67 Ill. App. 351 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
The legislative grant authorizing the company to construct and operate the railroad, had no effect to relieve it from liability to answer in damages for nuisances, unless such nuisance arose as a necessary and natural result of the proper operation of its road. 19 Amer. & Eng. Ency. of Law, 923.
Damages resulting from negligent operation are not presumed to have been taken into account when the right of way was procured, but only such as necessarily and naturally result, though due and proper care be exercised. O. & M. R. R. v. Wachter, 123 Ill. 444.
When the injury is to physical comfort, and results in the deprivation of the wholesome and comfortable enjoyment of a home, the measure of damage is compensation for such physical discomfort and deprivation.
The amount necessary to compensate the plaintiff must be left to the sound judgment, experience and discretion of the jury, in view of the facts of the particular case. Gemp v. Bossham, 60 Ill. App. 84; Wood on Nuisance, 887.
But the court permitted appellee to introduce testimony as to the value of the property before and after the creation of the nuisance, and to show it had greatly depreciated in value. The verdict was largely based upon such evidence and is clearly excessive, if such testimony was not.competent.
The alleged nuisances did not effect a permanent change in the property of appellee, and were, within themselves, temporary in character. They were illegal and, the law assumes, will not continue forever.
It was, therefore," not proper to receive evidence that the property had been permanently depreciated in value.
The assessment should have been for past, not perspective damages.
The theory of law is the infliction of past damages will cause the abatement of a temporary nuisance.
If it does not, successive actions may be maintained, and damages, both compensatory and exemplary, awarded until the wrong-doing is discontinued. Schlitz Brewing Co. v. Compton, 142 Ill. 511.
The judgment is reversed and the cause remanded.