The St. Louis v. Capps

• Decision Date: 30 June 1872
• Parties: THE ST. LOUIS, VANDALIA AND TERRE HAUTE RAILROAD COMPANYv.EBENEZER CAPPS.
• Court: Illinois Supreme Court

67 Ill. 607

1872 WL 8608 (Ill.)

THE ST. LOUIS, VANDALIA AND TERRE HAUTE RAILROAD COMPANY

v.EBENEZER CAPPS.

Supreme Court of Illinois.

June Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fayette county; the Hon. A. J. GALLAGHER, Judge, presiding.

This was an action on the case, by Ebenezer Capps against the St. Louis, Vandalia and Terre Haute Railroad Company, to recover damages claimed by the construction of the defendant's road in a public street in the town of Vandalia, in front and along the plaintiff's lots and place of business. The plaintiff recovered, and the defendant appealed to this court. The facts are fully stated in the opinion.

Mr. JOHN SCHOLFIELD,FNa1 for the appellant.

FNa1. This case was decided at the June Term, 1872, before Mr. JUSTICE SCHOLFIELD came upon the Bench.Messrs. MOULTON & CHAFFEE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

Appellants are a corporation, created by an act of the general assembly of this State, conferring upon them the usual powers and privileges. The tenth section of their charter makes it lawful for the corporate authorities of any incorporated city or town through which their railroad shall be located, to grant or lease to the company, as a right of way, the right to lay a single or double track through such city or incorporated town, or highway that the railroad may select for that purpose; such lease or permit to be unchangeable and perpetual, except at the option of the railroad company.

The town of Vandalia was declared a body politic and corporate by an act of the general assembly, approved February 14, 1857, under the name and style of “The President and Board of Trustees of the town of Vandalia,” to whom was given the power to regulate, grade, plank, improve and pave the streets, alleys and public square in that town, with power to levy an annual road labor tax of not less than three nor more than five days against certain white males within a certain age.

In 1868 the board of trustees of this town adopted the following ordinance:

“Be it ordained by the President and Board of Trustees of the town of Vandalia, Illinois, that the right of way is hereby granted to the Saint Louis, Vandalia and Terre Haute Railroad Company, through the town of Vandalia, over, across and along the streets and alleys and public square of said town, where said railroad is now located, of the width of thirty-two feet 32 north from the south line of Main street, together with such additional widths or embankments, and in excavations, as shall be necessary to give stability to the slopes of the material composing the same, and provided, in no case shall there be less than thirty (30) feet in width, (upon which a good common road shall be kept by said company) of street left and maintained on north side of said Main street between the Illinois Central Railroad and the Kaskaskia river, upon condition that the said railroad company, before said railroad is in operation, will make, or cause to be made, good and sufficient bridges over said railroad track on Main street, where it crosses Third and Fourth streets, so as to make convenient and safe passage-ways over said road for business and travel along said streets; also a foot bridge between Third and Fourth streets from the centre of north side of public square across said railroad when required by the trustees of said town; and will also make good and convenient crossings or bridges over said railroad on the other streets and alleys, where they may be required--said bridges and crossings to be kept in repair by said railroad company perpetually; and that said railroad company shall construct, or cause to be constructed, substantial railings on each side of the cut opposite said public square, and from Third to Second street on north side of said railroad, and that said excavations shall be sodded or protected as may be necessary to prevent the washing of said slope; and further, 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, by reason of the construction of said railroad; and provided that the slope necessary to be made upon the public square shall not extend more than twenty-one (21) feet in width from the southern line of said Main street into and upon said public square, and that the slope shall not be less than one and a half feet to the one foot perpendicular.”

The company constructed their road through Main street by excavating the same fifty feet wide and twenty feet deep, and through this cut ran their trains.

Appellee is the owner of several lots fronting on this street, on which he had erected buildings, and among them a store in which he had prosecuted his business as a merchant for more than twenty years, doing a large business. He complains that the road is so constructed as greatly to damage his business, and to drive customers from him by reason of the dangers attendant on running cars so near the store, and that thereby the value of his property has been greatly diminished and his custom likewise. He contends, that as owner and possessor of these premises he was rightfully entitled to have the street on which his lots abutted, at such grade as would permit him to enjoy their use, and to enable all persons to come to his premises on foot, in wagons or other vehicles, without danger to themselves or to their property.

There are other causes of complaint stated in the several counts of the declaration, not necessary to notice particularly, and all which were fully placed before the jury by the evidence. The verdict was for the plaintiff, awarding him nine thousand nine hundred and sixteen dollars in damages. A motion for a new trial was overruled and judgment rendered on the verdict.

To reverse this judgment the defendants appeal, assigning...