Chicago & Western Indiana Railroad v. Cogswell

Watebmax, P. J.

In 1880, appellee was the owner of a ten-acre tract of land in the toAvn of Cicero, Cook county, Illinois, AAdiich Avas bounded on the north by Madison street, on the south by the center line of Jackson street, extended, and on the Avest by what Avould have been the center line of West 46th. street, if West 46th street had been extended south of Madison street.

Appellee’s land, including streets, was 333 feet east and west, by 1,320 feet north and south. Appellant, being a railroad company, had, under an ordinance of the town of Cicero granting it the right so to do, constructed and was operating a surface railroad, which ran north and south, immediately west of and adjoining the west line of appellee’s land. While thus operating said railroad, and while, under the ordinances of the town of Cicero, said railroad was permitted to cross Madison street—keeping and maintaining all street crossings in good condition, and so that the same might be easily crossed in all directions without danger to persons or property, the railroad company condemned the west thirty-three feet (or one acre) of appellee’s land for the purpose of its right of way, thus making its right of way sixty-six feet wide. At the time of the trial of the condemnation case in 1884 a jury was waived, and the judge viewed the premises; the surface road was there and in operation at that time; the finding awarded the value of one acre, and declared the remaining nine acres would not be damaged; judgment was entered on the finding, the money was paid, and the appellant went into possession. In 1885, the appellant procured a new ordinance granting it the right to erect a viaduct over Madison street and to construct its approach thereto from the south, and it 1885 it so constructed said viaduct and approach, that the structure was about eighteen feet high at Madison street and about eight feet high at the south line of appellee’s land. Appellee claims there was no authority of law at the time of the condemnation proceeding to consider the damages to the remainder by reason of an elevated structure, and that this is such a change of plans as authorizes, under the law, the recovery of such additional damages as the evidence shows was caused by such change.

The questions presented in this record, briefly stated, are: Where, in condemnation proceedings instituted by a railroad, the damage to property not taken has once been judicially ascertained, and thereafter the grade of the road opposite such property is raised from eight to seventeen feet, and thereby the value of the property is lessened, is the owner of such property entitled to additional compensation, Avit-liout Avhich the statute proAÚdes that priArate property shall not be taken for public use ?

That a recovery may be had for damages caused by a change in the plan of construction Avitli respect to aaTlícIi damages Avere originally assessed, is established both upon principle and authority. The reason is obvious. The property OAvner is entitled, in the absence of anything showing Iioav the road is to be constructed or used, to such damages as it is reasonably probable Avill ensue from the construction and operation of the road. C., B. & N. R. R. Co. v. Bowman, 122 Ill. 595.

If the road desires to stipulate for any particular mode of construction or operation, and have an assessment of damages limited to such mode, it has a right to do so. C. & A. R. R. Co. v. J. L. & A. Ry. Co., 105 Ill. 388; Jacksonville & Savanna R. R. Co. v. Kidder, 21 Ill. 131; Hayes v. Ottawa, Oswego & Fox River Valley R. R. Co., 51 Ill. 373.

Manifestly, then, damages having been assessed upon the basis of a certain plan of construction, if a change is made to another mode the property owner is entitled to such additional damages, if any, as arise from a manner of construction concerning AA'hich there has been no assessment or payment of damages. Wabash, St. Louis & Pacific Ry. v. McDougall, 118 Ill. 229-238; same v. same, 126 Ill. 111-120; C. & A. R. R. Co. v. J. L. & A. Ry. Co., 105 Ill. 388; Peoria & C. Rock Island Ry. Co. v. Birkett, 62 Ill. 332.

It folloAvs, therefore, that damages done to land, not taken, luiving once been assessed, when additional damages are claimed upon the allegation that the assessment aaúiícIi has been had \Aras upon the basis of a special mode of construction or operation which has since been departed from, the first question for determination is, to what especial kind of construction or operation AA'ere the damages in the first litiga^ tion had Í In other Avords, Avhat are the sources from AA'hich the damages, once awarded, sprang ? If in the former proceeding there was no restriction whatever, if damages were then assessed for everything which it was reasonably probable would ensue from the taking and use of certain land for railroad purposes, then there can be no additional damage from the use, for the same purpose, of the same land.

It does not appear that in the former proceeding any particular mode of construction was stipulated for, or that any special plan was submitted; but it is shown that the judge before whom the cause was tried, a jury having been waived, inspected the premises and saw that the road was then constructed and passed the premises now under consideration, at about the natural surface of the ground. Were, then, the damages in the former proceeding assessed with a view to the existence of a surface road only ?

In St. Louis, Jacksonville & Chicago Ry. Co. v. Mitchell, 47 Ill. 165, it was held in a proceeding to obtain the right of way across certain lands for the purpose of reducing the damages, evidence should have been admitted to show that the company had contracted for the building of a fence through the land and had provided the lumber therefor. It would seem from this that if the jury had visited the premises and found a fence already constructed by the company, they would have been bound to take such fact into consideration in arriving at their verdict.

