Brand v. Union Elevated Railroad ( 1915 )

Mr. Justice McReynolds

delivered the opinion of the court.

By ordinary warranty deed from Calvin F. Rice, dated November 13, 1889, Edwin L. Brand became owner in fee simple of a lot, with five-story building (No. 259), fronting east on Wabash Avenue, described as follows: "The North Twenty-five (25) feet of Lot five (5) in Block seven (7) in Fractional Section Fifteen (15) Addition to Chicago.” The record reveals no other facts concerning any rights acquired by the grantee who held possession •until his death in 1900; and there is nothing to show how or conditions under which the City obtained and holds the street. Proceeding under a city ordinance the Union Elevated Railroad Company and other defendants during 1896 and 1897 caused construction of a double-track elevated railroad along the center of Wabash Avenue (100 feet wide); and since October 3, 1897,have operated the same.

On October 2, 1902, plaintiffs — Brand’s executors— commenced this common law action to recover a lump sum for damage consequent upon construction, permanent maintenance and operation of the railroad in front of the above-described premises.- After alleging such construction, method of operation, noise, dust, dirt, vibration and other objectionable results the declaration concludes: “All of which said disturbances and injuries and grievances above complained of, have continued from and since, to-wit, said October 3, 1897, hitherto, and have caused and are now causing and will henceforth continue to cause a great and permanent damage and injury to said premises and building and said rights and easements therein, and by means thereof the said real estate has been greatly reduced in market value, to-wit, in the sum of Twenty-five thousand dollars ($25,000).

“And the plaintiffs aver that said defendants became and are bound to make full compensation to plaintiffs for the said loss and damage under the Constitution and Laws of the State of Illinois; but the said defendants, though often requested, have not, nor has any or either of them, paid said loss and damage or any part thereof, but hitherto have wholly neglected and refused and still neglect and refuse to do so, to the damage of said plaintiffs of Twenty-five thousand dollars ($25,000); wherefore they bring this. suit.”

Twelve years after the road was put into operation and seven after institution of the cause it was brought on for hearing — November, 1909 — upon a plea of not guilty. Before the premises were viewed or any evidence taken, plaintiffs’ counsel in his opening statement outlining facts and issues said: “They allege and claim that the premises known as No. 259 Wabash Avenue, owned by Mr. Brand in his lifetime, and this cause of action surviving to them as executors of his estate; that that property has been damaged in its market value by the construction of the Elevated railroad structure in front of the premises for public railroad uses. . . . The law as it will be given to you, as we understand it, is that under the Constitution of Illinois . . . private property shall not be taken or damaged for public use without just compensation, and we sue under that clause of the Constitution and upon the idea, and the basis, as we expect the law to be given to you, that notwithstanding the City Ordinance allowed the construction of the road that' that is no bar to our recovery if damages have been in fact sustained. Damages in the eye of the law is damage to the market value of the property, usually arising from some interference with the private enjoyment or use of the property. . . . The theory is that this structure was built for public uses by the companies organized under the Railroad act of Illinois; . . . but it is a railroad in a street and upon a structure which is violative of the ordinary rights of the abutter in the street, unless in some way they can show some particular, special, immediate, well-defined benefit to that property itself. . . . The theory of the law is that so far as public works are concerned, if a damage is created to the property the property owner recovers in one lump sum for the damage, past, present and future. . . , Now we expect the evidence — and your view of the premises will be, as we think, the most important thing in the case — the actual, physical structure and its mode of operation and the noise and racket and pandemonium, as we would call it, that the road makes in front of the premises; the more or less obstruction to light and other inconvenience — some inconvenience of access and egress for wagons, and all that, all affecting the use of the property, and as we think, that will appear to you to be self-evident and the damage prima facie established; and then it will be for the opposition, if they can in any way show to you that there are any particular special benefits to this property apart from property generally and apart from the general travel, convenience which this property had a right to after the road was established.”

