England v. State of Illinois

Opinion filed June 1, 1935.

WILKINS & BRECHEN, for claimants.

OTTO KERNER, Attorney General; JOHN KASSERMAN, Assistant Attorney General, for respondent.

PROPERTY DAMAGE-construction of public improvement causing-what constitutes. Where private property is not taken for public use but it is claimed that same is damaged by reason of construction of public improvement, it is not essential to right of recovery that there should be proof of a direct physical injury to the corpus or subject of the property, but it is sufficient under the present Constitution of the State of Illinois, if it be proven that there is a direct physical obstruction or injury to the right of user, or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally.

SAME-same-measure of. Where private property is not taken for public use, but is damaged by reason of the construction of a public improvement, the proper measure of damages is the difference between the fair cash [*687] market value of the property unaffected by the improvement and its fair cash market value as affected by it.

SAME-same-interference with natural drainage and with access to property-proper elements of. Where construction of public improvement interferes with natural drainage of property not taken for public use and with access to same, such interference is a proper element of damages where value of such property is depreciated as a result thereof.

SAME-same-obstruction in street interfering with access to private property-what constitutes. An obstruction or interference with a public street, affecting access to property, need not necessarily be in front of or contiguous to the property claimed to be affected thereby, in order to authorize a recovery. It is sufficient if it is such an obstruction or interference as produces a diminution in the value of the property, as distinguished from mere personal inconveniences to the owner.

SAME-same-dust blowing from roadway constructed and fumes from passing automobiles thereon-not proper elements of. No recovery can be had by owner of property, not taken for public use, abutting on public highway, for damages claimed to have been sustained to such property, by reason of the construction of such highway, resulting in dust blowing from same and fumes from automobiles passing thereon, as such damages are not special damages with respect to his property, different from and in excess of that sustained by the public generally, but are of the same kind and character as those sustained by the public generally.

SAME-same-burden of proof. Where damages are claimed to property, not taken for public use, alleged to have been caused by construction of public improvement, the burden of proof is upon the property owner to prove the damages claimed.

Per Curiam: All of the above claims, as well as certain other claims now pending in this court, arise by reason of the construction by the respondent of the approach to the Cedar Street bridge in the city of East Peoria, all of which cases are known as East Peoria bridge cases.

All of the claimants herein are represented by the same counsel, and inasmuch as all of the cases grow out of the same transaction and involve the same questions, it has been agreed by counsel for the respective parties, that the cases be consolidated for the purpose of this hearing.

The facts as to local conditions at and during the time involved in these cases, as well as the facts which apply generally to all of such cases, have been fully set forth in the consolidated cases of George Treharne and Rosie Treharne vs. State of Illinois, No. 1934, and Russell Youngman and Laura M. Youngman vs. State of Illinois, No. 1935, to which reference is made therefor. [*188]

The following facts with reference to drainage facilities prior to and subsequent to the construction of the improvement in question have special reference to the cases other than the Treharne and Youngman cases:

Richland Place Addition prior to the construction of the improvement, was level, flat land with but little natural drainage. The drainage facilities consisted entirely of open ditches, there being no drain tiles whatsoever.

The improvement as originally contemplated provided for no surface drainage except by means of two 18-inch culverts, one beneath the fill on Clark Street and one beneath the fill on Sanford Street. However, after the completion of the improvement, and after the filing of some of the claims herein, a system of tile drains was installed by the State at a cost of approximately $6,000.00, in order to more adequately take care of the surface water. Such system consisted of approximately 3,730 feet of vitrified tile, with joints sealed with oakem grout laid as follows: a 10-inch tile along the south line of S. B. I. Route 121, commencing at Washington Street and extending to the intersection thereof with Monson Street; then a 12-inch tile from the last named point to the north and south alley between Clark and Monson Streets where it emptied into a large catch basin. There was also a stretch of 10-inch tile coming from the west entering into such catch basin. From such catch basin an 18-inch tile was extended south, to the east and west alley north of Maple Street; thence along said alley to the east line of Sanford Street, thence south on Sanford Street to connect with the drainage district ditch. There were numerous catch basins installed along the line of the fill to take care of the surface water which might flow north toward the fill or south from the side of the embankment.

There is a sharp conflict in the evidence as to the natural fall of the land and as to drainage conditions both before and after the construction of the improvement in question. The witnesses for claimants testified that prior to the construction of S. B. I. Route 121, the natural drainage was toward the north to Roosevelt Street, then westerly along the south side of Roosevelt Street to the drainage district ditch. Witnesses for the respondent testified that the natural drainage in a general way was to the west and southwest; that the high point in the addition was a line running east and west about [*689] eighty feet south of the south line of the alley which parallels S. B. I. Route 121; that this line formed a sort of watershed and that the lots north of said line drained naturally toward Roosevelt Street and those south of such line drained to the south and west.

The witnesses for the State maintain that the surface drainage is much better now than it was at any time prior to the construction of the improvement; that the sewer system in question is properly constructed; that there is ample fall for the same; that it is maintained by the State and is under the supervision of local highway officers; that the inlets are kept free from debris; and that all surface water properly drains off within a short time after a rain.

The witnesses for the claimants, however, state that the drainage system is improperly constructed, that it does not properly carry off the water, that the inlets or openings thereto are a substantial distance above the level of the ground and therefore do not afford proper drainage for the surface water; also that the drainage system is not properly maintained; that the openings become clogged with weeds and dirt, and that as a result thereof water stands upon claimants' property for a considerable time after a heavy rain. Claimants whose houses have basements state that after a heavy rainfall their basements remain wet and damp for a considerable length of time, whereas such conditions never existed prior to the construction of the improvement in question.