In Carpenter v. Eastern & Amboy R. R. Co., 24 N. J. Eq., it appeared that the commissioners to assess damages from the taking and use of a right of way for a railroad, proposed to be located through a farm, were informed by agents of the company that the road would pass over the farm by an iron bridge, supported by abutments, and assessed damages, and a settlement was made upon that understanding. The road having changed its intention and concluded to cross the farm by a “ fill,” the court upon this state of facts held that the owner was entitled to recover such increased compensation as was equal to the increased damage. In Boyd v. Begley, 53 Penn. St. 387, it is said that when a petitioner adopts a grade before the damages are assessed, and marks the grade by grade pins along the route, these having been seen by the jury, it must be presumed to have assessed such damages as would be caused by the construction of a road with the grade marked, and with the filling or embankments indicated. It is questionable whether, in view of the proximity of Madison street, which the road crossed, appellant ■ had at the time of the former proceedings any such authority from the town of Cicero, in which these lands were, as would have enabled it to have passed the premises of appellee upon any grade save one nearly that of the natural surface. The ordinance authorizing the construction of a viaduct seems to have been passed September 26, 1885; the judgment in the former proceeding was entered May 31, 1881. "We are, for these reasons, of the opinion that damages must be presumed to have befen in the former proceeding assessed upon the basis of a road passing the premises of appellee at about the natural surface grade. The change of construction that has been made since the former proceeding, is that the road passing and near to the premises of appellee, has been raised, an enbankment having been constructed, varying in height from eight to seventeen feet; this embankment has been constructed and the road runs upon land which the company own in fee.

What are the elements that may be considered in ascertaining the sum, if any, which appellant is entitled to recover because of the building of this embankment and the running of trains thereon ?

Any real property may be damaged or benefited by what is done upon property adjacent to or in the vicinity. As the owner can not be called upon to pay private individuals or corporations for the benefit which may come to his property from the construction by them of manufactories or fine dwellings in the vicinity of his premises, so there are certain depreciations in the value of his lands, for which, arising as they may from things which every owner of property had a right to do, he can not claim compensation. If an unsightly structure be erected or suffered to remain in a beautiful residence neighborhood, its tendency is to depreciate the value of surrounding property, but it is not a damage for which a recovery can be had. So to a beautiful view; the prospect which one has from his windows, adds to the value of his home, and positive damage is done when his- neighbor, by the rearing of a lofty structure, shuts out all sight of the ■ pleasant landscape; but the law affords for such damage no redress. The maxim, “ sic utcre tuo ut ctMemom non laedas,” in its practical application, means only that one in the use of his own property must not infringe upon the lawful rights of others.

Had the strip of land 'to the west of appellee’s premises, upon which this railroad runs, been owned by a private citizen, he might have built thereon an embankment or a wall seventeen or forty feet high, without rendering himself liable to appellee for the loss of view he had thus caused, or the difficulties he had thrown in the way of the opening of streets running through and west of the premises of appellee. So, too, such private owner, in an uninhabited neighborhood, such as this was, might have built upon his premises a saw-mill, an ice-house, cattle sheds or other structures, undesirable in a fine residence neighborhood, but whose erection would have been a lawful use, and one of which appellee could not have successfully complained in a court of justice. Buildings and works of this class might have been entirely inconsistent with the use to which appellee designed to put his property; they might have rendered his property less or more valuable than it otherwise would have been—might practically have put money in or taken it from his pocket; yet he would not in either case have been called upon to pay, or been entitled to receive compensation.

We understand that the constitution and laws of this State, so far as compensation is concerned, place the taking and use of property for public purposes on the condition that exists with respect to private use. The owner of property taken or held for public purposes, if he devotes his property to any use which would be a nuisance,- or would be actionable if done by a private citizen, may be made to pay just compensation for the damage done to the property of others by such use; but the liability of the owner of property devoted to public uses is no greater than is that of the owner of property held for private purposes; the right of one to use without being liable for damage is the equal of the other.

In Rigney v. The City of Chicago, 102 Ill. 64-80, the court says : “ There are certain injuries which are necessarily incident to the ownership of property in towns or cities, that 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.” And further in the same case the court said: “ In all cases, to warrant a recovery, it must appear there has been some direct, physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.” To the same effect are the cases of City of Chicago v. Union Bldg. Association, 102 Ill. 379-394; City of Olney v. Wharf, 115 Ill. 519; Hall v. Mayor of Bristol, 2 Law Repts. C. P. C. 322; Chamberland v. West End Ry. Co., 10 E. C. L. 604.

