Chicago & Eastern Illinois Railroad v. Loeb , 8 Ill. App. 627 ( 1881 )

McAllister, P. J.

When reduced to its proper elements, the action set out in the plaintiff’s declaration is a mere action on the case to recover damages for an alleged nuisance to plaintiff’s dwelling house and land, either caused or continued and maintained by the defendant. The case, however, was so loosely tried on both sides, that regard for the essentials of such a cause of action, is scarcely discernible in the record, except one — the damages. The plaintiff in his declaration counts § merely upon his possession: his proof not only totally fails to show that he ever had possession, but tends strongly to show a mere reversionary interest, for an injury to which he could not recover under his declaration, as it stood counting only upon possession. In such case the plaintiff, to recover, was bound to prove (1) his possession of the house and land; (2) the injurious act alleged to have been done by the defendant; and (3) the damages thence resulting. 2 Greenl. on Ev. See. 470 ; 2 Starkie on Ev. 741.

To recover for an injury to a reversionary interest would re- • quire a declaration differently framed. The reversionary interest must not only be set out, but the declaration must allege that the injury was done to the damage of the reversion, or must state an injury of such a permanent nature as to be necessarily injurious to the plaintiff’s reversion. Jackson v. Pested, 1 Maule & Sel. 234; Tinsman v. The Belvidere Del. R. R. Co. 1 Dutcher (N. J.) 255; 2 Chit. on Pl. 777, note p.

The plaintiff’s evidence is wholly wanting in respect of one essential element of his cause of action, viz: possession of the dwelling-house and land described in his declaration.

But concede, for the sake of the argument, that he could recover under the present declaration for an injury to his reversionary interest,' then how does the case stand? In such case the injury must be of a permanent nature, because the plaintiff could not recover damages done to the possession while the property was in the occupation of a tenant. Cooper v. Randall et al. 59 Ill. 317; Indianapolis, B. & Western R. v. McLaughlin et ux. 77 Ill. 275.

The court below permitted the plaintiff, against defendant’s, objections, to introduce evidence tending to show a permanent injury to his reversion resulting from the construction and operation of the railroad on Carroll avenue, in front of and near to plaintiff’s alleged dwelling house. But the case shows that the railroad was constructed and put in operation by a railroad corporation other than defendant, some two years before the plaintiff had any pretended connection with the dwelling house and land in question. The 'cause of the injury being permanent in its nature, then, so far as the premises in question are concerned, the injury was effectuated when the railroad was constructed and first put in operation. That being the case, the right' of action for such injury became vested in him who was the owner of the premises at that time; and his grantee cannot maintain an action for the continuance of the cause of the injury, although such former owner may not have brought any suit for the original injury. The Chicago and Alton R. R. Co. v. Maher, 91 Ill. 312.

For the error in admitting said testimony and overruling the defendant’s motion for a new trial, the judgment of the court below will be reversed and the cause remanded.

Eeversed and remanded.