Lake E. & W. Ry. Co. v. Purcell

Mr. Justice Glenn delivered the opinion of the Court. It is conceded on behalf of appellant, that the building of the stone arch at right angles with the track, the digging of the new ditch and changing the watercourse, and filling in the trestle work and making the embankment, were improvements not inconsistent with good railroading, and were of great value to the appellant, and permanent in their character. The damages for which a recovery is sought in the second count of appellee’s declaration, are those accruing by the diversion of the natural watercourse of the creek and causing the land to be washed away, and by causing his premises to be frequently overflowed, and the grass and vegetables growing thereon to be destroyed, and by the overflow of the creek, causing deposits of large quantities of offal, sewer filth and other noxious and vile-smelling substances, upon his premises. The damages that may be recovered in this case are of a kindred character to those which may be recovered in an action under the eminent domain act, where there are damages accruing on account of the construction and operation of a railroad, to premises not taken. The fact that the premises are overflowed, that the soil is washed away, that there are cast upon the premises by such overflow, sewer filth, offal and other noxious substances are all proper matters of proof to show how the market value of the premises are affected by the improvement. The rule adopted by the court below as to the measure of damages, was the difference between the market value of the premises before the improvement was made, and after it was constructed and in operation. This rule is sustained by an unbroken line of authority. Evidence was admitted upon the trial by the respective parties, with reference to the market value of appellee’s premises, both before and after the making the improvement, without objection. An objection to this testimony can not be now urged, for the first time, in this court. With the permission of the court, and by agreement of the parties, in charge of an officer, during the progress of the trial, the jury made a personal view of the premises. It must be regarded as settled in this State, whether the court in this character of case, by agreement of the parties, will allow the jury to make a personal view of the premises, is a matter resting in the sound discretion of the court. Pike v. City of Chicago, 155 Ill. 656. What the jury learned from their own personal observations of the locus in quo, we can not know. The premises on view may be regarded, as it is termed in the books, as real evidence, which is of the most satisfactory character. It is evident this evidence should be considered by the ‘jury with the other evidence. To what extent they were influenced by such examination in their finding, it is impossible to tell. The result of the personal examination may have been such as to have fully justified the damages assessed, even if it were clear the preponderance of the evidence, as preserved in the record, was against so large an amount. Chicago & I. R. R. Co. v. Hopkins, 90 Ill. 316; Springer v. City of Chicago, 135 Ill. 552; Maywood Co. v. Village of Maywood, 140 Ill. 216; Vane v. City of Evanston, 150 Ill. 616; Chicago, B. & Q. R. R. Co. v. City of Naperville, 166 Ill. 87; City of Springfield v. Dalby, 139 Ill. 34; Pittsburgh, Ft. W. & C. Ry. Co. v. Lyons, 159 Ill. 576; Peoria & F. Ry. Co. v. Barnum, 107 Ill. 160. If the appellant desired to control the effect the view might have on the jury, in connection with the other evidence introduced, that might have been done by an appropriate instruction. Having failed to ask an instruction in this regard, he is now in no position to complain. Springer v. City of Chicago, 135 Ill. 552. This action is brought by appellee for a deterioration in the value of his real estate occasioned by a nuisance of a permanent character, and all damages for the past and future injury to his property may be recovered in this action, and one recovery in such case is a bar to all future actions for the same cause. Kankakee & S. R. R. Co. v. Horan, 131 Ill. 288; Chicago & A. R. R. Co. v. Maher, 91 Ill. 312; Chicago & E. I. R. R. Co. v. Loeb, 118 Ill. 203; Chicago & E. I. R. R. Co. v. McAuley, 121 Ill. 160; Doane v. Lake St. El. R. R. Co., 165 Ill. 523. The jury assessed appellee’s damages at $300, which finding is fully sustained by the facts and circumstances in proof and the law as applicable to the evidence. We therefore hold there was no error in the giving the instructions asked on behalf of appellee. There was no error in the modification or refusal of the instructions asked on behalf of the appellant. All that was applicable to the case, contained in appellant’s refused instructions, was fully covered by those given. We are of opinion that the judgment of the Circuit Court should be affirmed.