Metro. West Side El. Ry. Co. v. Stickney

• Decision Date: 16 June 1894
• Citation: 37 N.E. 1098,150 Ill. 362
• Parties: METROPOLITAN WEST SIDE EL. RY. CO. v. STICKNEY et al.
• Court: Illinois Supreme Court

150 Ill. 362

37 N.E. 1098

METROPOLITAN WEST SIDE EL. RY. CO.

v.STICKNEY et al.¹

Supreme Court of Illinois.

June 16, 1894.

Appeal from circuit court, Cook county; E. F. Dunne, Judge.

Condemnation suit by the Metropolitan West Side Elevated Railway Company against Joseph A. Stickney, the Grant Manufacturing Company, and William Hett. There was judgment of condemnation and award of compensation. Plaintiff appeals. Reversed.

Magruder, J., dissenting.

E. J. Harkness (W. W. Gurley, Gen. Counsel), for appellant.

Elbert H. Gary, for all of appellees.

C. M. Walker, for appellee Stickney.

Geo. W. Stanford, for appellee

Hett.

T. H. Simmons, for appellee Grant Manuf'g Co.

SHOPE, J.

This was a proceeding instituted by the Metropolitan West Side Elevated Railway Company for condemnation of right of way across certain lots in the city of Chicago, owned by appellees in severalty; the Grant Manufacturing Company, appellee, having a leasehold interest in the property owned by appellee Stickney. A trial resulted in a verdict and judgment for damages to land taken, and for damages for the removal of buildings, and to the parts of the lots not taken, in severalty. Thus there is awarded the owners of the leasehold interest in lots 24, and the south 6 feet of lot 25, in Campbell's subdivision, etc., and ‘for costs of removal from said premises, and for damages by the interruption to the business, and for the value of the improvements in said premises, and for damages to the leasehold interest in the remainder of said premises not taken, to wit, the south 125 feet of lots 21, 22, 23, 24, 25, and 26 in said subdivision, the total sum of $5,150;’ and to the owner of the reversion, appellee Joseph A. Stickney, for his reversionary interest in the land taken, and for damages to the reversion in the south 125 feet of lots 21, 22, 23, 24, 25, and 26 in said subdivision, except lot 24 and the south 6 feet of lot 25, and in full for damages to lots 19 and 20, and to that portion of lot 26 not included in said leasehold interest, and to lots 27 and 32, both inclusive, all in said subdivision, the gross sum of $15,983; and to the owner (appellee William Ilett) of the south 30 feet of the north 67 feet of lots 1, 2, and 3 in block 2, Reed's subdivision, etc., as compensation for land taken and for damages to the remaining portion of said premises, to wit, said lots 1, 2, and 3, the gross sum of $16,465. Numerous errors are assigned, but we shall find it necessary to consider only those questioning the correctness of the ruling of the court in giving and refusing instructions. No question is raised as to the correctness of the ruling of the court that, as to the land taken for the proposed public improvement, the owner was entitled to recover its full value for the purpose to which it was devoted or of which it was susceptible. The questions that we shall consider relate solely to the compensation to be awarded for damages to the part of the land on lots not taken.

By the eleventh and twelfth instructions given for respondents the jury were told: ‘(11) The jury are instructed that if they find from the evidence that any of the respondents' property which is not taken will be damaged by reason of taking a part of their property, and by the construction, maintenance, and operation of the railroad, then the jury have no right to offset against such damages any benefits which may arise from the construction and operation of such railroad, unless the jury find from the evidence that such benefits are special to respondents' property, and not shared by it in common with the generallty of property in the vicinity of the line of said proposed railroad. Under the laws of this state, no benefits or advantages which may accrue to the property not taken, in common with all other property along or near or in the vicinity of the line of the proposed railroad, by reason of the construction and operation of said railroad, can be lawfully set off or deducted from the damages, if any, to the property not taken. (12) Even though the jury may believe from the evidence that some of the property of some of the respondents will be actually benefited by reason of the construction and operation of the petitioner's railroad, yet if the jury further believe from the evidence that such benefits are not special to the respondents' property, and are shared by it in common with the generality of property in the vicinity of the line of said proposed railroad, then such benefits are not to be considered in determining whether or not the property of said respondents, not taken, will be damaged by reason of taking a part of their property, and operating, constructing, and maintaining the petitioner's railroad.’ And the same was again said to the jury in the fourteenth, fifteenth, sixteenth, and twenty-first instructions given on their behalf. The giving of these several instructions is assigned for error.

