196 Ill. App. 415 | Ill. App. Ct. | 1915
delivered the opinion of the court.
C. Hacker Company, the appellant, owned for many years prior to 1911 a manufacturing plant in the City of Joliet fronting westerly and abutting eighty feet on Collins street, and extending easterly along the right of way of the Michigan Central Railroad Company on the south about three hundred feet. It acquired its title after the purchase and occupancy by the railroad company of its adjacent right of way, and from the same source. In 1911 the railroad company, in elevating its tracks pursuant to an ordinance of the City of Joliet requiring such elevation,' permanently closed Collins street to travel by vehicles at a point about thirty feet south of appellant’s property where a subway fifteen feet wide for foot passengers only was constructed in the place of the grade crossing of the Michigan Central Railroad Company that had Before been at that place. The Chicago, Rock Island & Pacific. Railway Company, after the elevation of the tracks, operated its trains on the right of way of the Michigan Central Company adjacent; to appellant’s premises and across Collins street. The result of this changed condition was to increase the traffic on the Michigan Central right of way adjoining appellant’s premises, and because thereof, and perhaps also because of the elevation of the tracks, to increase noise, dust, soot, cinders, odors, smoke and vibration occasioned by the operation of the road. The raising of the embankment south of appellant’s premises to some extent obstructed the view therefrom. This action was brought against the City of Joliet and the two companies to recover for the alleged injuries occasioned by the improvement. The principal claim is that the closing of Collins street to travel by vehicles has interfered with appellant’s ingress to and egress from its premises.
To a declaration setting out the facts above stated, appellees pleaded the general issue. On a jury trial appellant introduced evidence of what had been done, and of the opinions of witnesses that the market value of appellant’s premises had been much diminished thereby. Then it was agreed by counsel that the court should determine whether there was any basis for recovery on the evidence so far introduced. If he should hold there was, then further testimony should be introduced. If he held there was not, then the plaintiff would appeal. Each of the appellees moved the court to exclude all evidence (specified in some detail) upon which a verdict could be based, apparently upon the theory that none of the injuries which the evidence tended to prove gave appellant a cause of action. Appellees also moved the court to strike out the opinion evidence of witnesses as to the depreciation of the market value of appellant’s premises on the theory that the examination of the witnesses showed that their estimate of damages was based, in part at least, on elements that could not be properly considered. The court sustained all these motions and granted further motions by appellees to direct a verdict of not guilty. Judgment on the verdict followed, from which this appeal is prosecuted.
The intention of the parties and the trial court was to obtain a final judgment as to which, if any, of the injuries complained of are actionable. "Until that question is settled, opinions of witnesses cannot be obtained as to depreciation in market value from injuries that give a legal cause of complaint. We are inclined to hold that if appellant has a cause of action for any injury resulting from the change in Collins street there was evidence tending to show a pecuniary loss from that cause alone, and, if so, the court erred in directing a verdict for the defendants, and it is immaterial on that question whether the injury was great or small.
Collins street, as platted and used before the time in question, entered Washington street about one hundred feet south of appellant’s property. Washington street runs in an east and west direction, and Jefferson street, running in a southeasterly direction, enters it at the same point. The Michigan Central right of way extends east and west past this point of intersection of said three streets. One hundred and fifty feet north of the north line of appellant’s property on Collins street is the south line of Van Burén street, which runs parallel with Jefferson street. Prior to the passage of the traffic elevation ordinance the right of way of the Bock Island Company paralleled the right of way of the Michigan Central Company, and was about two blocks north of it on Collins street. The Bock Island Company abandoned the use of that right of way on Collins street and operated its trains, as before stated, over the elevated right of way of the Michigan Central Company. Formerly the direct access to appellant’s factory was, as now, from Collins street only, leading north connecting with Van Burén street and south connecting with Jefferson and Washington streets. Access from the north is in no way disturbed. The elevation of the tracks narrowed Jefferson street to a width of thirty feet where it connects with Collins street, but that space allows free passage of vehicles so that there is no material interruption of travel from Collins street south to and on Jefferson street. But the change in Collins street requires vehicles from south of the improvement to go about two blocks further to reach appellant’s property than was before necessary. The territory south of this point of interruption on Collins street is thickly populated, and the evidence shows that this change of route for vehicles approaching from the south has materially decreased traffic by vehicles past appellant’s property on Collins street. The market value of urban business properties much depends upon the amount of travel by the premises. The location of other properties or public improvements, the improvement or nonimprovement of streets leading to and by a property, each and all tend to increase or decrease travel and thereby increase or decrease the desirability and market value of premises. As a rule the owner of property abutting on a public street has no legal ground for complaint if travel is diverted from his premises because of the vacation of a street at some distance therefrom, or because of the suspension or removal of some business, public or private, that drew travel in his direction. Our Supreme Court in Illinois Malleable Iron Co. v. Lincoln Park Com’rs, 263 Ill. 446, quotes with approval from Elliott on Boads and Streets (vol. 2, 3rd Ed., sec. 1181) as follows: “Owners of land abutting upon neighboring streets, or upon other parts of the same street, at least when beyond the next cross-street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.”
