Rigney v. the City of Chicago.

Decision Date31 March 1882
Citation1881 WL 14535,102 Ill. 64
CourtIllinois Supreme Court


APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.

Messrs. STILES & LEWIS, for the appellant:

If there is evidence tending to establish the plaintiff's right to recover, it is error to instruct the jury to find for the defendant. Pemberton v. Williams, 87 Ill. 15; Guerdon v. Corbett, 87 Id. 272; Hubner v. Feige, 90 Id. 208. Property consists of certain rights in things secured by law. These rights are usually defined to be the right of user, the right of exclusion, and the right of disposition. In a strict sense land is not property, but the subject of property. 3 Bentham's Works, (Edinburg,) 1843, p. 221; Eaton v. Railroad, 51 N. H. 504; Morrison v. Sample, 6 Binn. 94; 2 Austin's Jurisprudence, sec. 836.

That this is the sense of the word as used in the constitution, see Eaton v. B. M. and C. R. R. Co. 51 N. H. 504; Wynehamer v. People, 13 N. Y. 378; Walker v. O. C. W. R. R. Co. 103 Mass. 10; Thompson v. Androscoggin Imp. Co. 54 N. H. 545; Evansville and Crawfordsville R. R. Co. v. Dick, 9 Ind. 433; Lee v. Pembroke Iron Co. 57 Me. 481.

The water of a stream can not be obstructed or diverted for the purpose of supplying a town or feeding a canal, without compensation is made to those who are injured. Stein v. Burden, 24 Ala. (N. S.) 130; Burden v. Stein, 27 Id. 104; Denslow v. New Haven and Northampton Co. 16 Conn. 98; Heilman v. Union Canal Co.50 Pa. St. 268.

Any injury to land which deprives the owner of the ordinary use of it, is equivalent to a taking of the land. Hooker v. New Haven and Northampton Co. 14 Conn. 146; Same v. Same, 15 Id. 312; Pumpelly v. Green Bay Co. 13 Wall. 166; Arimond v. Green Bay Co. 31 Wis. 316; Pettigrew v. Village of Evansville, 25 Id. 223; Bowman v. City of New Orleans, 27 La. Ann. 501; Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Gillett, 56 Id. 132; Same v. Keed, 57 Id. 29; City of Jacksonville v. Lambert, 62 Id. 519; City of Dixon v. Baker, 65 Id. 518; Gillham v. Madison County R. R. Co. 49 Id. 484; T. W. and W. Ry. Co. v. Morrison, 71 Id. 616.

That the word “damaged,” in the constitution, is equivalent to the words ““injuriously affected,” or “injured,” see Hall v. Mayor of Bristol, L. R. 2 C. P. 322; East and West India Docks Co. v. Gattke, 3 McN. & G. 155; New River Co. v. Johnson, 2 E. & B. 434; 105 E. C. L. R. 434; Rickett's case, 2 Eng. and Irish App. 193; Columbia Delaware Bridge Co. v. Geisse, 35 N. J. Law, 558; Ashby v. White, 1 Smith's L. Ca. 252; Queen v. Eastern Counties Ry. Co. 2 A. & E. N. S. 347; 42 E. C. L. R. 706; Queen v. Great Northern Ry. Co. 14 Q. B. N. S. 25; 68 E. C. L. R. 24; Glover v. Staffordshire Ry. Co. 16 Q. B. 912; Wood v. Stourbridge Ry. Co. 16 C. B. N. S. 222; Eagle v. Charing Cross Ry. Co. 2 L. R. C. P. 638; Queen v. Vestry of St. Luke's,L. R. 6 Q. B. 572.

This court has decided that damages done to abutting property by obstructing access thereto, by raising or lowering the grade of the street in front of it, are within the scope of the constitutional provision. Brereton's case, 67 Ill. 477; Winkel's case, 77 Id. 56; Eaton's case, 83 Id. 535.

Such damages were not recoverable prior to 1870. Moses v. Ry. Co. 21 Ill. 516; Roberts v. City of Chicago, 26 Id. 249; Murphy v. Chicago, 29 Id. 279; City of Quincy v. Jones, 76 Id. 231.

Mr. FRANCIS ADAMS, for the appellee:

The city having lawful authority to construct the viaduct, is not liable for making the same, using due care and skill. Cooley on Const. Lim. 542, and notes; Dillon on Mun. Corp. sec. 781; Northern Transportation Co. v. Chicago, 99 U. S. 635; Richardson v. Vermont Central R. R. Co. 25 Vt. 465; O'Connor v. Pittsburg,18 Pa. St. 187; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Id. 280; City of Quincy v. Jones et al. 76 Id. 238; Chicago, Burlington and Quincy R. R. Co. v. McGinnis, 79 Id. 269.

