Illinois Cent. R. Co. v. Trs. of Sch. of Tp. No. 9 S

• Decision Date: 07 December 1904
• Citation: 72 N.E. 39,212 Ill. 406
• Parties: ILLINOIS CENT. R. CO. v. TRUSTEES OF SCHOOLS OF TP. NO. 9 S., R. 2 W. THIRD P. M., JACKSON COUNTY.
• Court: Illinois Supreme Court

212 Ill. 406

72 N.E. 39

ILLINOIS CENT. R. CO.

v.TRUSTEES OF SCHOOLS OF TP. NO. 9 S., R. 2 W. THIRD P. M., JACKSON COUNTY.

Supreme Court of Illinois.

Oct. 24, 1904.

On motion to modify, Dec. 7, 1904.

Appeal from Appellate Court, Fourth District.

Action by the trustees of schools of Township No. 9 south, range 2 west third P. M., in Jackson county, against the Illinois Central Railroad Company. Plaintiffs had judgment, which was affirmed by the Appellate Court (112 Ill. App. 488), and defendant appeals. Reversed.Sidney F. Andrews (J. M. Dickinson, of counsel), for appellant.

James H. Martin, for appellees.

CARTWRIGHT, J.

This action on the case was brought by the appellees, the trustees of schools, for the use of School District No. 2 in the city of Murphysboro, against appellant, in the circuit court of Jackson county, for damages to a tract of land containing two acres, in said city, on which there is a two-story brick schoolhouse occupied for a graded school, alleged to have been damaged by the operation of appellant's railroad adjoining said tract. The declaration averred that defendant constructed its railroad track south of said premises, and was maintaining and operating a railroad thereon, and charged that, in passing, the locomotive engines emitted, discharged, and threw out and stirred up great volumes of smoke, cinders, ashes, and dust, and cast the same over, upon, and into said premises, and that the trains caused loud and ominous noises, and made the ground tremble, vibrate, and shake, causingthe school in said premises to be disturbed and frequently to suspend. The plea was the general issue, and upon a trial there was a verdict for the plaintiffs for $2,500. Defendant moved for a new trial, whereupon plaintiffs remitted $700 from the verdict, and the court overruled the motion and entered judgment for $1,800. The Appellate Court for the Fourth District affirmed the judgment.

The railroad was constructed and operated on defendant's own premises adjoining the schoolhouse grounds, no part of which was taken for the use of the railroad, and there was no interference with any right of access or easement appurtenant to the land or constituting a part or parcel of it. The railroad was built in a natural depression, upon an embankment about 25 feet high, bringing the track about on a level with the first floor of the schoolhouse. There was some difference in the hours of the different grades, but the school hours, including all of them, were from about 9 o'clock to 12, and from about 1 o'clock to 4. During that time six or eight trains passed the premises. There was a single track with no switches, and the grade was 46 feet to the mile. The trains going downgrade caused little or no inconvenience to the school or premises, but it was claimed that damages were caused by trains going upgrade, and especially the freight trains. The railroad track was variously stated to be from 188 to 221 feet from the schoolhouse. There was no substantial or direct evidence that cinders, ashes, or dust were ever thrown on the premises from engines of the defendant. The school-teachers were examined as witnesses by the plaintiffs, and one of them, being asked whether cinders were cast upon the schoolhouse, replied that she did not know; that they had considerable cinders anyhow from the stoves in the schoolhouse. Another teacher, when asked if the trains emitted smoke or cinders, answered, ‘Oh, the trouble is not that so much,’ but she said there was some smoke. There were other witnesseswho were residents of Murphysboro, and one of them thought there would be some dust, and another that there would be smoke and cinders, but he said that he never saw any cinders, or knew that any were ever dropped on the property. Another said that he thought there would be a certain amount of soot in the air that would fall on the schoolhouse, but no witness testified that any dust or cinders or soot was ever cast upon the premises. There was some testimony that a jarring or vibration could be felt at the schoolhouse when heavy freight trains went up the grade; but whether it was atmospheric, or whatever its nature, there was no evidence whatever of any damage from that source. There was no evidence that the building or the walls were affected in any manner whatever, or that the building, which was about 12 rods from the railroad, was not as secure, safe, and sound as it ever was. Wrong and damage must concur, and there must be injury or damage, to justify a verdict on account of vibration. There was no evidence tending to prove any damage from that source, and in that respect the case is different from Chicago North Shore Street Railway Co. v. Payne, 192 Ill. 239, 61 N. E. 467, where the ceilings and walls of the dwelling house were cracked and pieces of the plastering fell off. With reference to smoke, the evidence was that occasionally, when the wind came from the direction of the railroad, the smoke would enter the rooms on the south side, facing the track, if the windows were open. Two of the teachers testified that they were not disturbed much by the smoke. The school year commenced in September, and ended the latter part of April. During most of that time the windows were closed, and there was no annoyance from smoke when they were closed. The evidence was that there was some slight annoyance from the smoke, but the principal damage, in the opinion of all the witnesses, was the noise made by the trains, which interfered with recitations in the school. The railroad consisted of a single track, and there was no switching or making up of trains opposite the premises. The evidence of the teachers was that, when a train passed, the children would turn to look at it or rise out of their seats, and in the case of heavy trains the noise would sometimes be so great as to compel a stoppage of recitations for a minute or two at a time. There were four passenger trains and two freight trains, together with an occasional extra freight and two trips of the yard engine, daily, during the school hours.

