City of Chicago v. the Wright
| Decision Date | 31 October 1883 |
| Parties | CITY OF CHICAGOv.THE WRIGHT AND LAWTHER OIL AND LEAD MFG. CO. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed February 12, 1884.
This is an appeal from a judgment for $50,000, recovered by appellee in the court below in an action on the case, for damages alleged to have been done to appellee's property by the construction of a viaduct by appellant on Polk street in said city. Prior to the construction of the viaduct, appellee, being the owner of lots having a frontage of about 150 feet on Polk street and 200 feet on Beach street, erected and fitted up at large expense, buildings for manufacturing linseed oil. The machinery, consisting of heavy presses resting on massive foundation, large tanks, steam engine boilers and other fixtures, was placed in the first or lower story of the building. In 1881, the city constructed a viaduct on Polk street over Beach street, the east approach of which was directly in front of appellee's building, and consisted of a solid embankment of earth and stone, the full width of the street, and about fourteen feet in height, thereby cutting off the light and means of access from Polk street to the main floor of the building.
Upon the trial, the court, against the objection of appellant, admitted in evidence an ordinance of the city, granting permission to the Chicago, Burlington & Quincy Railroad Company to construct and operate railroad tracks between West Harrison and West Twelfth streets. Sections three and four of the ordinance are as follows:
“Sec. 3. The permission and authority hereby granted are upon the express conditions that the said railroad company shall pay, or cause to be paid to the city of Chicago, the cost and expense of constructing and erecting a new viaduct on Polk street, over the railroad tracks crossing said street, between Canal street and the Polk street bridge, together with all proper lateral and other approaches necessary thereto, the money necessary therefor to be paid by said company as aforesaid, as fast as required by the city in paying for the construction and erection of said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repair to be done pursuant to the direction of the city council, under the supervision of the commissioner of public works, and the permission and authority hereby granted are upon the further express condition that the said railroad company shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its said tracks, on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require. Provided, however, that when any such viaduct, except said Polk street viaduct above provided for, can not be constructed across the tracks of said railroad company, without crossing the track or tracks of some other railroad company or companies, the said Chicago, Burlington, and Quincy Railroad Company, shall only be obliged to join such other railroad company or companies in paying the expense of erecting, constructing, maintaining and keeping in repair such viaduct and approaches, and to pay its fair proportion of such expense as between it and such other company or companies; and if such other railroad company or companies shall not join said Chicago, Burlington and Quincy Railroad Company in paying said expense, then, when the proportion of said other company or companies shall be otherwise provided, the said Chicago, Burlington and Quincy Railroad Company shall pay what would be its fair proportion of said expense, in case such other company or companies should join with it in the payment of said expense as aforesaid.
Said viaduct or viaducts, and approaches thereto, to be constructed according to the plans and specifications of the department of public works. Said Chicago, Burlington and Quincy Railroad Company shall furnish sufficient outlets for the private property bounded by Harrison street, Twelfth street, Beach street and the south branch of the Chicago river.
Sec. 4. The permission and authority hereby granted are upon the further express condition that the said railroad company shall and will forever indemnify and save harmless the city of Chicago against and from any and all legal damages, judgments, decrees and costs and expenses of the same which it may suffer or which may be recovered or obtained against said city, for or by reasons of, or growing out of, or resulting from, the passage of this ordinance, or any matter or thing connected therewith, or with the exercise by said company of the privilege hereby granted, or from any act or acts of said company under or by virtue of the provisions of this ordinance.”
Exceptions were duly taken by the defendant to the ruling of the court, admitting the ordinance in evidence.
It appears from the bill of exceptions, that while the plaintiff's counsel was arguing the case to the jury, he was proceeding to state that by the terms of the ordinance, the railroad company would have to pay whatever judgment the plaintiff might recover against the city, whereupon the defendant by its counsel interrupted plaintiff's counsel in his argument, and addressing himself to the court objected to the counsel for plaintiff making such statement to the jury, and insisted that the same was improper; but the court said that the ordinance being in evidence, plaintiff's counsel had the right to comment on it, and overruled the objection and allowed the counsel to continue his comment, to which ruling the defendant duly excepted.
The jury found for the plaintiff $50,000. The city brings the case to this court for review, and assigns various errors.
Mr. FRANCIS ADAMS, for appellant; that the damages are the real, substantial and permanent decrease in value, if any, caused by the construction of the viaduct, cited C. & P. R. R. Co. v. Francis, 70 Ill. 238; Page v. C., M. & St. P. R. R. Co., 70 Ill. 328; City of Shawneetown v. Mason, 82 Ill. 342; City of Elgin v. Eaton, 83 Ill. 537; C. & W. Ind. R. R. Co. v. Berg, 10 Bradwell, 607.
As to the rules of evidence applying where witnesses testify as to the value of real estate: 1 Greenleaf on Ev., 440, 576; Starkie on Ev., 10th ed., 172; Mills on Eminent Domain, 169; Whitman v. B. & Me. R. R. Co., 7 Allen, 316; Pinkham v. Chelmsford, 109 Mass. 225; Rochester, etc., R. R. Co. v. Budlong, 6 How. P. R. 467; Clark v. Baird, 5 Selden (9 N. Y.), 183; McCormick v. Penn. C. R. R. Co., 49 N. Y. 316; Jarvis v. Furman, 25 Hun, 391; Treespenning v. The Conn. Esc. Ins. Co., 43 N. Y. 279; Bedell v. Long I. R. R. Co., 44 N. Y. 367; White v. Hermann, 51 Ill. 243; Lycoming F. Ins. Co. v. Jackson, 83 Ill. 304; Ill. & Wis. R. R. Co. v. Van Horn, 18 Ill. 257; Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305; C. & A. R....
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