Chicago & Alton Railroad v. Robbins ( 1894 )

Mr. Justice Waterman

delivered the opinion of the Court.

It is urged that it was reversible error for the court in the absence of counsel to instruct the jury to compute damages up to the time of the trial of the cause.

We do not think that, the jury having asked for further instructions, it was the duty of the court to delay an answer until appellant or its counsel could be hunted up and brought in. The entire proceeding was in open court. The absence of appellant was entirely voluntary on its part, and the court was-under no obligation under such circumstances to keep the jury waiting until appellant came in. Mor do we think that the mere omission of the court to write, “ Given” upon the instruction handed to the jury at their request, warrants a reversal of the judgment in this case.

In determining as to up to what time damages in an action of trespass quare clausum fregit are to be computed, the nature and effect of the trespass are to be considered. This subject was very fully commented upon in the Town of Troy v. Cheshire R. R. Co., 23 N. H. 83-101. The rule there enunciated is: “ Whenever the nuisance is of such a character that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, there the damage is an original damage, and may at once be fully compensated, since the injured person has no means to compel the individual doing the wrong to apply the labor necessary to remove the cause of injury, and can only cause it to be done, if at all, by the expenditure of his own means.”

The Supreme Court of this State in Cooker v. Randall et al., 59 Ill. 311, said: “ When a wrongful act is done which produces an injury which is not only immediate, but from its very nature is permanent, and must necessarily continue to produce loss, independent of any subsequent wrongful acts, then the damages resulting, both before and after the commencement of the suit, may be estimated and recovered in one action.”

The trespass in the present case is not only of a permanent nature, and one which will continue to produce loss, independent of any subsequent acts, but having been committed by a public railway corporation in the construction of its road bed, it is as against appellant to be presumed that what it has done was and is a proper construction necessary to the transaction of its duty to the public.

It is true that the declaration does not in terms allege a permanent injury; but it sets forth a trespass, which is in its nature permanent unless removed by human labor.

The allegation, in terms, of a permanent injury, is not in this State, after verdict, necessary to the maintenance of a judgment for permanent damages in an action of trespass guare clausum fregit. C. & G. W. R. R. Co. v. Wedel, 44 Ill. App. 215; 144 Ill. 9.

The question of where the true boundary line lay, as well as of the amount of the damage, if any, appellee had sustained, were matters of fact peculiarly for the determination of the jury.

We do. not find anything tending to sustain appellant’s contention that appellee did anything to augment the damage resulting from the trespass.

The amount awarded may be large, considering the injury actually sustained, but we find in this record nothing that enables us to say with any degree of certainty that such is the case.

The judgment of the Circuit Court is therefore affirmed.