The misapprehension of counsel in drawing, and the court in giving, the instructions, consists in that they fail to draw the distinction between benefits that are special to the property not taken and those by which it is specially benefited. Property may be specially benefited by an improvement, and at the same time other property upon the same improvement be likewise specially benefited. This may be illustrated by the assessing of special benefits for a local improvement. Presumably, all the property along the line of the improvement will be more or less specially benefited; that is, benefited beyond the generalbenefit supposed to diffuse itself from the improvement throughout the municipality ordering the improvement made. If property is enhanced in value by reason of the improvement, as distinguished from the general benefits to the whole community at large, it is said to be specially benefited, and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement, to a greater or less degree, may be likewise specially benefited. Wilson v. Board, 133 Ill. 443, 27 N. E. 203. In other words, it is not such benefit as is special to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly situated, but is such benefit as that the particular property is, by the improvement, enhanced in value; that is, specially benefited. Hence, the language of the twelfth instruction, ‘Yet, if the jury further believe from the evidence that such benefits are not special to the respondents' property, and are shared by it in common with the generality of property in the vicinity of the line of said proposed railroad, then such benefits are not to be considered,’ etc., does not announce the correct rule of law. So, in the use of the words, ‘and shared by it in common with the generality of the property,’ etc., there seems to be a confusion of ideas. If a piece of property in enhanced in value, such enhancement-or, in other words, benefit-to the property cannot be said to be common to any other piece of property. Each piece of property specially enhanced in value is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties. It follows necessarily that where the benefits are designated as ‘general benefits,’ ‘benefits common to other property,’ and the like expressions, to be found in decided cases, it is meant those general, intangible benefits which are suposed to flow to the general public from a public improvement. Thus, the paving of a street in a city may confer special benefits upon properties near it, by an increase in their value, and at the same time, by the convenience afforded the general public, confer a general benefit. So, a railroad built through a town or through the country may be a general benefit, by affording additional facilities for travel and commerce, and thereby be a benefit to the community at large. But the effect or such general benefits upon any particular piece of property would be impossible of ascertainment, and speculative; and it has always been held that such benefits are not to be considered, for that reason. Keeping these distinctions in view in the further discussion, it will be found that the numerous cases in this state, perhaps with a single exception, are in line.

While there is, perhaps, some confusion in the cases, it will be found that the measure of damages adopted in this state, as well as by the weight of authority elsewhere, is the difference in value in property before the proposed construction and what it will be afterwards. Hence, the effects flowing from the proposed work upon the particular property are to be considered; and if the value of the land not taken, considered as a part of the whole tract or separately, is equal to its value before the improvement, there is no damage to property not taken. This will become apparent by a slight review of the laws, as announced in the various cases.

Under the eminent domain law of 1845, damages were not allowable where an additional value was given to the land from the proposed improvement, equal to the injury occasioned. In other words, the general benefit to the owner's property was allowed to be set off against the damages to his property by reason of the taking a part thereof for the proposed improvement. Or, differently stated, in determining whether he was damaged, and the extent thereof, the general benefits to his property were to be considered. Railroad Co. v. Carpenter, 14 Ill. 190;Hayes v. Railroad Co., 54 Ill. 373; Railroad Co. v. Laurie, 63 Ill. 264.The act of 1852 provided for the appointment of commissioners in condemnation proceedings to fix compensation, etc. Section 5 of the act provided that after being sworn, etc., the commissioners should proceed, without delay, upon view and inspection of the premises, as well as upon hearing the allegations and proofs of the parties, to...