Chicago v. Mcginnis

• Decision Date: 30 September 1875
• Citation: 79 Ill. 269,1875 WL 8613
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.PATRICK MCGINNIS.
• Court: Illinois Supreme Court

79 Ill. 269

1875 WL 8613 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.PATRICK MCGINNIS.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding. The Ottawa, Oswego and Fox River Valley Railroad Company was chartered June 21, 1852. It constructed a railroad through the city of Ottawa. From the Illinois river, north, it passed over a public street, known as Walker street, in pursuance of an ordinance of the city council of the city of Ottawa, authorizing the construction of a railroad along that street. The plaintiff was the owner of lot 8, in block 1, in Walker's addition to Ottawa, which abutted upon that street, on which lot he had a dwelling house, in which he resided, and another smaller building, which he rented.

The lots were laid out before the street was dedicated, and no portion of the street was taken from these lots, so that the fee of the street was never in the plaintiff. The road was constructed and in operation along the street prior to the adoption of the present constitution of the State. The Ottawa, Oswego and Fox River Valley Railroad Company, on the 20th day of August, 1870, executed a lease of this road to the Chicago, Burlington and Quincy Railroad Company, and surrendered the possession thereof to the latter company on the 20th day of January, 1871, since which time the road has been operated by the last named company.

Plaintiff brought this suit against the Chicago, Burlington and Quincy Railroad Company, claiming damages to his premises aforesaid, arising from the construction of the road along the street, and the maintenance and operation of the road thereon. A trial had, resulted in a verdict and judgment against the defendant, and it prosecutes this appeal.

The track of the railroad in front of this lot is laid upon trestle work, extending from the railroad bridge across the Illinois river on the south, to a point several rods north of the lot. The top of the trestle work, at the south-east corner of the lot, is nine and one-third feet above the street, and thence north the height gradually decreases, until, at the north-east corner of the lot, it is about six feet above the street. This trestle work is the approach of the railroad to the railroad bridge across the river. From the east front of the lot to the west rail of the railroad, the distance is thirty-one feet, four inches. A short distance north of the lot is a passenger and freight depot, and trains stopping there were run down to and allowed to stand in front of appellee's premises. Dust, smoke and cinders from the cars and locomotives passing and standing upon the track, when there was an east wind, would be blown into appellee's houses and upon his premises. Vehicles were prevented, by the trestle work, from crossing the street, except at the south end, where they could pass under. These are plaintiff's chief causes of complaint.

Mr. B. C. COOK, for the appellant.

Mr. D. P. JONES, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

There are two questions here presented: one upon the rejection of the testimony, the other as to the rule of damages, adopted by the court below.

The court permitted the plaintiff to prove what, in the opinion of witnesses, the rental value of the place would have been without the railroad and what it was with the railroad. The defendant offered to prove, in cross-examination and by direct evidence, that there were a gas factory and a starch factory near the plaintiff's premises, which were offensive things, and made the premises undesirable for any one to occupy, and tended to depreciate their rental value.

The court excluded the...