58 Ill. App. 51 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
Under the provisions of Par. 175 and 176, Ch. 24, Starr & Curtis’ Rev. Stat., page 508, the city of Centralia was empowered to establish and maintain water works, to acquire and hold the necessary land for that purpose by purchase, condemnation, or otherwise, and construct thereon, in a proper manner, a suitable and sufficient dam across this creek for the purpose of collecting water into a reservoir, to hold a supply of water for the use of the public, subject, however, to the provisions of Art. 2, See. 13, Const. 1870, providing that private property shall not be taken or damaged for public use, without just compensation. This dam, then, having been properly constructed, and being of a permanent character, to be maintained as a permanent structure, for a proper public use, appellee was entitled to recover in this one suit all the damage, present and prospective, necessarily resulting to him from its erection.
Where a structure is lawfully erected, if permanent in its character, and properly constructed, and a suit is brought to recover damages by reason of the erection of such structure, one recovery will bar all future actions for the same cause. Where the construction is faulty and imperfect, the rule does not apply. A structure so negligently erected may properly be deemed a nuisance, which may be presumed not to be permanent, and for the continuance of which, successive suits may be maintained, as often as an injury is thereby occasioned. C., B. & Q. R. R. Co. v. Schaffer, 26 Ill. App. Rep. 280.
Where the evidence tends to show that certain works built by a railroad company were permanent in their form and character, and that the injury thereby occasioned to the adjoining property was a loss to the then owner, for which he then had a cause of action, which did not pass to the plaintiff by his deed from said owner, the latter alone, and not his grantee, can maintain an action for the injury and resulting damage so occasioned. C. & A. R. R. Co. v. Calkins, 17 Ill. App. 55; Chicago v. Altgeld, 33 Ill. 23. Where an injury to real property is permanent in its nature, and not of a temporary character, the owner may recover, not only for the present, but also for future damages, as for depreciation in the value of the property, caused by the erection of an obstruction or nuisance, and such a recovery will be a bar to any other suits for damages, growing out of the continuance of the cause of injury, and the grantee of such owner can not maintain an action for such continuance. C. & A. R. R. Co. v. Maher, 91 Ill. 312; W., St. L. & P. Ry. Co. v. McDougal, 118 Ill. 229.
Where the original nuisance to land is of a permanent character, so that the damages thereby inflicted are permanent, a recovery not only may, but must be had for the entire damages in one suit, and such damages accrue from the time the nuisance is created. C. & E. I. R. R. Co. v. McAuley, 121 Ill. 160; K. & S. R. R. Co. v. Horan, 131 Ill. 288; C. & A. R. R. Co. v. Henneberry, N. E. Rep. Dec. 28, 1894, p. 1043.
Having found the facts to be that the dam was lawfully and properly constructed and permanent in its character, and a necessary part of a permanent public improvement, and was a permanent injury to appellee when it was built by appellant, by depreciating the market and rental value of his land, we reach the conclusion, fortified by the foregoing authorities, that appellee had the right in one action to recover all the damages for the injury so occasioned.
The damages assessed were not excessive, but quite moderate. The depreciation in the market value of land, arising from a permanent injury thereto, is a proper measure of damages to the owner. K. & S. R. R. Co. v. Horan, supra.
Appellant insists that the court erred in holding certain propositions to be the law, as requested on behalf of plaintiff, and in refusing to so hold certain propositions on behalf of defendant. We perceive no error in this regard. The law as held by the court, under the evidence, was in harmony with the decisions cited, and the refused propositions were in conflict therewith. Some other reasons are urged for reversal, but an examination of the record satisfies us they are without merit. The judgment is affirmed.
