St. Louis v. Capps

• Decision Date: 31 January 1874
• Citation: 1874 WL 8786,72 Ill. 188
• Parties: ST. LOUIS, VANDALIA AND TERRE HAUTE RAILROAD CO.v.EBENEZER CAPPS.
• Court: Illinois Supreme Court

72 Ill. 188

1874 WL 8786 (Ill.)

ST. LOUIS, VANDALIA AND TERRE HAUTE RAILROAD CO.

v.EBENEZER CAPPS.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Shelby county; the Hon. H. M. VANDEVEER, Judge, presiding.

Mr. R. W. THOMPSON, and Messrs. THORNTON & WENDLING, for the appellant.

Messrs. MOULTON & CHAFFEE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action on the case, brought by the appellee, an owner of real property situated on Main street, in the town of Vandalia, against the defendant, to recover for damages sustained by reason of the construction of its railroad over and along said street.

The plaintiff recovered a verdict and judgment for $10,820, and the defendant appealed to this court.

The claim for recovery is founded upon an ordinance of the town of Vandalia granting the right of way to the defendant for its railroad through the town, over and along its streets, upon the following condition, among others: “That the said railroad company are to be held bound to pay all damages that may accrue to the property owners on said Main street” (the one in question) “by reason of the construction of said railroad.”

Errors are assigned in regard to the admission of testimony, the giving and refusing of instructions, and that the damages are excessive.

The questions upon the admission of evidence and the instructions respect the kind of damages which are recoverable, and turn chiefly upon the ordinance of the town of Vandalia.

This case has once been before this court, where this ordinance, in respect to the damages recoverable, received a construction in a decision rendered at the June term, 1872. (67 Ill. 607.) It was there laid down that the appellee was entitled to damages for whatever deterioration in value his real estate may have undergone in consequence of laying the railway track, and to damages for interruption to his business during such time as would have been necessarily employed in accommodating himself to another place equally eligible, and his removal thereto; that, during such time, the damages to his business should be ascertained by proof of the probable reasonable profits which might have been made upon sales, had there been no interruption to the business of appellee by appellant; that the necessary reasonable expenses attending the removal would be an element of damages. So far as that decision goes, it must be taken as the law of this case.

All the evidence in respect to appellee's business, which was objected to, was within the rule there laid down; but it is claimed that, as there never has been any removal by appellee, nothing is allowable for interruption of business. The same state of facts, substantially, was presented before us on the former occasion, as now. There was no pretense that there had been, or was to be, any actual removal; but it was considered that, if appellee remained upon the premises, and submitted to the loss in respect to his business which he would suffer by reason of the railroad, he should, nevertheless, be allowed, as damages, for the necessary cost of avoiding such loss by a removal from that place of business.

It is insisted that appellee's third refused instruction should have been given, to-wit: that the defendant is not liable for any damages the plaintiff may have sustained while the work of construction of the road was in progress, and is only liable, under the ordinance, for such damages as would ensue from the work after its completion.

The liability, under the...