Without objection, the jury viewed the premises; Brand’s title was established by deed from Rice and right of plaintiffs to sue by their'letters, etc.; copy of ordinance granting authority for construction of the railroad was put in evidence, and also street sketch showing outline and location of rails, supports, etc. Plaintiffs introduced a single witness, engaged in the real estate business, who had been agent for the property and collector of the rents since prior to the road’s construction. He testified concerning the locality, the property, character of improvements, building of the road in 1896-7, operation, noise, dirt, obstruction to light, etc., resulting therefrom and the effect, the rents received, market conditions of lands in Chicago, the advance therein about 1898; etc. He declared the property’s market value was 14800 per front foot before and for three years after the construction, and somewhat later increased to $6500. They also endeavored to prove by him values on Michigan Avenue to the east and on State Street to the west, but this was declared inadmissible. On defendants’ motion the court directed a verdict of not guilty, stating the following reasons therefor-: “Now I agree fully with your [counsel for plaintiffs] contention that the measure of damages is the difference in the value of the property in question with the structure and that without the structure. But how is that measured? What is the basis of measure of those damages? Why, it is the price before the construction and the price immediately afterwards. That is the readiest and most available test of determining whether or not there was- damage. If there was testimony here that without the structure it would be worth so much and with the construction it would be worth so much less, that would be another question from that which is presented here. Your claim is not for depreciation of the value of the land by reason of the structure but because che structure has prevented its appreciation. It is not for deterioration of value but because the value has not advanced. Although the value has not advanced, it has not been proven by the evidence and there is no evidence tending to prove it did not advance by reason of the erection of this structure. Non constat that the structure was erected, there may have been many reasons that the value of the property did not advance and the only affirmative evidence in the case is that immediately before the erection of the structure, the price was so much and that for a period of some years afterwards, the price was so much. There is no evidence of depreciation at all. There is no evidence of right of appreciation which depended upon the erection of the structure and therefore I think you have not made out a case.”

The judgment of the trial court- was affirmed by both the Appellate Court (169 Ill. App. 449) and Supreme Court of Illinois (258 Illinois, 133). The latter in the course of its opinion said (p. 134): “Numerous errors were assigned in the Appellate Court, but counsel for appellants stated in his brief that all of them were withdrawn except those raising the question of the correct rule for assessing damages to property not taken but affected by a public use, and this is the only question discussed in the briefs in this court. . . . [p. 135] The undisputed evidence, therefore, was that the market value of appellants’ property was not depreciated by the construction of the road. It is claimed, however, that this was the result of general benefits common to all property in the neighborhood served by the improvement, and that such benefits should not be considered in determining the damages; that only special benefits, such as are a direct physical improvement to the property, like the draining of a wet, swampy tract of land by the improvement, or building a bridge across a stream running through the land,, which enables the owner to enjoy it with greater advantage by reason of the improvement, should be considered in determining whether the property is damaged. Appellants contend that the benefits to their property by reason of the improvement which operated to prevent a decrease in its market value were general benefits; that there were no special benefits, but, on the contrary, the improvement injuriously affectecb the use of appellants’ property by obstructing air and light, by noise and vibration, and by interference with access to their property, and they insist they are entitled to recover the" damage thus resulting without any reference to the other benefits that may have resulted from the improvement. This question is not a new .one in this State. Since the adoption of our present constitution [1870] and the passage of the Eminent Domain act [1872] the question has been passed upon by this court a great many times. ... In all three of these cases it was held the true measure of compensation for land not taken by the improvement was the difference between what the property would have sold for unaffected by the improvement, and what it would sell for as affected by it. . . . [p. 136] The rule announced in those cases has, with one exception, been followed in subsequent cases, down to Metropolitan West Side Elevated Railway Company v. Stickney [1894], 150 Illinois, 362, . . . [in which] “the court reviews all its previous decisions since the adoption' of the constitution of 1870 and sums up its conclusions in the following language: ‘It therefore follows that every element arising from the construction and operation of the railroad or other public improvement which in an appreciable degree, capable of ascertainment in dollars and cents, enters into the diminution or increase of the value of the particular property, is. proper to be taken into, consideration in determining whether there has been damage, and the extent of it. ’ ... jp. 137] . Appellants insist this decision and others in line with it are wrong; that the rule adopted in this State is contrary to the weight of authority in other States; . . . also, that the rule is in conflict with Keithsburg and Eastern Railroad Company v. Henry, 79 Illinois, 290, and §9. of the Eminent Domain act. It is quite true, the decisions in this State upon the question here under consideration are not in harmony with decisions of courts of last resort in some of our sister States, while they are in harmony with the decisions in some States. The conflict between the decisions in this State and the decisions of other States relied upon by appellants is not so much as to a rule of law as it is to the application of the rule. This court is in accord with the cases in other States holding that only special benefits are to be considered in making just compensation for land damaged by but not taken for a public use. The difference is principally as to what are general benefits and what are special benefits. Some courts hold that only those benefits are special which directly and physically operate upon the particular property in a manner different from and not shared in common by other property in the neighborhood and which enable the owner to use it with greater advantage. All other benefits which increase the market value of the particular property in common with other property in the neighborhood are held to be general benefits. This view has not been adopted- in this State. . . . [p. 139] The only case in this State that is out of line with the Stickney Case and those previously and subsequently decided is Keithsburg and Eastern Railroad Company v. Henry, supra, and that case has not been followed in any subsequent decision. . . . [p. 141] We are not disposed now to enter upon a discussion of the correctness of the rule adhered to for forty years, nor do we feel at liberty, even if we were so inclined, to overrule the large number of decisions that would have to be overruled to justify a reversal of this judgment. The judgment is in harmony with the law in this State, and is therefore affirmed.”

