Village of Winnetka v. Clifford

Mr. Justice Carter delivered the opinion of the court: Counsel for plaintiff in error insist that the injury or damage suffered by defendants in error by the closing of Maple street across the railroad right of way is no more than will be sustained by all other persons in the village of Winnetka who might have occasion to pass that way, and that although the closing of the street might cause them greater inconvenience, still that fact would not entitle them to a recovery. If the damages sustained by defendants in error are of the same kind as those sustained by the public at large, differing only in degree, or the damages sustained by the- defendants in error are of the same kind as those sustained by the general public, the only difference being in the excess of damages sustained by the defendants in error, then they could not recover. (City of Chicago v. Union Building Ass. 102 Ill. 379; City of East St. Louis v. O'Flynn, 119 id. 200; Parker v. Catholic Bishop, 146 id. 158; City of Chicago v. Burcky, 158 id. 103.) But whenever there is a direct physical obstruction or injury to the right of user or enjoyment of his property, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which by the common law would, in the absence of any constitutional or statutory provisions, give a right of action, he has a right to recover under our present constitution. (Rigney v. City of Chicago, 102 Ill. 64.) Whenever there is such an injury to the fowner’s right of access to and use and enjoyment of the property which is not common to the public generally, he has a right of action. (Aldrich v. Metropolitan West Side Elevated Railroad Co. 195 Ill. 456; Chicago, Peoria and St. Louis Railway Co. v. Leah, 152 id. 249; City of Chicago v. Lonergan, 196 id. 518; City of Chicago v. Jackson, id. 496.) The construction of a viaduct on a public street near its intersection with another street, thereby cutting off access to the first named street from the plaintiff’s house and lot over and along the street intersected except by means of a pair of stairs, whereby the plaintiff’s premises fronting on the latter street and near the obstruction were permanently damaged and depreciated in value by reason of being deprived of such access, was held in the Rigney case to be such special damage sustained by plaintiff, in excess of that sustained by the public generally, as would entitle him to recover.' The same rule was announced in the Burcky case, where a part of a public street, constituting a thoroughfare across railroad tracks, was vacated and a viaduct erected in another place, and the property was thereby left upon a blind court, although the property touched the vacated portion at only one corner. In the case at bar the closing of Maple street across the tracks turned it into a blind court directly in front of the property of defendants in error, whereby their property sustained an injury different and distinct from that suffered by the public. The refusal of the following instruction asked by the plaintiff in error is assigned for error: 1. “The jury are further instructed, that if they believe, from the evidence, that the plaintiffs have sustained special damages by reason of the vacation of Maple avenue across the tracks of the railway company, and if you further believe that the construction of the sub-way on Willow street was a direct pecuniary benefit to the plaintiffs’ property, then it is your duty to consider said benefits, and if you believe them equal to or in excess of said damages, then your verdict should be for the defendant.” This instruction directed the jury to consider the alleged pecuniary benefit received by the property from the construction of the Willow street sub-way, and to set it off against the damages alleged to have been received by the closing of Maple street across the railroad tracks. It ignored entirely the injury to the well, which was -specially averred in two of the counts of the declaration. While it was proper to direct the attention of the jury to the alleged benefits accruing by the construction of the sub-way, it was not proper to set them off only against a portion of the damages. The correct measure of damages was stated in an instruction given for plaintiff in error to be “the difference, as shown by the evidence, between the fair cash market value of the said property before the sub-way was constructed in Willow street and before Maple street was closed, and the fair cash market value of said property after said sub-way had been constructed in Willow street and after said Maple street had been closed, as a whole.” Finding no reversible error the judgment will be affirmed. Judgment affirmed.