62 Ill. 519 | Ill. | 1872
delivered the opinion of the Court:
It is first insisted, that the city is not liable to appellee for damages he may have sustained by reason of constructing the sewer so as to discharge the drainage from the city upon the premises of appellee. And it is said that cities have been compelled to construct such improvements for the preservation of the health of their citizens and for the promotioti of their comfort. And it is urged that the work was skillfully and well done. This may all be conceded, and still it does not follow that liability would not attach. It may be true that a city is liable to be compelled to afford sufficient drainage for the health and comfort of the people, but that would not. authorize them to so construct the work as to destroy or seriously impair the value of the property of an individual. Ho one would suppose that the city would have the right by drainage and sewerage to collect all of the dirty water, swill, putrid matter, and garbage of the city, or any portion thereof, and lead it to and discharge it in the door-yards of a portion of the inhabitants. That would be an invasion of private rights; that would be violation of every rule of law, and shock the sense of justice entertained by every fair-minded man.
Hor would it be in the slightest degree either a defense or excuse, to show that such a sewer or drain was constructed of the best, material, and the work performed in the most skillful manner, and the plan on the most approved model. In performing such duties they are required to construct such improvements in such a manner as to avoid injury to individual property. They have no right to concentrate the offal and filth of a city, which is a nuisance to the public, and discharge it upon the premises of an individual. If a public nuisance, and there is no means of making proper drainage without injury to individuals, let the community for Avhose benefit it is constructed, through their corporate government, by condemnation or otherAvise, make compensation. Every principle of justice and the dictates of reason would say that it is wholly wrong to impose the burden of the nuisance on one or a few citizens.
This precise question has not been before us, but in Nevins v. The City of Peoria, 41 Ill. 507, and The City of Aurora v. Reed et al, 57 Ill. 29, the same principle has been announced. In those cases it was held that the city had no right to so construct the drainage over the surface as to concentrate it on individual property; and if they should, they Avould be held liable for the damages thus inflicted. And the rule must apply with more force when all of the filth of various kinds accumulated and produced in a particular portion of the city is confined to a large sewer and carried and discharged on private property, with its concentrated gases and offensive odors produced by putrefaction. The city had no right to impose such a burden upon one individual, and in doing so, if injury was sustained, it must be held liable to make compensation.
It is next urged that the damages are so excessive that the judgment should be reversed. We regard this objection as well taken. It is not pretended that the noisome smells and offensive odors produced at the place where this sewer discharged this fetid water and matter, annoyed appellee or his family to the extent of the damages recovered. There could not be the least semblance of reason to say that such annoyance caused injury to the amount of $1900. But it is said, that the damage was sustained by depreciation in the value of the property upon which the sewer discharged, and in the loss of profits that might have been realized on sales that could otherwise have been made. It appears that the work has been so changed that the sewer is no longer a nuisance to appellee’s land. It is not, then, a continuing nuisance, and the question of damages is narrowed to the injury produced while it was continued.
Some of the witnesses, in estimating the damages, fixed the value of the land; estimated the interest upon the sum; fixed the rental value of the property; deducted the latter from the interest thus estimated, and took the remainder as the damages sustained; and the jury seem to have adopted some such theory, probably allowing a given time for the sale of the property in lots, and then estimated interest on the supposed purchase money from that time until the recovery was had. Such a mode of arriving at the damages is manifestly wrong. In the first place, the price for which the property w'ould have sold is conjectural. That purchasers could have been found at any such prices is mere assumption, as far as this record discloses. And there is nothing to show that it, or any considerable portion of it, could have been sold at the supposed value or even at reduced rates. To assume all of these conjectures as facts, and that must be done to warrant such an assessment of damages, was to act upon very remote conjectures.
It appears that appellee might, perhaps, have sold a small portion of the land for one thousand dollars. But there is no satisfactory evidence that the remainder could have been sold, or if it could, the price that could have been received is not shown. To sanction such a basis for the assessment of damages would be to authorize mere conjecture to be substituted for reasonable certainty. In such cases, only the damages actually sustained is the measure for a recovery. And the evidence should, with reasonable certainty, indicate the amount. And, while courts are reluctant to disturb verdicts because the damages are excessive in cases where there is no precise standard for their measurement, still the verdict must be sustained by the evidence. A jury in such cases do not have an unbridled license to fix such a sum as may be suggested by caprice, prejudice, or passion. This class of cases is unlike those in which punitive damages are authorized. In cases of the latter class, juries have some discretion; but not so in cases of the character of this. In looking at the testimony in any light in which we have been able to view it, we are constrained to hold that the damages are grossly excessive, and so much so that the finding of the jury should not be permitted to stand.
For this reason the court below erred in overruling the motion for a new trial, and the judgment is reversed and the cause remanded.
Judgment reversed.