City of Chicago v. Jackson

• Decision Date: 16 April 1902
• Citation: 196 Ill. 496,63 N.E. 1013
• Parties: CITY OF CHICAGO v. JACKSON.
• Court: Illinois Supreme Court

196 Ill. 496

63 N.E. 1013

CITY OF CHICAGO

v.JACKSON.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by John Jackson against the city of Chicago. From a judgment of the appellate court (88 Ill. App. 130) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Charles M. Walker, Corp. Counsel, and Thomas J. Sutherland, for appellant.

Hamlin & Boyden, Louis M. Greeley, and H. S. Mecartney, for appellee.

PER CURIAM.

This action on the case was brought in the superior court of Cook county by appellee against appellant to recover damages for an injury to property fronting on West Fortieth street. In his declaration he avers that his property fronted on said street, and that prior to the acts complained of there was direct and convenient access to the same from the street, as well as egress therefrom, for persons and vehicles; that the street in front of the premises was level, and on the same grade with the street. He then avers that the defendant, regardless of the rights of the plaintiff, in the year 1895 wrongfully excavated, or caused to be excavated, the said street in front and adjacent to his premises, and constructed therein a subway of wood, stone, iron, and other materials, of great depth below the grade of the street as it existed prior thereto (describing the depression of the street and construction of the subway), and charges that by means thereof the free and convenient access to his premises, and free communication between said premises and the street, have been entirely destroyed and cut off, and the said premises rendered unfit for the uses to which they were best adapted and for which they are most valuable, and the reasonable enjoyment and use of the same seriously interfered with, by means of which his rights in the premises have been violated, etc. He further avers that the excavation and subway were without his consent, and without making any compensation to him for the damages and injury occasioned, and without any proceedings to ascertain such damages as provided by law, and that the defendant has refused and still refuses to make such compensation. The city filed a plea of not guilty, upon which issue was joined, and the case tried by the jury. At the close of all the evidence the defendant asked the court to instruct the jury to return a verdict in its favor, but the request was denied, and an exception duly taken. The jury was then instructed that ‘if they believed from the evidence that the plaintiff's property was depreciated in its fair cash market value by the change of grade in the street, over and above any benefit conferred upon the property by the improvement, taken as a whole, they should find the defendant guilty, and assess the plaintiff's damages at such sum as they believed, from the evidence and under the instructions of the court, such property had been depreciated in its fair cash market value by reason of such change of grade.’ To the giving of this instruction the defendant also duly excepted. A verdict was returned in favor of the plaintiff, fixing his damages at $2,000, upon which the superior court, after overruling a motion for new trial, entered judgment. The city appealed to the appellate court for the First district, where the judgment was affirmed, and it now prosecutes this further appeal.

It appeared from an ordinance of the city introduced in evidence upon the trial, passed February 18, 1895, that the Chicago & Northwestern Railway Company was required to elevate the plane of its roadbed and tracks across this and other streets so as to obviate the grade crossings; that company having, at the time, its railroad track across the streets on the same level. The ordinance describes at length the required elevation of the railroad tracks, and provides (section 4) for subways changing the grade of the street, as follows: ‘At * * * the above named streets and avenues [West Fortieth street being one of the streets named], subways therein shall be constructed, passing through said embankments and beneath said tracks so to be elevated as aforesaid, as follows: * * * All of which said subways shall generally conform to the descriptions and dimensions contained in a schedule hereunto annexed and made part of this ordinance, entitled ‘Schedule of Sub-Ways.” The schedule of subways describes the manner in which the excavations shall be made, how the subways shall be constructed, etc. Section 15 provides that ‘when said railway shall be elevated in accordance with the provisions of this ordinance, or when any section thereof shall be so elevated and ready for use, then and thereupon all provisions of the ordinances of the city relating to speed of railway trains in said city, the giving of signals upon such trains, and the maintenance of gates, flagmen, watchmen, signals and signal-towers, shall cease to be applicable to such railway company so far as the lines of said road shall be elevated as herein required.’ Section 16 provides that the ordinance shall take effect from and after its passage, approval, and publication, provided that it shall be null and void unless said railway company shall, through its authorized officers, file with the mayor of the city, within 60 days from the passage of the ordinance, an agreement, duly executed, whereby said railway company shall undertake to do and perform all the matters and things required of it by the ordinance, which ‘agreement by said railway company shall be made as a return for any liabilities * * * against it for any damages to adjacent property or business in consequence of change of grade of streets, avenues, alleys or the reilway, or of the performance by the railway company of the matters and things in this ordinance required of the railway, and which agreement shall be held to relieve and protect said company from all liability to said city or others for such damages to adjacent property or business in consequence of change of grade of streets, avenues, alleys or the railway, or of the performance by the railway company of the matters and things in this ordinance required of it, save that for any damages occasioned by the negligent manner of doing said work by said company it shall be liable. After the filing of said agreement, as aforesaid, this ordinance shall not be materially modified or amended without the consent of said railway company, but nothing in this ordinance contained shall be deemed a waiver or surrender of the police power of the city or to deprive the city of the right to properly exercise such power.’ It further appears that the railway company did accept the provisions of the ordinance, and elevated its tracks in conformity with the provisions thereof, making the subways as therein provided.

The plaintiff's property described in the declaration is situated on the south side of the railroad, fronting on said street; there being an alley between it and the right of way of the railroad company. The improvement was a two-story brick building; the first story being occupied as a saloon, and the second story for roomers. The first floor, prior to the excavation, was nearly on a level with the street. In making the subway the railroad company cut down the street in front of the building, so that the sidewalk is now four feet above the roadway, and the floor of the building four feet above the sidewalk, making the floor eight feet above the grade of the street, and requiring seven steps in the sidewalk at the northwest corner of plaintiff's building, and seven steps from the sidewalk in order to reach the level of the first floor of the house. It is not denied by the city that the property was damaged in the manner alleged.

The theory of the plaintiff's case is that the city having thus changed the grade of the street, or caused the same to be done, so as to damage his property, he is entitled to recover under that provision of the constitution which provides, ‘Private property shall not be taken or damaged for public use without just compensation.’ The city insists there can be no recovery, for the reason that ‘private property has not been taken for public use,’ but that whatever injury has been done to plaintiff's property is the result of the legitimate exercise of the police power of the state, and the damages damnum absque injuria. Therefore, it is insisted, it was error in the trial court to refuse the peremptory instruction to find for the defendant, and to give instruction No. 1 on behalf of the plaintiff. The question in this form is a new one in this state, and, so far as we have been able to ascertain, has never been directly decided by any court. It is a question of the first importance both to the city and property holders upon streets over which the railroads in the city must be elevated, in the interest of the public safety to life and property.

It would seem from section 15 of the foregoing ordinance that the improvement was made rather by the agreement of parties than by the order or command of the city, and that both parties understood and contemplateddamages to private property as a result of the work. That section is wholly inconsistent with the idea that the tracks of the railroad were elevated and the subway constructed in obedience to a requirement of the city in the exercise of its police power. But aside from any question of that kind, we think the judgments of the superior and appellate courts on this branch of the case must be affirmed. It is conceded by all parties that the municipality had the right, in the legal exercise of its police power within reasonable limits, to require the railroad company to elevate its tracks so as to avoid the grade crossing upon the street, and thus protect the lives and property of its citizens. Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109;New York & N. E. R. Co. v. Town of Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269;Chicago, B....