Aldis v. Union Elevated Railroad
68 N.E. 95
Ill.
1903
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

This was an action on the case brought by the appellants, against the appellee, in the circuit court of Cook county, to recover damages by reason of the depreciation in value of the premises of appellants, located at the north-west corner of VanBuren and Dearborn streets, in the city of Chicago, upon which is located the Monadnock building, caused by the construction and operation by appellee of its elevated railroad in VanBuren street in front of said premises, and the erection of a station, p] atform, stairs, etc., at the intersection of said streets. The declaration, as amended, contained two counts, which, after describing the premises and the structure of said elevated road and method of its operation, averred that by means of the construction and operation of said elevated railroad, station, etc., their means of access to the said building and premises had been cut off, and the light, air and view obstructed, and the enjoyment of their property disturbed by the throwing of smoke, dust, cinders and filth into and upon said building and premises, by the creating and causing of loud and ominous noises and by the causing of the ground and building thereon to shake and vibrate; that the railroad is a permanent structure, and that said building and premises are greatly damaged by the construction and operation of said elevated railroad, and its appurtenances, in the streets upon which said premises abut. A demurrer was sustained to the declaration, and the appellants having elected to stand by the same, the cause was dismissed for want of a sufficient declaration, and the appellants have prosecuted an appeal direct to this court, on the ground that the construction of the first clause of section 13 of article 2 of the constitution of 1870, providing that “private property shall not be taken or damaged for public use without just compensation,” is involved.

The main contention of appellee is, that its elevated railroad having been constructed in the public streets of the city of Chicago by the permission of the mayor and city council, the appellants, as abutting owners, can recover no damages caused by the location, construction and operation of said elevated railroad in the streets upon which their property abuts, unless the road is so improperly constructed or negligently operated as to make it a nuisance. We do not agree with such contention. The constitutional provision above referred to provides that private property shall not be damaged for public use without just compensation, and in the case of Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, where, at the suit of an abutting owner, it was sought to enjoin the construction of an elevated railroad in one of the public streets in the city of Chicago, the relief was denied upon the express ground that the complainant had an adequate remedy at law to recover all damages which his abutting property might sustain by reason of the construction and operation of the elevated road in the street in front of his property. In that case it was said (p. 518): “ ‘Where the fee of the street is in the city, such damages as the abutting owner may suffer from the laying of a railroad track in the street are merely consequential,—so far, at least, as they affect the property abutting on the street. In such case, as there is no physical taking- of the land, injunction will not lie to. enjoin the taking, the remedy being an action at law for damages.’ * * * His injury is a depreciation of the property, which is capable of being estimated in money and recoverable in an action at law, therefore a court of equity will not interfere by injunction.” This case has never been overruled or modified, but is sustained by a long line of Illinois cases, and is a fair statement of the law as it has existed in this State since the adoption of the constitution of 1870. Under the constitution of 1848 a remedy for an injury like this did not exist, but one is given by the constitution now in force. Rigney v. City of Chicago, 102 Ill. 64.

In case it is necessary to take private property for public use the compensation must be fixed and paid before possession can be taken and the improvement made, but in a case like this, where no property is taken, the improvement may be made before the damages are ascertained and paid, the property owner in such case being driven to his action at law for damages. Such action, however, is in the nature of a condemnation suit, and when resorted to, the measure of damages and rules of evidence which are to be adopted are the same as though a direct proceeding by condemnation had been brought to determine the amount of damages to be paid prior to the making of the improvement. (Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203; Illinois Central Railroad Co. v. Turner, 194 id. 575.) The fact that the improvement has been made before the damages are determined and paid will not prejudice the property owner to recover the amount justly due him by reason of damage done his property. While a city may lawfully grant to an elevated railroad company, by ordinance', the right to construct its railroad in its streets, it is powerless to grant to such company the right to damage the property of the abutting owner, (Illinois Central Railroad Co. v. Turner, supra,) and when the property of an abutting owner is damaged, his right, under the constitution, to compensation is not confined to a recovery for the tortious acts of the railroad company, but he may recover for an injury to his property which is the result of an act which is perfectly legal. Calumet and Chicago Canal and Dock Co. v. Morawetz, 195 Ill. 398.