In City of Chicago v. Union Building Ass’n, 102 Ill. 379, on page 393, the court quotes with approval from American Law Register as follows: “For any act obstructing a public and common right, no private action will lie for damages of the same land as those sustained by the general public, although in a much greater degree than any other person;” and again quotes from McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508, to the effect that there arises a claim of compensation for a physical interference with a right which an owner of a house is entitled by law to make use of in connection with the house, unless the right is one which the owner possesses in common with the public, in which case there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world. Appellees’ counsel undertake to distinguish between interference with access and interference with ingress and egress, but the courts use the terms interchangeably, and it is true that municipal authorities in making authorized improvements in streets cannot, without compensation, interfere with a property owner’s access to his property from or by way of the street, or with his ingress and egress from and to the street. It is said in Illinois Malleable Iron Co. v. Lincoln Park Com’rs, supra, on page 451, citing several Illinois cases, that: “Owners of property bordering upon a street have, as an incident of their ownership, a right of access by way of the streets which cannot be taken away or materially impaired without compensation.”
The difficulty lies in exactly defining this right of access. That it cannot be confined to the immediate access from the street on which the premises abut is clear on the authority of Rigney v. City of Chicago, 102 Ill. 64, where an injury from constructing a viaduct along Halsted street and across Kinzie street in Chicago, about 220 feet west of the property owner’s premises fronting on Kinzie street, cutting off communication with Halsted street by way of Kinzie street, was held to give a right of action. That it cannot be extended to interference with an abutting owner’s access to his property by vacating or obstructing a street two or three blocks away is equally clear from the authority of City of Chicago v. Union Building Ass’n, supra, which case was decided at the same term of court, and in which it was held that the closing of LaSalle street in Chicago by the Board of Trade building, three and a half blocks from the owner’s abutting property, did not give a right of action because the owner was not specifically or particularly injured, and while it was true that persons passing from the owner’s property to Washington street to VanBuren street or to the depot to the south would have to go further than they otherwise wpuld, that it was the same kind of injury that will result to every one wherever located having to pass that route. It is said in that case that it must appear that the owner “has sustained a special damage with respect to his property in excess of that sustained by the public generally.” A similar use of the word “excess” is found in other cases, and has given rise to contention that a right of action may be based alone on the proposition that the plaintiff’s damages exceed those of others and the general public. But there is no significance in the fact of excess of damages if they are of the same kind as those sustained by the general public. This is made clear by the court in Village of Wennetka v. Clifford, 201 Ill. 475, where earlier authorities are cited; but that case holds on the authority of the Rigney case, supra, that the closing of a street, turning it into a blind court in front of the abutting owner’s property, is an injury distinct from that suffered by the public. City of East St. Louis v. O’Flynn, 119 Ill. 200; Parker v. Catholic Bishop of Chicago, 146 Ill. 158; Guttery v. Glenn, 201 Ill. 275; and Saunders v. City of Chicago, 212 Ill. 206, are among other eases illustrating the rule that damage sustained by an abutting property owner, from the vacation of a street or alley, of the same kind and character sustained by the general public, differing only in degree, gives no right of action. It is damnum absque injuria. If there had been an obstruction south of appellant’s property, turning Collins street in front of appellant’s premises into a blind court and cutting off access from the south, appellant would have thereby sustained an injury of different kind from that sustained by the public under the authority of the Rigney case, supra. If the obstruction had been 100 feet further south, leaving appellant uninterrupted egress at the south from Collins street to Washington street, as well as Jefferson street, it would have no right of action under the authority of the Union Building Ass’n case, supra, and later cases above cited, although the change in the street might have very materially lessened travel on Collins street passing appellant’s premises. Collins street is not turned into a blind court. Appellant still has free access not only to and from the street abutting its property and to the north, but also from that street directly south for foot passengers and directly south for vehicles excepting they must travel about two blocks further than heretofore. The inconvenience suffered by appellant in being compelled to travel this additional distance to reach that part of the city lying south of the improvement is of the same kind and character that is suffered by all people who desire to travel with vehicles in that direction, differing only in degree. The injury falls within the rule announced in the Union Building Ass’n case, supra, and not within the rule announced in the Rigney case, supra, and therefore though the market value of appellant’s property may have been diminished by the change in Collins street, no legal cause of action accrued therefrom.
We are of the opinion that the injuries complained of other than the obstruction of Collins street arise solely and only from the legitimate and proper operation of the railroads on the right of way adjacent to appellant’s premises. There is no physical interference with the corpus of appellant’s property. Light and air may be appreciably obstructed by the raising of the embankment as it would have been by the erection of a building on the land had it been owned by a priyate owner, and there may be an increase in noise and dust and confusion as there might be from a legitimate business of a private owner on adjacent premises. There may be a decrease in market value of appellant’s premises because of the use that the railroad company is making of its premises. All urban properties are subject to increase and decrease in market value because of uses legitimately made by other nearby owners of their land. They are only required to pay for increased value and not permitted to recover for decreased value so occasioned. Appellant acquired its property after the railroad company acquired and devoted to railroad purposes its right of way. Appellant no doubt purchased its property so located because of certain advantages arising from its proximity to the railroad, advantages absolutely necessary to the conduct of a manufacturing business. It must be presumed to have acquired its property with a view not only to those advantages but also to all disadvantages that might arise in the legitimate use of the right of way for railroad purposes. It had before the improvement a connection by means of a switch track with the railroad, and it is not claimed that this connection has been materially changed or disturbed by the improvement. We hold on the authority of Galt v. Chicago & N. W. Ry. Co., 157 Ill. 125, and Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, and authorities in those cases cited and discussed, that appellant has no legal grounds for complaint because of anything proven in regard to the operation of the road.
The trial court, therefore, did not err in directing a judgment of not guilty, and the judgment is affirmed.
Affirmed.
