City of Joliet v. Blower

• Decision Date: 01 April 1895
• Citation: 155 Ill. 414,40 N.E. 619
• Parties: CITY OF JOLIET v. BLOWER et al.
• Court: Illinois Supreme Court

155 Ill. 414

40 N.E. 619

CITY OF JOLIET

v.BLOWER et al.¹

Supreme Court of Illinois.

April 1, 1895.

Appeal from appellate court, Second district.

Action on the case by Emma Blower, Mary A. E. Cust, Helen H. Cust, Henry H. Cust, Walter M. Cust, and Robert Cust and Charles M. Cust, minors, by their next friend, Harriet Cust, against the city of Joliet. Plaintiffs obtained judgment, which was affirmed by the appellate court. 49 Ill. App. 464. Defendant appeals. Reversed.

Geo. S. House and J. W. D'Arcy, for appellant.

Egbert Phelps, for appellees.

Bluff street, in the city of Joliet, runs north and south along the base of a hill. Broadway is the next street west, and is on the top of the hill. Hickory street is the next street west of Broadway, and these streets are parallel with each other. Exchange street runs west from Bluff street, and intersects Broadway and Hickory. Lots 4 and 7, in block 14, in West Joliet, lie 60 feet north from Exchange street, between Broadway and Hickory. Lot 4 fronts on Broadway, and lot 7 lies north, and extends from the rear of lot 4 to Hickory. This is residence property, having a house on lot 4 and a barn on lot 7. In order to improve the grade on Exchange street, and avoid going up the steep hill to Broadway for travel from Bluff street to streets west of Broadway, the city some years ago cut down about two-thirds in width of Exchange street to the depth of about 15 feet, and carried Broadway over it with a bridge, but left the remainder of the street as a means of access from Broadway to Bluff street. There were then upper and lower roadways on Exchange street. A few years thereafter the city excavated the whole street to the depth of the lower roadway, removed the upper roadway, and cut off access to Exchange street from Broadway. Harriet H. Cust, the owner of a life estate in said property, brought suit to recover damages resulting to her estate in the property from the last excavation, by which the upper roadway was removed. Afterwards the appellees, who are owners of the remainder expectant upon the termination of the life estate, were admitted as plaintiffs, and the suit was dismissed as to Harriet H. Cust, and the declaration amended so as to seek a recovery for the injury to the remainder. There was a trial, resulting in a verdict for appellees for $1,000, on which judgment was entered. The judgment was subsequently affirmed in the appellate court.

BAKER, J. (after stating the facts).

Three grounds are urged for the reversal of the judgment:

1. It is claimed that there was error in the ruling of the trial court upon the instructions in regard to the matter of the liability of the city to respond to appellees in damages for so changing the grade of Exchange street as to prevent access from Broadway to it, and, by means of it, communication with the main and business portion of the city, whereby the property of appellees was depreciated in value. There was no substantial error in any of these rulings. It is well settled that, under the constitution and laws of this state, there is a right of action to recover compensation for the damage done to the property of appellees by changing the grade on Exchange street. Rigney v. City of Chicago, 102 Ill. 64; Railroad Co. v. Ayres, 106 Ill. 511;City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146.

2. There is a life estate in the premises for the life of Harriet H. Cust, mother of appellees, and appellees are the owners of the remainder in fee. Appellees introduced evidence tending to prove the damages to the property as an entirety, and then introduced testimony tending to prove the value of the interest of their mother in this damage, to be deducted from the entire damage, and leaving the balance as their damage. As a part of this testimony, they introduced the Northampton, the Carlyle, the London, the Equitable, and the Wigglesworth mortuary tables, and the testimony of an expert, who testified to computations based on said several tables. These tables, and the evidence of the expert, were objected to; and their admission in evidence over these objections is assigned as error. The standard and recognized mortuary or life tables are competent testimony, in connection with other evidence, for the purpose of showing the expectancy of life, and the present value of a life estate or annuity, and also in estimating damages, and in apportioning a burden or damage or benefit between a life tenant and the remainderman or reversioner. Such testimony is admissible as well before a jury in an action at law as before the chancellor in a suit in equity. But such tables do not furnish absolute and conclusive rules for the guidance of either court or jury, and the doctrine is that they are to be considered along with all the circumstances in proof, and given weight accordingly. Jackson v. Edwards, 7 Paige, 386; Williams' Case, 3 Bland, 186-221; Schell v. Plumb, 55 N. Y. 592;Sauter v. Railroad Co., 66 N. Y. 50;Wager v. Schuyler, 1 Wend. 553;Donaldson v. Railroad Co., 18 Iowa, 280;Walters v. Railroad Co., 41 Iowa, 71;Gallagher v. Railway Co., 67 Cal. 13, 6 Pac. 869;Railroad Co. v. Crosby, 74 Ga. 738;Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502; Railroad Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1;Scheffler v. Railway Co., 32 Minn. 518, 21 N. W. 711;Roose v. Perkins, 9 Neb. 304, 2 N. W. 715;City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41;Mills v. Catlin, 22 Vt. 98. There was no error in admitting in evidence the mortuary tables and the testimony of the expert.

3. We think, however, that the third ground of error relied upon is meritorious. The declaration alleges that ‘on or before the 24th day of December, A. D. 1891, pursuant to said order and under the directions of said defendant, said Exchange street, at its said intersectionwith Broadway, and for a long distance east and west from said intersection, was excavated, and the earth and stone removed therefrom, to a great depth, to wit, to the depth of eighteen (18) feet, and still so remains; and said bridge was also, pursuant to said order and direction, removed, and still so remains, thus severing Broadway into two parts, and rendering ingress and egress to and from said premises by way of Exchange and Broadway streets impossible, and greatly depreciating the value of said premises, and greatly damaging the said plaintiffs, to the great wrong and injury of the plaintiffs; and thereby depriving the said plaintiffs and occupants of said premises of the use of said Exchange street by way of Broadway, and of Broadway by way of Exchange street, as a means of passage to and from said premises, either for the use of vehicles or foot travelers, whereby the value of said premises was and is greatly damaged and reduced in value, and the said plaintiffs thereby damaged in a manner not common to the public at large, to the damage of the plaintiffs of five thousand dollars ($5,000); and therefore they bring suit,’ etc.

The evidence shows substantially this state of facts: The city had theretofore excavated the south 40 feet of Exchange street, and in so doing had protected each side of the excavation by a secure stone wall, and had continued Broadway over the cut or excavation by a bridge, and the...