23 Ill. App. 352 | Ill. App. Ct. | 1887
A person in the peaceable possession of real estate may maintain an action to recover damages for an injury to such possession. Such possession is also sufficient evidence of ownership to permit proof to go to the jury of any permanent injury to the inheritance, but when the fee is shown to be in another than the plaintiff, then he will be limited in his recovery to injuries to his possession and possessory rights.
The deed from the appellee to William Eddy conveyed the fee of the premises to the grantee therein and for any injury to the inheritance the right of action vests in him alone. Looking into the record it is seen that the evidence upon the question of damages is directed to the depreciation in the market value of the premises, and permanent injury to the house, caused by the erection and maintenance of the nuisance complained of, and there does not appear any sufficient evidence upon which the jury could form an intelligent opinion of the injury sustained by plaintiff below to his possession. It is quite evident from the amount of the verdict, considered in the light .of the testimony, that the jury allowed as damages the depreciation in the value of the premises. This could not have been properly allowed for another reason. The evidence shows that the use of the railroad had been abandoned and the conveyor destroyed by tire before the trial, consequently there can be no ground for the recovery of prospective damages for a continuance of the nuisance. As to the point made that the conveyor obstructed the light to the windows of the Eddy ‘house, it is only necessary to say that the proof is that the windows were but recently put in that side of the house, and after the appellant removed a building which had before that time excluded the light and air to a much greater extent than the conveyor did after its erection. The plaintiff failed to show any prescriptive right to the uninterrupted enjoyment of the light through these windows, and therefore, under the decision in Guest v. Reynolds, 68 Ill. 478, can not recover for its obstruction. The alley being a public one, its obstruction by the railroad embankment of appellant became a prrblic nuisance, as it does not appear they had any chartered right to construct it, and for an injury sustained in common with the public the plaintiff can not recover, but is limited to any special damage he may have sustained to his interest in the premises different from that to the general public. Rigney v. Chicago, 102 Ill. 64; C. & W. I. R. R. v. Ayers, 106 Ill. 511.
Eor the reason'stated the judgment will be reversed and the cause remanded.
Reversed and remanded.
