White v. Metropolitan West Side Elevated Railroad
39 N.E. 270
Ill.
1894
Check Treatment
Craig, J.:

Section 13 of article 2 of the constitution provides: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” It will be observed that no part of the block of ground north of Tilden street was taken by the railway company, and, as has been seen, the railway company took only a part of lot 6, which is separated from the block by a street. Whether appellants’ block lying north of Tilden street has been or will be damaged by the construction and operation of the railway on and over a part of lot 6 is not the question presented by this record, but the question here involved, and the only one, is, whether appellants are entitled to recover whatever damages they may have sustained, if any, in this proceeding.

In Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74, a bill was filed by a lot owner who owned lots fronting on the street, to enjoin the construction and operation of a railroad in the street, under an ordinance passed by the city of Chicago, until the damages should be ascertained and paid. There no part of the lots had been taken, and the fee of the street upon which the railroad was constructed was. in the city. It was held, first, that a court of equity had no jurisdiction, — that the complainant’s remedy was at law; and in discussing the right of an owner to recover damages to property not taken, under the Eminent Domain act, it is said: “A portion of the land having been taken, the remainder may be damaged in consequence of. the taking. Where the party seeking to make the condemnation has not embraced all of the owner’s contiguous lands not actually taken, but damaged, the owner may file a petition in the nature of a cross-petition. * * * It must be in this sense the word ‘damaged’ is employed in the aét to provide for the exercise of the right of eminent domain. The damages are direct and physical, and result from taking a portion of the land. But where no portion of the land is taken, and the damages suffered are consequential, by reason of, what the corporation does upon its own land or that of another, it does not seem there is any warrant for instituting proceedings for the ascertaining of such damages.” The rule declared in the Stetson case was approved in Peoria and Rock Island Railway Co. v. Schertz, 84 Ill. 135.

In the discussion of the same question in Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, it is said: “It has, however, been repeatedly held that a railroad company acquiring the right to lay its tracks in the streets of a city is not required to institute condemnation proceedings in respect of damages which may accrue to owners of property abutting such streets; and where no part of the land of an abutting lot owner is entered upon or sought to be condemned for public use, the owner is not entitled to have proceedings instituted, under the Eminent Domain law, to ascertain what damage his property may sustain in consequence of the construction and operation of a railroad, * * * but the land owner is remitted to his action at law to recover his damages.”

In Parker v. Catholic Bishop, 146 Ill. 158, it was held: “Where no part of the land or property of the complaining owner is physically taken for or in making the proposed public improvement, and the damages claimed to result are therefore consequential, only, this provision of the constitution [relating to eminent domain] does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power.” It was further said that the damages referred to in the constitution are direct and physical, resulting from a taking of a portion of the land, and when no portion of the land is taken the damages suffered are consequential, and condemnation proceedings are not required to be instituted to ascertain the same; that it is sufficient to answer the constitutional requirement that a remedy is provided for the recovery of such damages by an action at law.

The principle announced in the cases cited would seem to control the question presented by this record. The land north of Tilden street alleged to have been damaged was not contiguous to that portion of the lot taken by the railroad company, as it was separated by a street, the fee of which was in the city of Chicago, and no part of that ground was taken. The damages suffered to the property north of Tilden street were not direct, resulting from a taking of a part of that land, but were consequential, and the railway company was not required to include that property in its petition for condemnation; nor could appellants, by cross-petition, compel the adjustment of damages to property no part of which had been taken, and which was not contiguous to the property taken. If by the construction and operation of the railroad on the lot south of Tilden street the property of appellants lying north of that street will be specially damaged, and the damages sustained by appellants are not common to the public, they have a complete remedy, in an action at law, to recover all damages sustained ; but where proceedings are instituted, under the Eminent Domain act, to condemn one lot or tract of land, the owner cannot bring into that proceeding another tract of land not contiguous and not connected with the land condemned, no portion of which has been taken, and recover such consequential damages as he may have sustained.

But it is said, the two tracts of land were purchased to be used for one purpose, as one tract of land. Whatever may have been the intention or purpose in purchasing the two tracts of land can make no difference. The two tracts of land must be considered as they existed when the proceeding was instituted. At that time they were separated by a public street. They were in no manner connected, and never could be connected without the consent of the city, which may never be obtained. They were not used for any common purpose as one tract of land. Two tracts of land might be so connected and used as to constitute but one tract, and m such a case, in a proceeding to condemn a part, it would be proper to consider the damages to the whole. But this record presents no such case.

No fault is found with the judgment for the land taken and damaged south of Tilden street, and as no error is perceived in the ruling of the court in the exclusion of evidence as to the tract of land north of Tilden street, the judgment will be affirmed.

Judgment affirme±