While it seems to be conceded by the appellee that the rules of law hereinbefore announced apply to railroad companies in general whose tracks are laid in the streets of a municipality, it is contended they do not apply to appellee’s road, as, it is said, it is a street railroad, and the construction thereof in the streets of the city of Chicago is not an additional servitude upon said streets. It has been held in a number of cases, notably in the Doane case, that the construction of an elevated railroad in a street where the fee to the street is in the city is not an additional servitude upon the street,—that is, that its construction therein with the consent of the municipality is not unlawful, as being a diversion of the street from the public use for which it was originally dedicated or acquired. While the doctrine of that and kindred cases is not questioned as between the abutting owner and a railroad company occupying the street with its railroad, on principle we see no difference as regards his right to recover damages for an injury to his property abutting on the street by reason of the construction and operation of a railroad in the street, whether it is a street or commercial railroad. The effect upon his property is the same, and, under the constitution, if the same is depreciated in value by reason of the construction and operation thereof it has been damaged, and he can recover. In Illinois Central Railroad Co. v. Turner, supra, and in Calumet and Chicago Canal and Dock Co. v. Morawetz, supra, interferences with the property of an abutting owner by reason of the construction and operation of a railroad in the public streets of a city, although by the consent of the city, similar to those averred in this declaration, were held to give a cause of action to the abutting property owner.

The circuit court erred in sustaining the demurrer to the declaration. Its judgment will therefore be reversed and the cause remanded to that court, with directions to overrule the demurrer. S6m-secZ and remanded.

Subsequently, on petition for rehearing, the following additional opinion was filed:

Per Curiam: The appellee has filed a petition for a rehearing on the ground that its road is not an additional servitude upon the streets upon which appellants’ property abuts, and it is said if damages are allowed the appellants for loss of air, light, view, access and the comfortable and safe enjoyment of their property, caused by the proper and reasonable operation of appellee’s road, they will be paid for what they have waived, or be twice compensated. As held in the original opinion, this contention is not sound. At the time said streets were dedicated or condemned, appellants or their grantors did not part with, but retained, as appurtenant to said property, the right of access to said streets, the right to enjoy the air and light which pass over said streets, the view and the comfortable and safe enjoyment of their property; (Field v. Barling, 149 Ill. 556; Doane v. Chicago City Railway Co. 160 id. 22; Kotz v. Illinois Central Railroad Co. 188 id. 578;) and if the appellee has constructed and is engaged in operating an elevated railroad in said streets in front of appellants’ property, the effect of which is to destroy these rights and thereby depreciate the value of appellants’ property, it would seem too clear for argument that the property of appellants has been damaged, and if damaged, that the appellants have not waived or been paid such damages.

In Aldrich v. Metropolitan West Side Elevated Railroad Co. 195 Ill. 456, the road was constructed upon the company’s own right of way, and the court expressly declined to consider the question of- the rights of an abutter where the road was constructed in the street in front of his property. That case is therefore not an authority, as is contended by appellee, conclusive of the question that the appellants cannot recover in this case.

The declaration averred and the demurrer admits the road of appellee to be an improvement of a permanent character. In Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203-, which was an action on the case to recover damages for depreciation in the value of property from the operation of a railroad in a public street upon which the property abutted, it was stated such “action for damages may be regarded as in the nature of one kind of condemnation proceeding,” and that all the damages, past and future, caused by the operation of the' road, might be assessed in one suit.

After a re-examination of the original briefs in connection with the petition for rehearing filed in this case, we have reached the same conclusion wei reached when the case was first considered. The petition for rehearing will therefore be denied. Rehearing denied.