Metropolitan West Side Elevated Railroad v. White

Mr. Justice Phillips delivered the opinion of the court: On the motion of appellant for leave to restore record and supply motion for a new trial, affidavits were filed by appellant’s counsel, and counter affidavits on the part of appellees. Leave was granted, and an order was entered to file the motion nunc pro tunc, and to strike from the files the affidavits filed by appellees. The latter then moved to strike from the files the motion for new trial, which was denied. The contention on the part of appellees is that no motion for new trial was in fact filed, and in argument counsel for appellant, before the trial court, relied on the fact that the damages were excessive, and hence waived all other questions. The rule is, where a party files his motion for a new trial and specifies the grounds of his motion, then he is' confined to those specified and set forth in the motion, but when the motion is general and no special grounds are stated the party filing the motion may insist on a new trial for any existing cause. The reason for the rule is, the other party can, of his motion, have a rule entered requiring specific reason to be stated in the motion. (See Ottawa, Oswego and Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.) If no written motion was entered and no motion for specific reasons, then there was no waiver of any ground for new trial entered of record by appellant. By filing the motion nunc pro tunc the appellant will be confined to the causes therein stated, and this could not prejudice the appellees. The cross-errors assigned by the appellees cannot, therefore, be sustained. On the trial appellees sought to show by witnesses who resided adjacent to other elevated roads and who had realty so adjacent, how elevated roads affected their property. Some of the witnesses answered, but this evidence was held improper by the trial judge and stricken out. In cases of this character witnesses who know the property and are competent to give opinions as to its value may testify as to how its value would be affected, and their previous experience, observation and knowledge of the manner an elevated road affects adjacent property as to its rental and market values may be shown, as that experience, observation and knowledge may show the testimony of the witnesses is entitled to greater effect and weight. The knowledge and observation of a witness may be proven. It is not proper, however, to show how other property was specifically injured. (Metropolitan Elevated Railroad Co. v. Dickinson, 161 Ill. 22.) To deny a witness the right to possess this knowledge before testifying would be to require him to be ignorant of the subject matter about which he testified. To deny the right of having that experience and observation shown to the jury would be .to take away from them the means of weighing the evidence. We do not find there was error in the admission of evidence. No error in the exclusion of evidence is pointed out in appellant’s argument. It is next urged there was error in giving and refusing instructions. For the purpose of determining the question of damage to property not taken, the court gave two instructions at the request of the owner of the leasehold. These instructions are numbered 31 and 38, and as given in the abstract, are as follows: 31. “The jury are instructed, as to the leasehold interest of Minnie A. White, that in estimating the damages, if any, they believe, from the evidence, will be suffered to her leasehold interest in that portion of the premises held by her under her lease and not taken by the petitioner, the jury should not take into consideration any general benefits which may be common to and shared in by the property generally in the vicinity of the proposed railroad, by affording conveniences for travel to and from the heart of the city, or otherwise, but in estimating the net result of damages or benefit, if any, to the part of the property held by her under her lease not taken by the petitioner, the jury should take into consideration only such special benefit, if any they believe is shown by the evidence, as would result to the property of Minnie A. White over and above such benefits, if any they believe, from the evidence, have been shown, as might accrue to the other property in the vicinity, generally.” 38. “The court instructs the jury, as to the leasehold interest of Minnie A. White, that if the jury should believe, from the evidence, that her leasehold interest in that portion of the premises not taken will be damaged by the construction and operation of the road, along the east side of said premises, and the casting of smoke and cinders upon the property, and danger of fire therefrom, and the escaping of steam, and noise of stopping and starting trains and the noise of passing trains, and the jarring of the buildings by such trains, if any, and that the construction and operation of the road will confer upon the property no benefits except such as are common to other property along the line of road and in the vicinity thereof, then and in that case the jury should so find, and they should assess the damages at such sum as the jury may believe, from the evidence, will accrue thereto independent of all such benefits which are common to other property, if any.” In Metropolitan West Side Elevated Railway Co. v. Stickney, 150 Ill. 362, a review of cases theretofore decided by this court was made, and it was said in that case (p. 382): “By a practically unbroken line of decisions in this State it is well settled that the test, under the present statute, as to whether land not taken is damaged, is the effect of the improvement upon the value of the land. Under the rule, land is said to be damaged only when there is a diminution in its value,—a depreciation in its price or worth,—and the compensation required to be made is the amount of depreciation or diminution in value occasioned by the construction and operation of the railroad or other improvement. Special benefits are such benefits flowing from the proposed public work as appreciably- enhance the value of the particular tract of land alleged to be benefited. As already said, the fact that other property in the vicinity is likewise increased in value from the same cause,—that is, also specially benefited by the improvement,—furnishes no excuse for excluding the consideration of special benefits to the particular property in determining whether it has been damaged or not, and if it has, the extent of the depreciation in value. (Wilson v. Board of Trustees, 133 Ill. 443; Bohm v. Metropolitan Elevated Railway Co. 129 N. Y. 576; Rigney v. City of Chicago, 102 Ill. 64.) On the one hand, the damages must be real and substantial; on the other, the benefits must be such as affect the market value or use of the land, and such as are capable of measurement and computation. Hence, all imaginary and merely speculative damages or benefits are excluded from consideration. The consideration of such benefits as tend specifically to enhance the value of the particular property is not setting off benefits against the damage to the property, but is the simple ascertainment of whether the land has been in fact depreciated in its price or worth,—that is, whether loss or damage has resulted to the owner,—-for if his property is of the same value after as before the improvement he has sustained no loss. If he has lost nothing,—if his property has not been depreciated in price or value,—it is not damaged, within the meaning of the constitution, and there can be no recovery. There can be no damage to property without pecuniary loss or injury which lessens its value.” We adhere to the rule as above stated. Damages can not exist if there is no loss or injury which lessens the value of the property not taken. By these two instructions, if the property would sell for a greater sum because of the improvement, still that could not be taken into consideration in determining the question of damage or benefits if other property would generally be likewise increased in value. As held in the Stickney case, above cited, “property may be specially benefited by an improvement and at the same time other property upon the same improvement be likewise specially benefited.” This principle is disregarded in these two instructions, and in this there was error. Instruction No. 23, as asked by petitioner, was: “General benefits which will be common to the public at large, and which will not affect the market value of the property in question, you should not consider, but any effect of the construction and operation of the railroad which you may believe, from the evidence, will tend to prevent its construction and operation from decreasing the market value of the remainder not taken of the property below what it would be if the railroad were not constructed, you may and should consider.” The court modified this instruction so that as given it read as follows: “General benefits which will be common to the public at large you should not consider, but any effect of the construction and operation of the railroad which you may believe, from the evidence, will tend to prevent its construction and operation from decreasing the market value of the remainder not taken of the property below what it would be if the railroad were not constructed, you may and should consider.” This modification also disregarded the principle announced in the Sticlcney case, and was erroneous. Objection is taken to the refusal of other instructions, but we will not extend this opinion by their discussion. It is urged that it was error to allow counsel for the owner of the leasehold, whilst arguing the cage, to hand to the jury tabulated statements of the amount-he urged as to the damages sustained, etc. We are not disposed to sustain this practice. Finally, it is strenuously urged the damage assessed by the jury was excessive. We refrain from a discussion of this question, as it will have to go before another jury. For the errors indicated, the judgment must be reversed and the cause remanded. Reversed and remanded.