The Chicago v. Francis

• Decision Date: 30 September 1873
• Citation: 70 Ill. 238,1873 WL 8584
• Parties: THE CHICAGO AND PACIFIC RAILROAD COMPANYv.HENRY FRANCIS.
• Court: Illinois Supreme Court

70 Ill. 238

1873 WL 8584 (Ill.)

THE CHICAGO AND PACIFIC RAILROAD COMPANY

v.HENRY FRANCIS.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. DENT & BLACK, for the appellant.

Messrs. BARBER & GARDNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee filed a bill in chancery, in the Superior Court of Cook county, to enjoin the company from laying its railroad track on Bloomingdale avenue, in the city of Chicago, until he should be paid damages he claims he would sustain by its construction. The common council of the city granted the company the right of way in this street, and in pursuance thereof, and under the power contained in its charter, the company were preparing to construct its road.

Appellee had previously purchased thirty city lots, nineteen of which fronted on this avenue. When he purchased the lots, he supposed the railroad would be located and constructed on Armintage avenue. Evidence was heard on both sides, from which it appears these lots are worth less by reason of constructing the road on this avenue, than if it had been on Armintage avenue, but are not less in value than if no road had been built in that part of the city.

As should be expected, witnesses differ as to the value of this property, and as to whether it is injured by the road; but we are clearly of opinion that the decided weight of the evidence is, that the property is worth fully as much, if not more, than if the road had not been built. This, then, being true, does the provision of the present constitution require that damages shall be assessed? Section 13 of the Bill of Rights provides that “private property shall not be taken or damaged, for public use, without just compensation.” What is the meaning of the word “damaged,” as used in this connection? We must presume that it was used in its ordinary and popular sense, which is: hurt, injury, or loss. Now, we can not suppose that the framers of that instrument intended it in any other sense than loss or depreciation in the price of the property damaged; that the damage or injury should be real, and not imaginary or speculative. It can not be said appellee has sustained damage, when his property is worth and will sell for as much or more than if no road had been built. It is no damage to him if the construction of the railroad has not increased the value of his lots,...