The Chicago v. Maher

• Decision Date: 30 September 1878
• Citation: 1878 WL 10268,91 Ill. 312
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.SARAH MAHER.
• Court: Illinois Supreme Court

91 Ill. 312

1878 WL 10268 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.SARAH MAHER.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the First District; the Hon. THEODORE D. MURPHY, presiding Justice, and the Hon. GEO. W. PLEASANTS and Hon. J. M. BAILEY, Justices.

This was an action of trespass, brought by the appellee against the appellant, for an injury to a certain lot on the South Branch of the Chicago river. The material facts are stated in the opinion of the court.

Mr. GEO. W. SMITH, and Mr. R. A. CHILDS, for the appellant.

Mr. JESSE COX, Jr., and Mr. SIDNEY SMITH, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee sued to recover damages for injuries claimed to have been sustained to her land by a pier erected by appellant for a bridge of the company.

The property out of which this litigation arises originally belonged to the trustees of the Illinois and Michigan Canal. One Michael Scanlan purchased of them block 16, of their subdivision of the quarter section. He having died before the block was conveyed, the trustees deeded the property to his heirs, and they, on the 6th day of February, 1868, conveyed to Hugh Maher the portion which lies east of the South Branch of the Chicago river, fronting on the East Branch of the South Branch, except all of that part which lies north of the track of the Chicago, Alton and St. Louis Railroad Company. Maher, subsequently, on the 29th of June, 1872, sold the property to his wife, and, to vest the title in her, conveyed to James Roberts, and he deeded it to Mrs. Maher.

When Maher purchased of the Scanlans, he entered into possession and constructed a brick yard on the land, and dredged, deepened and widened the river in front of it, for dock purposes. He had completed the dock before he sold to his wife, and she has held possession, through tenants, since her purchase. After Maher had completed his dock, the railroad company, in 1871, replaced a bridge over the river by a new one, with a swing, to admit of the passage of vessels through the structure. This swing was placed on a pier, in the center of the river. The length of the swing was 150 feet, and spanned the width of the river. The protection stands up and down the river, the length of the swing, and was made by driving piles, capping them with timber, and planking the sides. Before this last bridge was built, the swing of the old bridge, which this replaced, rested on a clump of piles driven in the river, so the ends of the draw would rest on them when it was opened to permit vessels to pass.

It is claimed that this structure is of great injury to this property for dock purposes, and that the amount of the verdict ($4000) is not excessive, but, on the contrary, does not compensate appellee for the loss. On the other side it is contended, that as this structure is permanent in its nature, and was placed there whilst Maher was the owner of the land in fee, the action accrued to him, and not to his wife, and that she can not sue and recover for the injury.

It is, however, contended, that the continuance of the structure is an injury to the property, since the wife became the purchaser, and for which she may recover. On the other hand it is urged, that, the injury being permanent and depreciating the price of the land, all damages for past and future injury to the property could have been sued for and recovered by Maher, and that such a recovery would have been a bar to all actions growing out of the trespass by the company in creating the obstruction to the dock of appellee,--in other words, the trespass was upon Maher's land, the damage, if any, was sustained by him, and he could not, nor did he, assign the cause of action to his wife by conveying her the property, or otherwise; and if she was entitled to the benefit of a recovery, the suit should have been brought in his name, for her use.

That Maher was the owner when this last structure was made is conceded, and all will admit that, being the owner in fee, he could have maintained an action for the recovery of damages for such injury as he sustained. His right of action was complete. It was a chose in action, fully and undeniably vested in him. At common law it could not be assigned or sold, so as to vest the legal title to the claim, or a right to sue, in another person. Even promissory notes, until authorized, (by act of Parliament in England, or by act of the General Assembly in the States of the Union,) could not be assigned so as to transfer the right of action from the payee to another. It was against the policy of the common law...