The Illinois constitution of 1870 provides — “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” The Eminent Domain Act of 1872, chap. 47, Rev. Stat. Ills. 1912, pp. 1099, 1101, provides — (Sec. 1) ' “That private property shall not be taken or damaged for public use without just compensation; and that in all cases in which compensation is not made by the State in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed.” (Sec. 9) “Said jury shall . . . go upon the land sought to be taken or damaged, . . . and after hearing the proof offered make their report in writing, . . . so as to clearly set forth and show the compensation ascertained to each person thereto entitled; Provided, that no benefits or advantages which may accrue to lands or property affected shall be set off against or deducted from such compensation in any case.”

Counsel delimit plaintiffs’ present position thus:—

“Appellants withdraw all and every their assignments of error or parts thereof as will leave open upon this record this one question, and will save all their legal and constitutional rights claimed in respect thereto, viz: Assuming that the evidence adduced on the trial and shown in this record tended inevitably and only to show that the property in question was worth as much after the railroad jp. question had been constructed as before it was constructed, or as much with the railroad constructed as without it, that the cause should still have gone to the jury. Or, differently worded: That in considering the effect upon the premises in question from the. railroad structure in question, the jury must exclude from consideration the enhancement in value of the property in question, if any, resulting from the facilities furnished by the improvement.”

The suit is for loss in market value consequent upon erection and operation of the elevated road and is now prosecuted upon the theory that the trial judge erred in not submitting questions of damage to the jury under positive instruction to exclude from market value subsequent to the construction such enhancement, if any, as resulted from facilities furnished by the improvement itself. It was, of course, necessary for the court to determine whether there was any evidence upon which such loss could be found. By merely viewing the property in 1909 the jury could not ascertain its market value either before or just after the road was built, and the only testimony relating thereto showed no change occurred. Neither could the jury tell without evidence what enhancement, if any, resulted from the improvement, and the record discloses none. In the circumstances we think the refusal to give positive direction to exclude from consideration something impossible of ascertainment was clearly right.

What we have said disposes of the essential point presented by the record, and it is unnecessary to consider the broad questions discussed in argument. It may not be contended upon any theory of compensation that the Constitution of the United States gave plaintiffs the right to an instruction not based on some evidence or to damages without proof. The judgment of the court below is

Affirmed.