The construction of the viaduct and its approaches was a mere elevation of the grade of the street, which the city was authorized to make, and in the absence of negligence there is no liability. Roberts v. Chicago, 26 Ill. 249; Nevins v. City of Peoria, 41 Id. 514; O'Conner v. Pittsburg,18 Pa. St. 187; City of Chicago v. Rumsey, 87 Ill. 363. Lands merely injuriously affected are not taken, within the meaning of the constitution. Richardson et al. v. Vermont Central R. R. Co. 25 Vt. 475; Cooley's Const. Lim. 541-2.

That appellant was not entitled to recover by reason of the words “or damaged,” in sec. 13, art. 2, of the constitution, see Nevins v. City of Peoria, 41 Ill. 514; City of Quincy v. Jones et al. 76 Id. 231; City of Shawneetown v. Mason et al. 82 Id. 337.

As to the proper meaning of the word “damaged:” Bouvier's Law Dic.; Burrill's Law Dic.; Broom's Maxims, 195.

There being no direct physical injury, appellant can not recover. Stone v. Fairbury, Pontiac and Northwestern R. R. Co. 68 Ill. 394; Stetson v. Chicago and Evanston R. R. Co. 75 Id. 74; Chicago v. Rumsey, 87 Id. 348; C. C. and St. Paul R. R. Co. v. Hall, 90 Id. 42; C. B. and Q. R. R. Co. v. McGinnis, 79 Id. 273.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action on the case, instituted by appellant against appellee, in the circuit court of Cook county, on the 14th day of July, 1875, for the purpose of recovering damages alleged to have been sustained by the plaintiff by reason of the construction by the city of a viaduct or bridge along Halsted and across Kinzie streets, at their intersection, some 220 feet west of plaintiff's premises, fronting on Kinzie street. There was a trial on the merits, before the court and a jury, resulting in a verdict and judgment for the defendant, which judgment, on appeal, was affirmed by the Appellate Court for the First District, and the present appeal is prosecuted to reverse that judgment.

The evidence shows that appellant is the owner of a lot fronting on Kinzie street, 25 feet in width and 100 feet in depth, on the front part of which there is a two-story frame dwelling, and also another on the rear of it, and that he has, by himself and tenants, been in the actual occupancy of the premises ever since 1872; that the defendant constructed the viaduct in question in 1874, which cut off all communication with Halsted street by way of Kinzie street, except by means of a pair of stairs at the intersection of these streets; that Halsted street is one of the main thoroughfares of Chicago, and on which is operated a line of horse railway, affording communication with all parts of the city; that the rental value of the premises not occupied by appellant was, by reason of the obstruction, reduced from $60 a month to $23, and the property itself, which was worth before the obstruction over $5000, was from the same cause reduced two-thirds in value.

Under this state of facts appellant asked the circuit court to instruct the jury as follows:

“The jury are instructed, that if they believe, from the evidence, that the plaintiff is the owner of the property described in the declaration in this case, and has been such owner since the year 1872; that his property is located, with respect to Kinzie and Halsted streets, as described in the declaration; that the defendant, the city of Chicago, in the year 1874, constructed a viaduct or bridge on said Halsted street, near said Kinzie street, and thereby cut off and prevented access to said Halsted street from the plaintiff's premises over and along said Kinzie street, except by means of a pair of stairs, and that plaintiff's said premises were permanently damaged and depreciated in value by reason of being deprived of such access, then they should find the defendant guilty, and assess the plaintiff's damages at such sum as they shall believe, from the evidence, his said premises have been depreciated by the aforesaid cause.”

--Which the court refused to do, but, on the contrary, gave the following instruction for the defendant:

“The jury are instructed, that, it being admitted that the fee simple title to the streets in question was in the city, and the plaintiff having failed to prove any actionable injury, they should find the defendant not guilty.”

And the plaintiff thereupon excepted. The ruling of the court upon these instructions presents the only questions arising upon the record for determination.

It is not claimed there were any omissions in the preparation or presentation of the plaintiff's case, or that the proofs were in any respect defective, if a recovery can be had at all on plaintiff's theory of the law. On the other hand, it is not claimed or pretended that the plaintiff's possession has been disturbed, or that any direct physical injury has been done to his premises by reason of the obstruction in question. The gravamen of the plaintiff's complaint is, that the defendant, in cutting off his communication with Halsted street by way of Kinzie street, has deprived him of a public right which he enjoyed in connection with his premises, and thereby inflicted upon him an injury in excess of that shared by him with the public generally, and it is for this excess he seeks to recover, and nothing more. The instruction given for defendant denies the right of recovery for this excess, and in effect holds that where the fee of the streets is in the municipality, as in the present case, there can be no recovery in any case for an obstruction of this character, except where some direct physical injury has been done to the plaintiff's premises.

Whether this instruction announces a correct principle of law, is the vital question in this case, and upon its determination the rights of the parties to the present controversy must depend. It is a well recognized principle, that where a thing not malum in se is authorized to...

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