Chicago, Burlington & Quincy Railroad v. McGinnis , 79 Ill. 269 ( 1875 )

Mr. Justice Sheldon

delivered the opinion of the Court:

There are two questions here presented: one upon the rejection of the testimony, the other as to the rule of damages, adopted by the court below.

The court permitted the plaintiff to prove what, in the opinion of witnesses, the rental value of the place would have been without the railroad and what it was with the railroad. The defendant offered to prove, in cross-examination and by direct evidence, that there were a gas factory and a starch factory near the plaintiff’s premises, which were offensive things, and made the premises undesirable for any one to occupy, and tended to depreciate their rental value.

The court excluded the testimony. The rental value of the premises having been made by the plaintiff a subject of evidence, it was admissible in rebuttal to show the existence of these other causes which affected such rental value, to lay the foundation for the contention that the depreciation of rental value was not wholly due to the railroad, and to show to what extent these other causes might have contributed to produce such result.

The plaintiff gave testimony, to the effect that, in his opinion, the trestle work need not have been so high—that he did not believe it necessary to have it there.

The defendant offered to prove, by civil engineers, that the building of the trestle work in the manner in which it was built was necessary, in order to cross the river and overcome-the grade on the opposite side, but the court refused to admit this testimony. The testimony given by the plaintiff tended to show that the company had been guilty of negligence and want of proper care in constructing the road in a proper manner, so that the plaintiff was unnecessarily injured. It was surely competent for the defendant to rebut this, by showing that the trestle work was necessary; that there was no want of proper skill and care in the construction of the road in such manner; and that plaintiff was not needlessly injured. We think that, upon the theory on which the case went to the jury, both descriptions of testimony were improperly rejected.

The Ottawa, Oswego and Fox Biver Valley Bailroad Company, by its charter, had a legal right to construct and operate this railroad. The city council of Ottawa was vested with the exclusive control and regulation of the streets of the city. It granted to the railroad company permission and authority to construct, use and maintain a railroad track upon this Walker street, in front of plaintiff’s lot.

The trestle work in question we may suppose, as was offered to be proved, was. a necessary erection in the proper construction of the railroad.

It has been the long settled doctrine in this State, at least anterior to the adoption of the constitution of 1870, that where, by the charter of a city, its local authorities are vested with exclusive control over the streets, and those authorities grant permission to lay down railway tracks along a street, the owners or occupants of property fronting on such street can not enjoin the laying of such tracks, nor be allowed any damage or compensation for such use of a street. Moses v. The Pittsburgh, Ft. Wayne and Chicago Railroad Co. 21 Ill. 516; Murphy v. The City of Chicago, 29 id. 279; and see Stone v. Fairbury, Pontiac and Northwestern Railroad Co. 68 Ill. 394.

The court below, against the objection of the defendant, permitted evidence to be given of what would have been the value of the property, and its rental value, without the railroad, and what they were with the railroad. This was adopting an erroneous rule of damages, and this may be said without reference to the question of the bearing of the provision of the constitution of 1870, that "'private property shall not be taken or damaged for public use without just compensation,” upon a railroad constructed before the adoption of the constitution. In Stone v. Fairbury, Pontiac and Northwestern Railroad Co. supra, in respect to a railroad constructed since the adoption of the constitution of 1870, while it was held there was a right of recovery against a railway company for a direct physical injury done to adjacent property, by throwing smoke and cinders upon it, it was said there were various annoyances and inconveniences arising from a railroad which would cause damage to property for which there would be no remedy. For any damage on account of the trestle work in this case, we are of opinion there was no right of recovery.

Recognizing, as the court below did, the rule of damages to be the difference between the value-of the property without the railroad and with the railroad, would be to allow a recovery for damage to the property from all causes whatsoever by reason of the railroad, and so of the rental value in such respect. If there be any liability in respect of the dust, smoke and cinders—as to which, under the circumstances of this case, we express no opinion—the inquiry should have been confined to the question of what material damage, if any, was done to the property by the throwing of dust, smoke and cinders upon it.

For the errors indicated, the judgment will be reversed and the cause remanded.

Judgment reversed.