Vill. of River Forest v. Chicago & N.W.R. Co.

• Decision Date: 19 June 1902
• Citation: 197 Ill. 344,64 N.E. 364
• Court: Illinois Supreme Court
• Parties: VILLAGE OF RIVER FOREST v. CHICAGO & N. W. R. CO.

197 Ill. 344

64 N.E. 364

VILLAGE OF RIVER FOREST

v.CHICAGO & N. W. R. CO.

Supreme Court of Illinois.

June 19, 1902.

Appeal from Cook county court, O. N. Carter, Judge.

Application by the village of River Forest for the confirmation of a special assessment against the Chicago & Northwestern Railroad Company. From a judgment sustaining objections filed by the company, the village appeals. Affirmed.

Magruder, C. J., dissenting.

F. J. Griffen, for appellant.

A. W. Pulver (Lloyd W. Bowers and Samuel A. Lynde, of counsel), for appellee.

WILKIN, J.

Appellant prosecutes this appeal from a judgment of the county court of Cook county sustaining objections to a special assessment made by the village of River Forest on certain property of the appellee railway company for the improvement of Thatcher and Hawthorne avenues, in said village. The land was assessed $389.40. On the application of the village for a confirmation of the assessment appellee appeared, and filed numerous objections, all of which were overruled except two, as follows: ‘(65) Said assessment upon the property of said objector exceeds the benefits which will accrue to the said property from the proposed improvement.’ ‘(84) Said property is not benefited by said proposed improvement.’ Hawthorne avenue extends east and west through the village, and is immediately south of appellee's railroad tracks. Thatcher avenue extends from the north across the right of way and tracks of the railroad company to Hawthorne, and then runs south from a point further west on said Hawthorne avenue. The property assessed is adjacent to and west of Thatcher avenue and immediately north of Hawthorne. It is 100 feet wide north and south, and about 185 feet long east and west. It is inclosed as right of way by a fence. The depot is east of Thatcher avenue, on the north side of the railroad tracks. The platforms are 500 feet long on the north side and about 300 feet long on the south side, both being east of Thatcher avenue.

James S. Robinson, a civil engineer employed by the railroad company, testified that the property in question was used simply as right of way for the two tracks of the company, and had no connection whatever with the depot or depot grounds, and he described the location as above stated. He testified that there were no railroad structures on the property, and that it was devoted to no other use than that of right of way, and that the property would in no way be benefited by the proposed improvement of Hawthorne and Thatcher avenues. The village relied upon the assessment roll, with the certificate and affidavit of the commissioner who made the assessment, and the testimony of one F. C. Smith. Smith testified in chief: ‘I reside at River Forest. I am in the real estate business, and have been for twenty years. I am acquainted with the value of real estate in River Forest in the vicinity of Hawthorne and Thatcher avenues. I have bought and sold considerable real estate, and have observed the effect of local improvements, such as contemplated, upon the value of real estate,-the general effect upon values. It makes it more valuable. You have to pay more for property on improved streets, always. I am acquainted with the property of the objector, assessed $389.40. In my opinion, that property is increased in value to the amount of the assessment.’ From his cross-examination it appears that his opinion as to the benefits which the property will derive from the improvement is based upon the supposition or conjecture that it will be in the future needed for depot or freight house purposes, not upon its present condition and uses. In Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 509, 30 N. E. 1036, speaking of a special assessment, we said (page 515, 141 Ill., and page 1037, 30 N. E.): ‘In a proceeding to condemn lands, as a general rule, the owner is entitled to recover the fair market value of the lands taken; and in a proceeding by special assessment, as a general rule, the inquiry is to what extent the market value of the premises has been increased by the improvement. If, therefore, in the former case, where the owner is restricted to a particular use, the measure of compensation will be its value for the special use to which he is restricted, upon the same principle it must follow, in a special assessment proceeding, where land is restricted by statute to a particular use, and cannot be applied to any other, the true measure of benefit which an improvement will confer on the land is its increased value for the special use to which it may, by statute, be restricted. In a proceeding by special assessment, in no case can the...