Springer v. City of Chicago

• Citation: 135 Ill. 552,26 N.E. 514
• Parties: SPRINGER v. CITY OF CHICAGO.
• Decision Date: 22 January 1891
• Court: Illinois Supreme Court

135 Ill. 552

26 N.E. 514

SPRINGER

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, first district.

Knight & Brown and E. H. Gary, for appellant.

Jonas Hutchinson, Clarence S. Darrow, Byron Boyden, and H. H. Martin, for appellee.

CRAIG, J.

This was an action to recover damages alleged to have been caused to the property of appellant by the construction of Jackson-Street bridge and viaduct, and the approach on Canal street, by the city of Chicago. On a trial the jury returned a verdict in favor of defendant, the city of Chicago. The court overruled a motion for a new trial, and rendered judgment on the verdict. On appeal to the appellate court the judgment was affirmed.

The improvement was completed by the city in July or August, 1888. During the month the improvement was completed Horace A. Hurlbut commenced negotiations with the plaintiff for the purchase of a portion of the property claimed to have been damaged. The negotiations resulted in an option given by the plaintiff to Hurlbut for the property for a certain time at a stipulated price. Hurlbut did not, however, close the contract within the time specified in the offer, and plaintiff advanced the price of the property, and subsequently, within three or four months, sold to Hurlbut at the advanced price. On the trial the court permitted the defendant to prove the price placed on the property by the plaintiff in his offer to Hurlbut, and this decision is relied upon as error. In order to determine whether the plaintiff had been damaged by the construction of the improvement it was proper to show the value of the property before and after the improvement had been made. Evidence of what the property was worth in July and August, 1888, was therefore competent for the consideration of the jury. This is not, however, disputed or denied, but it is claimed that the offer of plaintiff is not evidence of the value of the property. While we do not think the offer of an owner of property to sell at a certain price would be conclusive evidence of the value of the property, yet we do think that an offer by the owner to sell is competent evidence against him as an admission in fixing the value at or near the time the offer was made. Lewis, Em. Dom. §§ 439, 446; Mills, Em. Dom. (2d Ed.) § 172; 6 Amer. & Eng. Enc. Law, 619, 620; Railway Co. v. Ranck, 78 Pa. St. 454; Railroad Co. v. Greely, 23 N. H. 237; Railroad Co. v. Adolph, (Kan.) 21 Pac. Rep. 643;Springfield v. Schmook, 68 Mo. 394;Watson v. Railway Co., 57 Wis. 332, 15 N. W. Rep. 468; Fogg v. Hill, 21 Me. 529. In Lewis on Eminent Domain, § 439, the author says: ‘In regard to the proof of admission of the parties the same general rules apply as in other cases. It is competent to prove the declarations of the owner of the property in question as to its value, and the price at which he has offered to sell it, and other admissions which are pertinent to the issue.’ See, also, section 446. In 6 Amer. & Eng. Enc. Law, 620, the law on the question is stated as follows: ‘The declarations of the owner as to the value of his land, and his offer of it at a fixed price, may competently be introduced in evidence against him, and, if the land-owner dies while the proceedings are pending, his declarations and admissions are competent evidence against his trustees.’ The supreme court of Wisconsin, in considering the question in Watson v. Railroad Co., 57 Wis. 332, 15 N. W. Rep. 468, said: ‘This evidence was introduced for the purpose of showing that the land was in fact of greater value after the road was located across it than the value placed upon it by the appellant's witnesses. We think the evidence was competent, not only as tending to prove its real value after the railroad was located across it, but as an admission on the part of the appellants of such value. Whitman v. Railroad Co., 7 Allen, 313-318;Shattuck v. Railroad Co., 6 Allen, 117.’ In Railroad Co. v. Ranck, 78 Pa. St. 454, the court said: ‘As evidence bearing on the value of this property, Ranck's own declarations were certainly competent, when offered by the company. His offer of it at a fixed price, and the sale of a portion of it, were facts proper to go to the jury as constituting his estimate of its value. It is true the sale of a portion of the property does not fix with certainty its market value as a whole, but it is an element fair to be considered by the jury.’ In 1 Rorer on Railroads, 379, and in Pierce on Railroads, 225, the doctrine is laid down that the admissions of the owner are competent evidence on the question of value. It is, however, said the sale to Yerkes was a forced sale; that Springer, knowing that Yerkes was bound to have the property for a particular purpose, placed a larger price on the property than it was really worth. Whether Yerkes was so situated that he was compelled to purchase this property, and on that account might pay more for it than it was really worth, was a question which no doubt might be considered by the jury in arriving at its value; but at the same time such fact, if it existed, affords no reason why the jury might not also consider the statements and declarations of the plaintiff in connection with the other evidence in arriving at the value of the property. The option placed on the property by the plaintiff, as an admission of the value of the property, was competent evidence for the jury. Whether it proved the value was a question for the jury to determine after a due consideration of all the evidence introduced on the question.

