Kotz v. City of Chicago & Illinois Central R. R.

Mr. Justice Gary delivered the opinion op the Court. Appellant owns a lot at the southwest corner of the intersection of Sixtieth street with the right of way of the Illinois Central Railroad, in Chicago. Before the track of the railroad was raised, over it from his lot he could receive the wholesome east wind from Lake Michigan, and view the beauties of Jackson Park. The track has been raised twenty feet and filled to that height, and the street in front of his lot cut down four feet; all to the injury of his lot in value, and obstruction of access to it. Eor these misdeeds, committed jointly by them, he sued the city and the railroad, and they demurred. The court sustained the demurrer, and final judgment was entered for the appellees. Raising and filling the railroad track upon the railroad’s own ground, gives the appellant no right of action against anybody. C. & W. I. R. R. v. Cogswell, 44 Ill. App. 388. II the lot of the appellant is damaged by cutting down the street, we will assume, but not decide, that he is entitled to recover the amount of that damage from the city but not from the railroad any more than he would be to so recover from the laborers who shoveled there. The cutting down the street is not per se a wrong, but if the cause of injury to private property, though it be done for public use, the damage must be compensated by the public who use. The declaration therefore is against two, partly for what is no cause of action, against anybody, and partly for what can be a cause of action against but one of the defendants. In such case the defendants may join in demurrer. 1 Ch. Pl. 97, Ed. 1883, and note 5. The judgment is affirmed.