City of Chicago v. McDonough

Mr. Justice Sheldon delivered the opinion of the Court: This was an action in case, brought by the plaintiffs, against the city of Chicago, to recover for certain damages alleged to have been caused to the plaintiffs’ property by the:erection of the Harrison street viaduct by the city. Canal street, in the city of Chicago, runs north and south, near the south branch of the river, and west of it. Harrison street runs east and west, crossing the south branch and Canal street at right angles. The property in question lies seventy-five feet north of Harrison street, on the east side of Canal street. It is a lot fifty feet front on Canal street, by a depth-of one hundred feet, to a twenty-foot alley, with a four-story brick building on the lot. Harrison street, about eight hundred feet east of where it intersects Canal street, crosses the south branch of the river, by a bridge. West of such bridge, and covering a breadth of some six hundred feet, were a great number of railway tracks, running, substantially, parallel with Canal street. In 1881 the city constructed a viaduct along Harrison street, over the railway tracks mentioned, the structure extending from the river bridge to Canal street, carrying the roadway of Harrison street some fifteen feet above its former level, and over such tracks. The declaration alleges, that on account of the construction of the viaduct on Harrison street, with its approaches on Canal street, access to the property was obstructed by reason of the raising of the grade on Canal street, and by closing the public alley in the rear, leading into Harrison street, and that the defendant carried away and converted to its own use a stone sidewalk in front of the property. The premises in question were under a lease to Eastman & Wilkins, from October 7, 1878, for a term of five years, at a rental of $1500 per annum. There was a verdict in the Superior Court, for $10,000, upon which judgment was entered. The judgment was affirmed by the Appellate Court for the First District, and the defendant appealed to this court. The point is made by appellant, that the plaintiffs have in this judgment recovered damages for injuries done to the possession; that the plaintiffs declared as absolute owners of the premises, introduced their evidence, asked and had given their instruction, and recovered upon the theory of damage to the entire estate. Respecting the declaration, we understand the rule to be, that in order to recover for an injury done to the reversion, the declaration must either state an injury of such a nature as to be necessarily injurious to the reversion, or must explicitly allege that it was injurious to the reversion. Tinsman v. Railway Co. 1 Dutch. (N. J.) 255. The declaration in the present case sets up an injury of such a permanent nature as to be necessarily injurious to the reversion, which we conceive to be sufficient in this respect. As to evidence, the counsel for the plaintiffs, while their first witness was on the stand, stated in open court, to the court and jury, that Eastman & Wilkins had a lease of these premises, which ran until October, 1883, and that no claim was made for -injury to the present possession. The testimony to which exception is taken, is that of plaintiffs’ witnesses that the property, taken as a whole, was damaged by the erection of the viaduct, and stating the amount of the damage. This was competent evidence to show damage to the reversion. Defendant made only a general objection to it “as including too much, ” and on account of the “lease matter.” Had it desired there should be discrimination made between damage to the reversion and that to the possession, and that the evidence should be strictly limited to the former, it should have specifically so asked, instead of making the general objection it did. There was full opportunity, on cross-examination, to have the testimony made restrictive in respect of the two species of damage; and the general announcement which had been made, that there was no claim for injury to the present possession, should, of itself, control the application of the evidence to damage to the reversion. The opinions of witnesses of the damage to the reversion distinctively from that to the possession, had they been given, might have been some relief to the jury in their work; but the lease was in evidence before them, and evidence of the amount of damage to the rental value, which, with the evidence of the damage to the property by the depreciation of its tiiarket value, would furnish data to the jury from which they might calculate the damage to the reversion separate from that to the possession. We perceive no error in the admission of testimony. Exception is taken to the instruction given for the plaintiffs, that if the jury believed, from the evidence, “that said premises were permanently damaged and inj ured, and the market value thereof lessened by reason of the acts of the city,” they should find for the plaintiffs. This instruction is rather broad, and might more properly, by its terms, have been confined to the injury to the reversion; but it should be taken in view of the general disclaimer which had been made at the beginning of the trial, of any recovery for injury to the possession. Besides, there was all the needed qualification of the instruction in the one given for the defendant, “that the plaintiffs can not recover any damages in respect of said leasehold interest for the period of said term from October 7, 1878, until October 7, 1883; * * * and the question for the jury to determine is, whether any, and if so, what, damage has been occasioned by the construction of the Harrison street viaduct and its approaches, to the premises in question, subject to the lease.” This latter instruction appears to cure the defect complained of in the instruction for plaintiffs, and the instructions are not contradictory. The one explains the other. There are some minor objections as to the admission of testimony, which we do not perceive to be of material force. It may be that the jury, in fact, awarded to plaintiffs all the damages done to the premises, both in possession and reversion, by the improvement in question; but we do not think, as claimed by appellant, that the jury were allowed to do so under the evidence and under plaintiffs’ instruction. From what took place on the trial, and from defendant’s instruction, it may properly be said that the presentation of the case to the jury was, that the recovery of damages was limited to the injury to the reversion. The judgment of the Appellate Court will be affirmed. Judgment affirmed.