Lake Shore & Michigan Southern Railway Co. v. City of Chicago , 151 Ill. 359 ( 1894 )

Mr. Justice Shope

delivered the opinion of the Court:

It is insisted with great earnestness, that the motion to dismiss, etc., should have been sustained, because the petition contained no allegation that the petitioner had been unable to agree with the owners of land sought to be condemned, upon the compensation and damages to be paid for the land taken and damaged. The contention being, that the provision for condemnation, under art. 9, of the Cities and Villages act, is in pari materia with the eminent domain statute, and that, therefore, section 2 of the latter act, making the inability to agree a jurisdictional fact (Reed v. O. & M. Ry. Co., 126 Ill. 48), applies to proceeding under the former statute. This question arose directly in C. & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141; and was determined adversely to the contention of appellant. It is chiefly important, that the rule be established, to the end that parties may conform to it in practice, and what was said in Village of Hyde Park v. Borden, 94 Ill. 35, apparently holding, that the acts were, in the respect indicated, to be construed together, is not to be regarded as authority. The motion, under the authority of the later case, to which we adhere, was properly overruled.

There was evidence offered under the cross-petition tending to show damages to the railway company, not only in the operation of the railway, but also to property not taken. The company was shown to own and be in use of a large switch yard, lying south of the proposed street, and that the “neck,” as it is called in the evidence, of the switch tracks, necessary in the operation of said yard, extended north across and beyond the street. For the purpose of showing that the opening of 60th street, as proposed, would damage the same and decrease its value, appellant called witnesses, and after laying the foundation therefor, by showing them experienced in railway operation, asked them the effect upon the switch yard of the opening of said street.

Objection thereto was interposed and sustained, and appellant excepted. The evidence introduced by appellant, and admitted, tended to show, that, in the use of such yards, the operation of appellant’s switch engines would be retarded and hindered; that it would require an increased expenditure of money daily to perform the same operations in handling and switching cars, making up trains, etc., now carried on, after the opening of the proposed street. The witnesses were asked, and approximated the average daily increased expenditure to the railway company by reason thereof. It is in effect conceded, that this last evidence was proper for the consideration of the jury, in determining damages to land not taken, if any such damages were shown. It was, under all the rulings, clearly competent evidence as tending to show damages to property not taken.. What it proved, if any thing, was for the jury.

Under this condition of the case, it was error for the court to instruct the jury, “that the measure of compensation in this case for the extension of 60th street, across the right-of-way of the railway companies, is the amount of decrease in the value of the use of the strip of land in question for railroad purposes, which will be caused by the use of said strip for the purposes of a street, such use for the purposes, of a street being subject to the use of the railroad companies for railroad purposes,” and refusing to instruct, at the instance of defendant, that the appellant company was “entitled to recover its just compensation, not merely for the strip to be so taken, for the purposes of said street, but, in addition, such farther sum, if any, as the evidence may show would justly compensate said company for the. damages to its other property.”

That the evidence offered and admitted tended to show depreciation in the value of appellant’s switch yards and. property not taken, seems too clear for argument. True, the court gave two instructions to the jury, at the instance of appellant, to the effect that, if the capacity of the appellant company to transact its business, as existing at the time .of filing the petition, as shown by the evidence, would be limited by reason of the opening of 60th street over its tracks, and the use thereof by the public, and that such limitation would result independently of police regulation, or delays rendered necessary by the common law duty of appellant, to operate and manage its engines and trains with due care and caution on approaching and passing over said street, appellant would be entitled to compensation for such limitation of capacity, and the jury should allow said company such sum as they may believe from the evidence would be just compensation therefor.

This instruction by no means cured the error in the first given on the part of the petitioner.- It might well be, as it is strenuously insisted by counsel for appellee in this case, that the jury would be unable to determine, from the evidence, what amount of damages would result from the abridgment of capacity. In the very nature of affairs, the diminution of capacity would depend upon the use made of the street by the public, which could not be accurately determined, and the amount of damages would, therefore, be largely conjectural. And, to meet this condition of case, appellee asked and the court gave an instruction telling the jury, “that the damage, if any, must be real and tangible, and not merely conjectural and speculative, and if the jury believe from the evidence that any damage is shown, but the evidence furnishes no basis for ascertaining the amount, a verdict for nominal damages is proper.” The jury, acting under this instruction, found nominal damages. Without pausing to determine the accuracy of this last instruction quoted, it must be apparent, that, had the issue made by the cross-petition, of damages to property not taken, been properly submitted, they might have approximately found a sum that would be compensation for such damages. There was no other instruction given that tended, in any way, to modify the force and effect of the first instruction quoted, and the effect of that was to withdraw from the jury the consideration of the question of damages to property not taken.

If the instructions for appellant, before referred to, could be considered as bearing upon the question of such damages, it would be in direct conflict with the instruction for appellee first quoted. And the jury being told by it, that the measure of compensation to be allowed was the amount of decrease in the value of the use of the 66 foot strip for railroad purposes, which will be caused by taking it for use as a street, they would naturally infer that the damages to be recovered by the railway company, by reason of the diminished capacity of the railroad to transact its business, would be confined to the use of the particular strip, and not to the railway or switch yards, etc. Appellant had the right to have the question of damages to its property not taken fairly submitted, and the court erred in withdrawing it from the jury.

Numerous other errors are assigned, which it is unnecessary to now consider. For the error indicated the judgment of the Circuit Court will be reversed, and the cause remanded for further proceedings. 1 =

T 7 7 Judgment reversed.

Mr. Justice Magruder : I do not concur in the reasoning of this opinion.