Lake Street Elevated R. Co. v. Brooks , 90 Ill. App. 173 ( 1900 )

Mr. Presiding Justice Adams

delivered the opinion of the court.

The demurrer was a single pleading, but is expressed to be to each count, which is the same, in effect, as if a separate demurrer had been filed to each count. Sanford v. Gaddis, 13 Ill. 329.

The question on this appeal is, whether each count of the declaration is legally sufficient. The court having overruled a demurrer to each count, if any count is insufficient in substance, the judgment can not be sustained, because in such case we can not know that damages were not assessed on the insufficient count. Backus v. Richardson, 5 Johns. 476; Kingsley v. Bill et al., 9 Mass. 198.

The gist of the first count is the alleged obstruction of ingress and egress to and from the appellee’s premises, by reason of which it is alleged that she has been deprived of the use and benefit of the street in front of her premises. The declaration contains a minute description of the structure, which is binding on appellee. By that description, the foundations, on which are placed the upright columns which support the cross-girders, are even with the surface of the pavement. The columns are forty-five feet apart, being in some places thirteen feet from the curb line, and in other places on the curb line. One of the columns is twenty feet east of the east line of appellee’s premises, and another seventeen feet east of the west line of her premises. The front or face of the north longitudinal girder is a distance of twenty-six feet from the lot line, and there is a like distance from the south longitudinal girder to the lot line, “ making a clear space or distance between the lot line and the face of the longitudinal girder, unobstructed, of twenty-six feet.” It also appears by the description that the columns are twenty feet in height, so that the superstructure supported by them is twenty feet above the surface of the street. It also appears by the description that only one of the columns, namely, that which is seventeen feet east of the west line of appellee’s premises, is in front of the premises, the column being twenty feet in height, fifteen inches in width and twelve inches in thickness. It is averred in each count of the declaration that Lake street is eighty feet in width. In Rigney v. City of Chicago, 102 Ill. 80, the court say:

“ While it is clear that the present constitution was intended to afford redress in a certain class of cases, for which there was no remedy under the old constitution, yet we think it equally clear that it was not intended to reach every possible injurjy that might be occasioned by a public improvement. There are certain injuries which are necessarily incident to the owners of property in towns or cities which directly impair the value of private property, for which the law does not and never has afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street; if it does nob practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie.” Ib. 80.

In Louisville S. R. R. Co. v. Hooe, 18 Ky. Law Reporter, 521, decided by the Kentucky Court of Appeals, damages were claimed by the plaintiff for the alleged obstruction of his right of ingress and egress, by a street railroad. The court say:

“ As we have seen, one of the elements of damages submitted by the instructions was the obstruction of appellee’s passage to and from her property, and yet when we look to the proof we find that the rails of the track are level with the street and not nearer to the property than some thirty- or forty feet, and from the walls of the house to the pavement the distance is about eight feet, leaving from twenty to thirty feet for pavement and street. Within this space it is manifest from the proof there is plenty of room for vehicles to pass without any inconvenience, without even crossing the track or touching the rails. There is, however, no such obstruction here as authorizes recovery. On this question the authorities are uniform and conclusive.” * * * “ The obstruction must consist of a substantial interference with the use of the property.”

The question presented is precisely the same as if the cause had been tried on the general issue, and appellee had put in evidence the description of the elevated structure contained in her declaration. In that case, as in this, the question would have been, whether the structure, as described, practically or materially interfered with appellee’s access to or egress from her premises by means of the street. We are of opinion that reasonable minds can not reasonably differ in regard to that question; that the only reasonable conclusion is, that appellee’s right of ingress and egress is not materially interfered with by the structure; that the structure, in so far as access to and egress from her premises is concerned, does not practically affect the use or enjoyment of her property. It is averred in each count of the declaration that appellant constructed the road under and by virtue of an ordinance of the city of Chicago.

We are of opinion that the first count does not state a cause of action, and that the demurrer to it should have been sustained.

It is alleged in the second count, that by reason of the structure the light and air are and will be greatly hindered and obstructed from the premises, in consequence of which the premises have been permanently damaged. It can not be known merely from the description of the structure and the operation thereon of appellant’s trains of cars, as alleged in the count, whether or not the light is or will be materially excluded from the premises by the structure and the operation of the train. The determination of this question must depend on evidence, and we think the count sufficient, and that the demurrer thereto was properly overruled.

The gist of the third count is contained in the following allegations:

“ By means whereof the noise and disturbance and vibration of said premises and the building situated thereon are great and continued, and the operation of said railroad by electricity causes a continual buzzing and obnoxious sound, and the plaintiff and her tenants have not been able to obtain the necessary and required amount of rest and sleep, and thereby the peace, quiet and enjoyment of said premises have been greatly interfered with, and by reason thereof, the property of the plaintiff has been permanently damaged and depreciated in value by the said wrongful acts of the defendant in the construction, maintenance and operation of said road as aforesaid,” etc.

In Louisville S. R. R. Co. v. Hooe, supra, cited by appellant’s counsel, which appears to have been carefully considered by the Kentucky court, the court say:

“ The testimony of the appellee, though not supported by other testimony, is ‘ that the trains shook her windows and caused the plastering to drop off in many places,’ and if so, she may recover special damages therefor. Such is not the ordinary result of running trains along the streets of towns and cities. If it were, there could be no such railroads operated without constant outlays for repairs to adjacent buildings.”

On petition for a rehearing, the court Say:

“ What we meant to decide in this case, and we attempted so to express ourselves in the original opinion, is, that from the proof then before us there had been no substantial and, therefore, no actionable interference with the appellee’s ingress and egress to and from her property, as such interference is required to exist before recovery can be had under the numerous decisions of this court; that this was also true as to smoke and noise from the trains. These, in the form they appeared to exist from the proof, were incidents of city life, and not substantial injuries. There is proof, however, of special damage to the plastering, etc., of the appellee’s house. Upon these principles the court below, upon a retrial of the case, will conform the instructions to suit the proof that may be offered.”

The Kentucky court clearly held that there might be a recovery for vibration caused by the operation of the road, resulting in special damage to the plaintiff’s premises. Appellant’s counsel cite, to the contrary, Roebling v. Trenton Pass. Ry. Co., 58 N. J. L. 666, which was an action by an owner of property abutting on the street, against the street car company, which latter was authorized by ordinance to construct its tracks in the street, and operate its cars by electricity. The court say:

“ The injuries by vibration caused by the weight of the cars of the company, combined with the speed at which they were run, belong to the same class of injuries as that which may arise from the setting of the poles. The owner of land abutting upon a street holds his title subject to .the inconvenience and injurious consequences, including those occasioned by noise and vibrations, resulting from a user which is consistent with the legitimate and proper use to which these public thoroughfares are devoted.”

We can not- avoid the conclusion that, in view of the constitutional provision, “ Private property shall not be taken or damaged for public use without just compensation,” as construed by the Supreme Court, any unusual vibration of a building fronting on a public street, by the operation of a railroad in the street, which causes substantial damage to the property, so that its market value is thereby decreased, is actionable. In the present case it is alleged that the vibration is great and continued, and that by reason of this and other causes mentioned, appellee’s property has been permanently damaged and depreciated in value.

Whether any unusual vibration is caused by the operation of appellant’s trains, resulting in special damage to appellee’s premises, is á question to be determined from evidence.

We are of opinion that the court properly overruled the demurrer to the third count of the declaration.

For the error in overruling the' demurrer to the first count, the judgment will be reversed and the cause remanded.