City of Chicago v. Taylor

• Citation: 125 U.S. 161,31 L.Ed. 638,8 S.Ct. 820
• Parties: CITY OF CHICAGO v. TAYLOR et al
• Decision Date: 19 March 1888
• Court: United States Supreme Court

125 U.S. 161

8 S.Ct. 820

31 L.Ed. 638

CITY OF CHICAGO v. TAYLOR et al.

March 19, 1888.

Frederick S. Winston, Jr., for plaintiff in error.

G. A. Follansbee, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

Before noticing the assignments of error, it will be well to ascertain what principles have been announced by this court, or by the supreme court of Illinois, in respect to the liability of municipal or other corporations in that state for damages resulting to owners of private property from the alteration or improvement, under legislative authority, of streets and other public highways. By the constitution of Illinois, adopted in 1848, it was provided that no man's property shall 'be taken or applied to public use without just compensation being made to him.' Article 13, § 11. While this constitution was in force, Chicago commenced, and substantially completed, a tunnel under Chicago river, along the line of LaSalle street, in that city. It was sued for damages by the Northern Transportation Company, owning a line of steamers running between Ogdensburg, New York, and Chicago, and also a lot in the latter city, with dock and wharfage privileges; the principal injury of which it complained being that during the proe cution of the work by the city it was deprived of access to its premises, both on the side of the river and on that of the street. This court, in Transportation Co. v. Chicago, 99 U. S. 635, 641, held that in making the improvement of which the plaintiff complained the city was the agent of the state, performing a public duty imposed by the legislature; and that 'persons appointed or authorized by law to make or improve a highway are not responsible for consequential damages, if they act within their jurisdiction, and with care and skill, is a doctrien almost universally accepted, alike in England and in this county;' citing numerous cases, among others, Smith v. Corporation of Washington, 20 How. 135. 'The decisions to which we have referred,' the court continued, 'were made in view of magna charta, and the restriction to be found in the constitution of every state that private property shall not be taken for public use without just compensation being made; but acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner os such property to compensation from the state or its agents, or give him any right of action.' This view, the court further said, was not in conflict with the doctrine announced in Pumpelly v. Green Bay Co., 13 Wall. 166, which was a case of the permanent flooding of private property, a physical invasion of the real estate of the private owner, a practical ouster of his possession. In City of Chicago v. Rumsey, 87 Ill. 348, 363, the supreme court of Illinois, upon a full review of previous decisions, and especially referring to Moses v. Railroad Co., 21 Ill. 516; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Ill. 279; Stone v. Railroad Co., 68 Ill. 394; Stetson v. Railroad Co., 75 Ill. 74; and Railroad Co. v. McGinnis, 79 Ill. 269,—held it to have been the settled law of that state, up to the time of the adoption of the constitution of 1870, that there could be 'no recovery by an adjacent property holder, on streets the fee whereof is in the city for the merely consequential damages resulting from the character of the improvements made in the streets, provided such improvement has the sanction of the legislature.'

But the present case arose under, and must be determined with reference to, the constitution of Illinois adopted in 1870, in which the prohibition against the appropriation or private property for public use, without compensation, is declared in different words from those employed in the constitution of 1848. The provision in the existing constitution is that 'private property shall not be taken or damaged for public use without just compensation.' An important inquiry in the present case is as to the meaning of the word 'damaged' in this clause. The earliest case in Illinois in which this question was first directly made and considered, is Rigney v. City of Chicago, 102 Ill. 64, 74, 80. That was an action to recover damages sustained by the plaintiff by reason of the construction by Chicago of a viaduct or bridge along Halstead street and across Kinzie street, in that city, some 220 feet west of his premises, fronting on the latter street. There was no claim that the plaintiff's possession was disturbed, or that any direct physical injury was done to his premises by the structure in question. But the complaint was that his communication with Halstead street, by way of Kinsey street, had been cut off, whereby he was deprived of a public right enjoyed by him in connection with his premises, and an injury inflicted upon him in excess of that sustained by the public. For that special injury, in excess of the injury done to others, he brought suit. The trial court peremptorily instructed the jury to find for the city, holding, in effect, that, the fee of the streets being in the city, there could be no recovery for the obstruction of which the plaintiff complained. That judgment was reversed, an elaborate opinion being delivered, reviewing the principal cases under the constitution of 1848, and referring to the adjudications in the courts of other states upon the general question as to what amounts to a taking of private property for public use within the meaning of such a provision as that contained in the former constitution of Illinois. After alluding to the decisions of other state courts to the effect that such a provision extended only to an actual appropriation of property by the state, and did not embrace consequential injuries, although what was done resulted, substantially, in depriving the owner of its use, the supreme court of Illinois reviewed numerous cases determined by it under the constitution of 1848. Nevins v. City of Peoria, 41 Ill. 502, (decided in 1866;) Gillham v. Railroad Co., 49 Ill. 484; City of Aurora v. Gillett, 56 Ill. 132; Same v. Reed, 57 Ill. 29; City of Jacksonville v. Lambert, 62 Ill. 519; Railway Co. v. Morrison, 71 Ill. 616. It says: 'Whatever, therefore, may be the rule in other states, it clearly appears from this review of the case that, previous to and at the time of the adoption of the present constitution, it was the settled doctrine of this court that any actual physical injury to private property by reason of the erection, construction, or operation of a public improvementin or along a public street or highway, whereby its appropriate use or enjoyment was materially interrupted, or its value substantially impaired, was regarded as a taking of private property, within the meaning of the constitution, to the extent of the damages thereby occasioned, and actions for such injuries were uniformly sustained.' Touching the provision in the constitution of 1870, the court said that the framers of that instrument evidently had in view the giving of greater security to private rights by giving relief in cases of hardship not covered by the preceding constitution, and for that purpose extended the right to compensation to those whose property had been 'damaged' for public use; that the introduction of that word, so far from being superfluous or accidental, indicated a deliberate purpose to make a change in the organic law of the state, and abolished the old test of direct physical injury to the corpus or subject of the property affected. The new rule of civil conduct, introduced by the present constitution, the court adjudged,...