137 Ill. 123 | Ill. | 1891
Scholfield delivered the opinion of the Court:
The pleadings in this case are voluminous and prolix, but the substance may be stated thus: The action is case, and the cause of action alleged in the declaration is the permitting by appellee of a railroad company to exclude access to a city lot of appellant, fronting on Winnebago street, the use of which street is appurtenant to the lot, by erecting in the street, so-as to occupy it, in front of the lot, the approaches to a viaduct, for the travel on that street, over the track of the railway company. Appellee pleaded a grant by appellant of a part of the same lot to the railroad company, for a valuable consideration, for the purpose of erecting an embankment thereon to support, the superstructure and .railway track of that company in such a manner as to render the erection of the viaduct in Winnebago street indispensable. Appellant replied, denying that his grant to the railroad company was for the purpose alleged in the plea, setting out the deed in hcec verba, and averring that the grant was for no specific purpose, and that he had no-knowledge, at or before the grant, of the intention to erect the viaduct in the street in front of his lot. The circuit court sustained a demurrer to the replication, and appellant refusing to reply over, gave judgment thereupon for appellee, and this judgment, on appeal to the Appellate Court for the Second District, was affirmed by the judgment of that court.
The deed from appellant to the railroad company does not assume to convey any part of or interest in Winnebago street, but, upon the contrary, the description therein of the property conveyed is by monuments, courses and distances, so as to-include only property lying outside the street.
The contention of appellee is, and such were the rulings of the courts below, that all the damages to the part of appellant’s lot not conveyed, caused, not only by the building of the embankment for the support of the superstructure and railway track, and the operating of trains thereon, but also all the damages thereto caused by the erection and maintaining of the viaduct in Winnebago street, in front of that lot, were included in the consideration paid him for his conveyance. So far as the damages caused by the.building of the embankment for the support -of the superstructure and railway track, and the operating of trains thereon, are concerned, the contention is supported by Chicago, Rock Island and Pacific Ry. Co. v. Smith, 111 Ill. 363. The principle controlling in that case, is stated in a quotation from the opinion in Aiken v. Boardman, 2 Metc. 463, as follows: “A' grant being made for a valuable consideration, it shall be presumed that the grantor intended to convey, and the grantee expected to receive, the full benefit of it, and therefore that the grantor not only conveyed the thing specifically described, but all other things, so far as it was in his power to pass them, which were necessary to the enjoyment of the thing granted.” The principle will also be found stated in 2 Blackstone’s Com. 36, Shepard’s Touchstone, 89, and 2 Washburn on Beal Prop. (2d ed.) 662. And it was therefore held in the case referred to, that the deed of land for right of way for a railway company has the same effect, as between the parties, that a condemnation under the law of eminent domain, for that purpose, would have. But it must be obvious that this principle can have no application to anything not included within the grant,—as, .for instance, to damages caused by acts done by the railroad company upon other lands than those to which the grant relates,—for, as between the grant and damages resulting from such acts, it is impossible that there can be the relation of cause and effect, and it has therefore been held that a release of all damages on account of the laying out or construction of a railroad through and over the land'of the releasor does not cover damages occasioned to the releasor by the construction of the railroad over the land of other persons. Eaton v. B. C. and M. R. R. Co. 51 N. H. 504; Delaware and Raritan Canal Co. v. Lee, 2 Zabr. 243; St. L., I. M. and S. Ry. Co. v. Harris, 47 Ark. 340; Lewis on Eminent Domain, sec. 568; Mills on Eminent Domain, sec. 217.
The damages here sued for, instead of resulting from the building and operation of the railroad, resulted solely from an improvement in 'the street of the city, for the use of general public travel along the street, and although it is made in compliance with a contract between the city and the railroad company, whereby the city gives the railroad company the right to cross the street, it is an entirely distinct and independent improvement from that of the railroad proper; and the damages are, moreover, in the main, if not entirely, of that character which, before the adoption of the present constitution, would, under the authority of Moses v. Pittsburg, Ft. Wayne and Chicago Railroad Co. 21 Ill. 516, Roberts v. Chicago, 26 id. 249, and Murphy v. Chicago, 29 id. 279, have been held damnum absque injuria. Their extent and effect could not have been known at the time of the grant, and they could not therefore have been then assessed by condemnation. (Stetson v. Chicago, 75 Ill. 74.) Nor could any condemnation proceeding solely for the strip of land granted have given any right to ihe railroad company to cross, much less to make a viaduct in, Winnebago street. That could only be given by the city, and subject to its future supervision and control. Provision Co. v. Chicago, 111 Ill. 658.
If the motion had been made to carry the demurrer back to the plea, it should have been sustained;, but in our opinion it was error to sustain the demurrer to the replication, since it was a sufficient answer to the plea.
The judgments of the circuit and the Appellate courts are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.
Judgment reversed.
