Stone v. the Fairbury

• Decision Date: 30 September 1873
• Citation: 18 Am.Rep. 556,1873 WL 8370,68 Ill. 394
• Parties: JOHN STONEv.THE FAIRBURY, PONTIAC AND NORTHWESTERN RAILROAD COMPANY.
• Court: Illinois Supreme Court

68 Ill. 394

1873 WL 8370 (Ill.)

18 Am.Rep. 556

JOHN STONE

v.THE FAIRBURY, PONTIAC AND NORTHWESTERN RAILROAD COMPANY.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HEREWRIT OF ERROR to the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

This was an action on the case, by the appellant against the appellee, to recover damages to plaintiff's property caused by the construction and operation of defendant's railroad on a public street fronting the same. The court below sustained a general demurrer to the declaration, and the plaintiff abiding by his declaration, judgment was rendered for the defendant, and the plaintiff brings the record here by writ of error.

Messrs. AMENT & FLETCHER, and Messrs. HARDING & TERRY, for the plaintiff in error.

Mr. L. E. PAYSON, and Messrs. PILLSBURY & LAWRENCE, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of trespass on the case, brought in the circuit court of Livingston county, by John Stone, against the Fairbury, Pontiac and Northwestern Railroad Company.

The declaration contained two counts, to which a demurrer was filed by the defendant and sustained by the court. The plaintiff elected to abide by his declaration, and the court rendered judgment against him for costs.

The plaintiff brings the case here, and the only question for decision is, as to the sufficiency of the declaration.

It is averred in each count of the declaration, substantially, that the plaintiff owns and occupies as a residence certain property fronting on Walnut street in the town of Fairbury; that the defendant constructed along, upon and over said street its railroad, and run daily its locomotives and trains thereon; that smoke and cinders were cast and thrown from the engines and locomotives on and over the property of plaintiff, thereby greatly damaging the same.

The averments in the declaration are admitted to be true by the demurrer, and from them alone we are to determine whether the plaintiff has a cause of action.

By the 19th section of the Bill of Rights of our constitution it is declared, that every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice fully and without denial, promptly and without delay.

And by the 13th section of the same instrument it is declared, that private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken.

While it must be conceded that an incorporated town or city owns the fee simple title to the public streets, and has the exclusive power to control and regulate the same, and in the exercise of that power may rightfully authorize and permit a railroad company to occupy and use a public street with its railroad track, yet, under the organic law of the State, the railroad company must be held responsible to property owners upon the street for such direct or physical damage as shall result from the construction of the road or the operation of the same after its completion.

The commerce of the country and the unbounded wants of the public demand that public streets in towns and cities should be used by...