The erection of an embankment upon the premises of appellee, no right of access or approach having been disturbed, did not, nor does the mere running of cars thereon, constitute a physical disturbance of any of appellee’s rights. The court ought not, therefore, to have permitted evidence of damage, because of the erection of an embankment, to have been given to the jury. So far as appears, appellee never had any rights touching the construction of an embankment upon the premises of appellant, or to have his, appellee’s, land left so that streets could be cut across it without going under a railroad track, or to have the strip of land lying-west of his grounds unoccupied by undesirable structures, or such as would depreciate the value of his property.

Appellee, we presume, did have the right that dust, smoke and cinders should not be thrown upon his premises; such action upon the part, either of a private individual or the public, it is quite likely would have been a direct physical-disturbance of a right .which appellee had in connection with his property; for such disturbance upon the part of an individual, the law has always afforded a remedy; and in this State, since the adoption of our present constitution, providing that private property shall not be damaged for public use without just compensation, a remedy is given to the owner for such interference, whether by or for the public, or by private individuals.

Our attention has been called to the language of the Supreme Court, repeatedly used, that in cases arising under the provisions of the constitution relative to the damaging of-property for public use, “ the depreciation is determined by comparing its value before and after the structure is made which produces the injury.” As applied to the facts of the cases in which such language was used, it was correct and applicable, Such language has not, however, so far as we are aware, been used in a case like the present, or in any instance where an attempt had been made to recover damages for the doing for public purposes, of that for which, if done for private uses, no action would have lain.

In the former proceeding damages were awarded to the owner of these premises for the taking of a strip of land thirty-three feet wide, adjacent to and west of the land now under consideration, and,an adjudication was also had as to the damage which, as the owner of these premises, it was reasonably probable he would sustain from such taking, and from the construction and operation of a railroad as then proposed and indicated; that included such throwing of smoke, cinders and dust upon.these premises, as it was reasonably probable would ensue from a railroad running at about the natural surface of the ground. If the subsequent elevation of the track causes any more than this quantity of cinders, etc., to be cast upon the premises of appellee, and thereby he suffers an additional damage, he is entitled to recover therefor.

In saying what we have as to the throwing of dust, cinders, etc., upon the premises of appellee, we do not wish to be understood as prejudging the case at bar on another trial, as in all cases of this kind the right to recover for interference with an alleged right appurtenant to property must necessarily depend on the existence of the rights asserted. In this respect the rights as to property vai’y with the situation, surroundings, etc. If a person should erect a dwelling house in the immediate vicinity of a blast furnace and rolling mill, it would hardly be contended that, having seen fit to go and make his home in such a neighborhood, he would be entitled to enjoin the proprietors of the furnace from filling the air with smoke, or from disturbing the serenity of his repose by the loud and jarring noise that the carrying on of their works necessarily involved.

Every person has a right to the reasonable enjoyment of his property. What is a reasonable use of one’s property must necessarily depend upon the circumstances of each case; for a use for a particular purpose and in a particular way, in one locality, might be lawful, and a nuisance in another. Barnes v. Hathorn, 54 Me. 124; Wiers’ Appeal, 74 Penn. St. 230; Bamford v. Tumley, 3 B. & S. 62; Tipping v. St. Helen’s Smelting Co., 4 B. & S. 608.

It is urged that the conclusion arrived at in the former proceeding, that these lands would not be damaged by the construction of this road running at about the natural surface grade, must have been upon the theory that the benefit derived from the opportunity thus afforded for switch connection from manufactories and coal yards that might be located on these lands, equaled any damage incident to its construction and operation. Appellee insists that there is no opportunity for switch connection from his premises with the road as now constructed, and that consequently his lands do not now have a benefit considered in the former proceeding.

Upon what theory the court came to the conclusion arrived at in the former proceeding we can not know. By the former judgment it was established that these lands were not damaged by the road as it then existed. By the change of grade which has since been- made, the right to have switch connections has not been taken away. Eo switch connections have been destroyed; the property was then and is now vacant and unoccupied. All that has been done in this regard is that the present grade may require that the manufactories, etc., hereafter located on these premises shall, in order to have useful switch connections, be constructed with reference to the present situation; such construction may be more expensive and may be more or less advantageous than one adapted to switch connection with a road running at a natural surface grade. It is not difficult to see that there may be advantages or disadvantages in having a railroad pass one’s premises upon a viaduct seventeen feet high rather than upon the surface of the ground. All these things may be properly taken into consideration in this case, it being borne in mind that a recovery can be had only for such damages, if any, as are in addition to any that arose from the road when running at about the natural surface; and that damages can only be awarded for a direct physical disturbance of a right which the property owner has in respect to his property, a right which exists in respect to the use, for private as well as public purposes, of other property.

The judgment of the Circuit Court will be reversed and the cause remanded. Reversed mid remmided.