Tinker v. City of Rockford

• Decision Date: 10 October 1891
• Citation: 28 N.E. 573,137 Ill. 123
• Parties: TINKER v. CITY OF ROCKFORD.
• Court: Illinois Supreme Court

137 Ill. 123

28 N.E. 573

TINKER

v.CITY OF ROCKFORD.

Supreme Court of Illinois.

Oct. 10, 1891.

Appeal from appellate court, second district.

Action on the case by Robert H. Tinker against the city of Rockford. There was judgment for defendant, which was affirmed in the appellate court. Plaintiff appeals. Reversed.

N. C. Warner, for appellant.

Marshall & Taggart, for appellee.

SCHOLFIELD, C. J.

The pleadings in this case are voluminous and prolix, but the substance may be stated thus: The action is case, and the cause of action alleged in the declaration is the permitting by appellee of a railroad company to exclude access to a city lot of appellant fronting on Winnebago street, the use of which street is appurtenant to the lot, by erecting in the street, so as to occupy it in front of the lot the approaches to a viaduct for the travel on that street over the track of the railway company. Appellee pleaded a grant by appellant of a part of the same lot to the railroad company, for a valuable consideration, for the purpose of erecting an embankment thereon to support the superstructure and railway track of that company in such a manner as to render the erection of the viaduct in Winnebago street indispensable. Appellant relied, denying that his grant to the railway company was for the purpose alleged in the plea,-setting out the deed in haec verba,-and averring that the grant was for no specific purpose, and that he had no knowledge at or before the grant of the intention to erect the viaduct in the street in front of his lot. The circuit court sustained a demurrer to the replication, and, appellant refusing to reply over, gave judgment thereupon for appellee; and this judgment, on appeal to the appellate court of the second district, was affirmed by the judgment of that court. The deed from appellant to the railroad company does not assume to convey any part of or interest in Winnebago street, but upon the contrary the description therein of the property conveyed is by monuments, courses, and distances, so as to include only property lying outside the street. The contention of appellee is-and such were the rulings of the courts below-that all the damages to the part of appellant's lot not conveyed, caused, not only by the building of the embankment for the support of the superstructure and railway track and the operating of trains thereon, but also all the damages thereto caused by the erection and maintaining of the viaduct in Winnebago street in front of that lot, were included in the consideration paid him for his conveyance.

So far as the damages caused by the building of the embankment for the support of the superstructure and railway track and the operating of trains thereon are concerned, the contention is supported by Railway Co. v. Smith, 111 Ill. 363. The principle controlling in that case is stated in a quotation from the opinion in Atkins v. Bordman, 2 Metc. (Mass.) 463, as follows: ‘A grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted.’ The...