It is next claimed that the court erred in modifying plaintiff's first and third instructions. In the first instruction the jury were directed that if they find from the evidence the defendant had raised the grade of the street in front of plaintiff's property, and thereby damaged the property, they will find defendant guilty, and assess damages at such sum as they believe from the evidence he sustained, resulting directly from changing the grade in front of said property, taken in connection with the whole improvement. The court added the following: ‘In case you believe from the evidence that plaintiff's property was damaged by said improvement taken as a whole.’ The modification was so slight that it did not materially change the meaning of the instruction, but, if it did, the modificantion was right, and could not mislead the jury. The plaintiff claimed that he was damaged by the improvement, and in passing upon the question it was the duty of the jury to take into consideration the whole improvement. A part of the improvement standing alone may have resulted in damage to plaintiff, but, when the entire improvement is taken into consideration, a benefit, rather than a loss, may have been the result; hence the necessity of the attention of the jury being directed to the whole improvement. What has been said in reference to the first modification will apply to the others.

Complaint is also made of appellee's instructions that they directed the jury that ‘if, by the improvement as a whole, the property is benefited as much as it is damaged by the construction of the approach alone, then there can be no recovery.’ The last part of plaintiff's first instruction, prepared by him and given to the jury on the question of the measure of damages, is as follows: ‘The measure of damages to the property will be the difference, as shown by the evidence, between the fair cash market value of the plaintiff's property without said improvement and change of grade and the fair cash market value of said property with said improvement, taken as a whole, and change of grade completed.’ This was given as asked by plaintiff, except the words ‘taken as a whole’ were added by the court, and it contains the same principle introduced in defendant's instructions, which plaintiff now undertakes to condemn. A party cannot complain of an instruction given in behalf of his adversary like one given at his own request. But, aside from this, we perceive no objection to defendant's instructions. Where an action is brought to recover damages, where no part of the plaintiff's property has been taken but merely damaged by a public improvement, the law is well settled that a recovery cannot be had unless the property claimed to be damaged has been depreciated in value by the construction of the public improvement. In other words, if the fair market value of the property is as much immediately after the construction of the improvement as it was before the improve was made, no damage has been sustained and no recovery can be had. Elgin v. Eaton, 83 Ill. 535; Railroad Co. v. Francis, 70 Ill. 238; Railroad Co. v. Hall, 90 Ill. 42; Railroad Co. v. Haller, 82 Ill. 208; Railroad Co. v. Capps, 67 Ill. 607, at 614;Eberhart v. Railroad Co., 70 Ill. 347; Railroad Co. v. Maher, 91 Ill. 312; Railroad Co. v. Loeb, 118 Ill. 203, 8 N. E. Rep. 460; Railroad Co. v. Stein, 75 Ill. 41, at 47;Page v. Railroad Co., 70 Ill. 324.

After the jury was impaneled, and before the trial commenced, the court, on motion of defendant, permitted the jury, in charge of an officer, to go upon and view the premises in controversy, and this ruling is relied upon as error. It is not claimed that in the conduct of the men there was any misbehavior on the part of the officer in charge, or on behalf of any of the jury, or on behalf of either representative of the respective parties who accompanied the jury. The naked claim is a want of power on the part of the court to permit the view. The viaduct was completed in August, 1888, and the trial occurred, and the view was had, in December, 1889. Evidence of the condition of the property at the time of the trial was competent, and the parties had the right to show the value of the property at the time of the trial, as such evidence would have a bearing on the value of the property before and after the alleged damage. The rule seems to be well established that...