After examining the witnesses as to the effect on the premises of the operation of trains, none of whom testified as to value or damages, plaintiffs produced a number of witnesses, and asked them, on direct examination, to what extent the value of the schoolhouse premises was depreciated by the building and operation of defendant's railroad. These witnesses gave no specific reasons for fixing the damages, but testified that the school property before the railroad was built was worth $7,000 or $8,000, and some of them estimated the damages from $2,000 to $5,000, while others said they were damaged from one-third to 50 per cent. of the value. On cross-examination these witnesses were inquired of as to the injuries which formed the basis of their testimony as to damages. One estimate common to all of them was the noise made by the trains, which interfered with the school; and one said that the people were not getting the value of what they paid to the school-teachers because the work was interfered with. One estimate of damage included was attracting the attention of the school children during school hours and looking at the trains go by. Other witnesses had made the damage from the embankment obstructing the view a part of their estimate, and others the possibility of children getting on the track and being run over. They had all included in their estimates damages for which it is conceded there could be no recovery, and each of them testified that he was unable to state the amount of damages excluding those things for which there could be no recovery, such as attracting the attention of the school children, obstruction of the view, or the possibility of children being injured. It was made clear on the cross-examination that there was no testimony of those witnesses as to the amount of damages occasioned by smoke, cinders, dust, or other things for which damages could be recovered.

The court denied the motion, and allowed the testimony as to the amount of damages, ranging from $2,000 to $5,000, or from one-third to one-half the value of the property, to remain before the jury. In this the court erred. City of Chicago v. Spoor, 190 Ill. 340, 60 N. E. 540.

There are certain injuries to property for which the owner may recover damages although no part of the property itself is actually taken for the public use. While there is but little difficulty in laying down general rules concerning the nature of such injuries, there is sometimes much difficulty in applying them to particular cases and drawing a definite line between injuries for which the law allows a recovery and those for which it affords no remedy. The provision of the Constitution that private property shall not be damaged for public use was not intended to reach every possible injury that may be occasioned by a public improvement. There are certain injuries incident to ownership of property in towns or cities, which directly impair its value, for which the law does not afford, and never has afforded, any relief. Rigney v. City of Chicago, 102 Ill. 64. Those injuries are compensated for by the conveniences and advantages of civilization, and both injuries and benefits are common and public. Under the Constitution of 1848, which only allowed compensation for property taken for the public use, there were certain direct physical injuries to property, none of which was actually taken, which were held to be within the Constitution. Obstructing the natural flow of water, and turning it in increased quantity upon the lands of an individual, is an example (Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392,City of Aurora v. Gillett, 56 Ill. 132;City of Aurora v. Reed, 57 Ill. 29, 11 Am. Rep. 1;Toledo, Wabash & Western Railway Co. v. Morrison, 71 Ill. 616); also...