicago, 102 Ill. 64; City of Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638; Chicago & W. I. R. Co. v. Ayres, 106 Ill. 511, 518; Mayor of City of Macon v. Daley, 2 Ga.App. 355, 58 S.E. 540; Dickerson v. Okolona, 98 Ark. 206, 135 S.W. 863, 36 L.R.A.,N.S., 1194; and se......
  • Pennsylvania Co. v. City of Chicago
    • United States
    • Illinois Supreme Court
    • October 16, 1899
    ...which can be determined and admeasured by a jury, without resort to the extraordinary remedy by injunction. Railroad Co. v. Ayres, 106 Ill. 511;Rigney v. City of Chicago, 102 Ill. 64; Railroad Co. v. Scott, 132 Ill. 429, 24 N. E. 78; Doane v. Railroad Co., supra. These complainants cannot, ......
  • Request a trial to view additional results
34 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...is clear under our constitution. (Art. 1, Sec. 33; Pumpelly v. Canal Co., 13 Wall., 166; 2 Abb. Mun. Corp., 1837; R. R. Co. v. Ayres, 106 Ill. 511; Chicago v. Taylor, 125 U.S. 161; Mayor, &c., v. Herman, 16 So. 434; St. Louis v. Lang, 33 S.W. 54; Ogden v. Phila., 22 A. 694; O'Brien v. Phila......
  • King v. Vicksburg Ry. & Light Co.
    • United States
    • United States State Supreme Court of Mississippi
    • November 19, 1906
    ...Hall, 90 Ill. 42; Rigney v. Chicago, 102 Ill. 64; Chicago v. Union, etc., Ass'n, 102 Ill. 379; Chicago, etc., Railroad Company v. Ayers, 106 Ill. 511; Parker v. Catholic Bishop, 146 Ill. 158; East St. Louis v. O'Flynn, 119 Ill. 200; Chicago v. Burcky, 158 Ill. 103; L. E. & W. Railroad Co. v......
  • State v. Hale, No. 7176.
    • United States
    • Supreme Court of Texas
    • January 22, 1941
    ...v. City of Chicago, 102 Ill. 64; City of Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638; Chicago & W. I. R. Co. v. Ayres, 106 Ill. 511, 518; Mayor of City of Macon v. Daley, 2 Ga.App. 355, 58 S.E. 540; Dickerson v. Okolona, 98 Ark. 206, 135 S.W. 863, 36 L.R.A.,N.S., 1194; and se......
  • Pennsylvania Co. v. City of Chicago
    • United States
    • Illinois Supreme Court
    • October 16, 1899
    ...which can be determined and admeasured by a jury, without resort to the extraordinary remedy by injunction. Railroad Co. v. Ayres, 106 Ill. 511;Rigney v. City of Chicago, 102 Ill. 64; Railroad Co. v. Scott, 132 Ill. 429, 24 N. E. 78; Doane v. Railroad Co., supra. These complainants cannot, ......
  • Request a trial to view additional results

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