Lewis v. Englewood Elevated R. Co.

• Decision Date: 23 October 1906
• Citation: 223 Ill. 223,79 N.E. 44
• Parties: LEWIS et al v. ENGLEWOOD ELEVATED R. CO.
• Court: Illinois Supreme Court

223 Ill. 223

79 N.E. 44

LEWIS et al

v.ENGLEWOOD ELEVATED R. CO.

Supreme Court of Illinois.

Oct. 23, 1906.

Appeal from Circuit Court, Cook County; R. S. Tuthill, Judge.

Condemnation proceedings by the Englewood Elevated Railroad Company against Nancy Lewis and others. From the judgment for damages, defendants appeal. Reversed.Phelps & Cleland, for appellants.

Francis W. Walker and Edward C. Nichols (Noble B. Judah, of counsel), for appellee.

This is a condemnation proceeding begun by appellee, the Englewood Elevated Railroad Company, to condemn a strip of land belonging to appellants, situated in Henry B. Lewis' subdivision of lots 2, 6, and 7 of block 3, Linden Grove subdivision of the northwest quarter of section 21, town 38 north, range 14 east, of the third principal meridian, in Cook county. The land originally consisted of four lots, bounded on the north by Sixty-Third street, on the west by Lowe avenue, on the east by Wallace street, and on the south by a tract of land occupied by the Nichols coal yards, and was owned by Henry B. Lewis. It was 300 feet from north to south and about 235 feet from east to west in area. Lewis subdivided this tract into 20 lots, of which 1 to 8 fronted on Sixty-Third street, 9 to 14 on Lowe avenue, and 15 to 20 on Wallace street. The Western Indiana Railroad Company occupied all of Wallace street and the east 16 or 17 feet of an alley extending north and south along the entire east front of the property in question. Across the rear of the lots fronting on Sixty-Third street was an alley 14 feet wide and to be left open to a height of not less than 14 feet; also a north and south private alley 14 feet wide was platted across the rear ends of the lots fronting on Wallace street. Access was thus given to the front and rear of all the lots in said tract. Soon after this plat was made Lewis sold lots 2, 7, and 8, fronting on Sixty-Third street, lot 9, except the north two feet thereof, fronting on Lowe avenue, and lot 20, fronting east on the alley adjoining Wallace street. This left Lewis owning lots 3, 4, 5, and 6 on Sixty-Third street, with a frontage of 106 feet, 10, 11, 12, 13, and 14 on Lowe avenue with a frontage of 156 feet, and 15, 16, 17, 18, and 19, with a frontage of 136 feet on the alley adjoining Wallace street. Lewis died before this proceeding was begun, and the property is now owned by appellants. The land sought to be condemned was a strip east and west through the lots fronting on Lowe avenue and Wallace street, and took all of lot 16 and the south 19 feet of 17 fronting on Wallace street, and the north 22 feet of lot 13, and the south 6 feet of lot 12 fronting on Lowe avenue. The only improvements on the parts of lots 12 and 13 taken is a part of a stable which is built on the rear of lot 14 and extends over on lot 13. This stable was used by the commission men, who kept horses. Lot 16 and that part of lot 17 proposed to be taken was improved by a frame one-story barn, 75 feet long, 44 feet wide, and 18 feet high, with a shed at its west end near the alley. The barn had a driveway through the center, and one side was divided into bins, storerooms, office, and platform scales. It was built in 1893 from second-hand material and was used as a hay barn. The shed in the rear was about 12 feet long and 8 feet high and was used for the horses. This barn and shed are wholly on the property taken by the elevated railroad company.

The land belonging to appellants which is not taken by this proceeding is improved as follows: Lot 14 and the south 6 feet of lot 13 has a portion of the stable above referred to, which begins near the south side of lot 14 and extends north a distance of about 60 feet. On the southwest part of lot 14 is a small cottage. There are no improvements on lot 15, which has recently been rented to the Nichols Coal Company. A six-foot sewer from the Lowe avenue property crosses on the line between lots 17 and 18 of the Wallace street property. Lots 18 and 19 are unimproved, with the exception of a small temporary one-story frame building which is used for a blacksmith's shop. The 80 feet frontage on Lowe avenue immediately north of the proposed improvement, being lots 10, 11, and the north 22 feet of lot 12, are improved by four one-story brick buildings constructed in the spring of 1900. They each have 20 feet front, are 85 feet deep, with basement and elevators, have loading platform in rear, and were used for carrying on a commission business. The two-foot strip of property on Lowe avenue is not improved. Upon the lots fronting on Sixty-Third street, which are 114 feet deep, are located six stores; the first four on the east being built in 1892 and the other two in 1893. They are 50 feet deep, with basements under them, are frame, and one story high. The two west ones have a frontage of 15 feet each, and are now occupied by Weber & Co. in connection with their wholesale grocery store. The next one has 15 feet frontage, and the three stores on the east have each 20 feet frontage, and are used for the commission business. Lot 1 owned by appellants is taken up by the Western Indiana Railroad Company and the alley extending north and south. The jury found the damages for land taken to be $4,400, and that the land not taken was not damaged. From the judgment on the verdict this appeal is prosecuted.

FARMER, J. (after stating the facts).

The evidence as to the value of the property taken was, as is not unusual in such cases, conflicting. Appellants contend it was especially valuable on account of the use for which it was intended and adapted and for which a considerable portion of it had been used for some years. This particular use was for stores for men engaged in the commission business. Numerous errors are assigned as reasons for a reversal of this judgment, among which is that the damages assessed for property taken is too low and not supported by the evidence. Each side called...