Witnesses for the respondent contend that if there is any failure of the surface water to properly drain off, it results from the failure of the property owners to properly connect their open ditches with the sewer system installed by the State, and from the failure to keep such open ditches free from obstruction.

The facts which apply particularly to the several cases under consideration herein, to-wit, the facts as to the location of the several properties, and the character of the improvements thereon, if any, are as follows, to-wit: No. 1957.

ALBERT J. MOORE AND BELLE MOORE.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 682. -44 [*690] Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 582 is located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately ninety-five (95) feet south of said S. B. I. Route No. 121, and eighty (80) feet north of Maple Street;- and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127 1/2) feet. The east or front line of the lot is six hundred (600) feet east of the Sanford Street fill.

This lot is improved by a six-room frame bungalow with two porches. There is a concrete block foundation, and a basement under the entire house; also an extra room for bath but bath fixtures have not been installed. The building is equipped for electricity but not for gas. There is no furnace, no sewer connection, no cesspool, and no plumbing fixtures. There is an outside toilet. The exterior side walls are of wood, and the roof is of asbestos shingles. The floors are of hardwood and the interior walls are of plasterboard construction.

The south end of the fill on the Monson Street approach to S. B. I. Route 121 is a short distance north of the north line of claimant's lot. The surface of the lot is level with the adjoining street, and there is no direct interference with ingress or egress over Monson Street as the result of the construction of the improvement in question.

No. 1958.

ALBERT J. MOORE AND BELLE MOORE.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 590. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 590 is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately fifteen (15) feet south of said S. B. I. Route 121, and one hundred sixty (160) feet north of Maple Street. [*691]

The lot has a frontage of forty (40) feet on Globe Street and a depth of one hundred twenty-seven and one-half (127½) feet. It is bounded on the north by the alley which, is just south of and parallel with S. B. I. Route 121 at that point. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a two-story five-room frame dwelling with a bath and enclosed porch. There is a concrete block foundation and a basement under the entire house. The building is equipped for electricity and gas, has a furnace, hot water heater, and bath and plumbing fixtures.

There is a cesspool, but no sewer connections.

The exterior side walls are of siding, and the roof is of wood shingles. The floors and interior trim are of pine and the walls of plaster. There is a two-car garage at the rear of the home.

The Monson Street fill which constitutes the approach to S. B. I. Route 121 commences at or just south of the south line of claimant's lot and increases to a height of three (3) feet three (3) inches at the north end of the lot and thereby constitutes a material and substantial interference with ingress and egress over Monson Street.

No. 1959.

ALBERT J. MOORE AND BELLE MOORE.

Claimants, Albert J. Moore and Belle Moore, filed their claim herein as owners in joint tenancy of Lot No. 592. Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 592 is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately ninety-five (95) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street;-and has a frontage on Globe Street of forty (40) feet and a depth of one hundred twenty-seven and one-half (127½) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The lot is improved by a one-story frame four-room dwelling, with concrete block foundation, and has a basement [*692] under the kitchen. The building is equipped for electricity but not for gas, and has a cesspool but no sewer connections.

There is no furnace, no bath, and no plumbing fixtures.

The exterior side walls are of siding and the roof is of rubberoid construction. The floors and trim are of pine and the interior walls are of plaster. There is a small one-car garage and a shed near the rear of the lot. The building is in poor condition and in need of repairs.

The north line of this lot is approximately forty (40) feet south of the south end of the Globe Street fill which constitutes the approach of S. B. I. Route 121. The surface of the lot is level with the adjoining street, and there is no interference with ingress or egress over said Globe Street on account of the construction of the improvement in question.

No. 1960.

ALBERT J. MOORE AND BELLE MOORE.

Claimants, Albert J. Moore and Belle Moore, filed their claims herein as owners in joint tenancy of Lot No. 594.

Since the filing of such claim Albert J. Moore died, and Belle Moore thereby became the sole owner of said lot. Upon her motion it has heretofore been ordered that the cause proceed in her name as sole claimant.

Said Lot No. 594 is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately one hundred seventy-five (175) feet south of said S. B. I. Route 121, and immediately adjoining the north line of Maple Street. This lot lies at the northwest corner of the intersection of Globe and Maple Streets and has a frontage of forty (40) feet on Globe Street and a depth of one hundred twenty-seven and one-half (127½) feet on Maple Street. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a five-room frame cottage, in good condition, with concrete block foundation, and has no basement. The building is equipped for electricity and gas, has a bathroom, city water supply, and some plumbing fixtures. There is a cesspool, but no sewer connections, and no furnace.

The exterior side walls are of siding, and the roof is constructed of asbestos shingles. The floors and interior trim [*693] are of pine, and the interior walls are of plasterboard, papered. There is a two-car garage at the rear of the house.

The north line of the lot is approximately one hundred twenty (120) feet south of the south end of the Globe Street approach to S. B. I. Route 121. The surface of the lot is level with the adjoining streets and there is no interference with ingress or egress over either of said streets on account of the construction of the improvement in question.

No. 1961.

MIKE PELALLIS AND ADELE PELALLIS.

Claimants are the owners of Lot No. 583 which is located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately one hundred thirtyfive (135) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127½) feet. The east or front line of the lot is six hundred (600) feet east of the Sanford Street fill.

The property is improved by a six-room bungalow with concrete block foundation and basement. The building is in good condition, is equipped for electricity and gas, is heated by hot water furnace (oil burner), has hot water heater, bathroom and fair plumbing fixtures. There is a cesspool but no sewer connections.

The exterior side walls are of siding, painted, and the roof is of asbestos shingle construction. The floors and interior trim are of pine, and the interior walls are of plasterboard.

The north end of this lot is approximately fifty (50) feet south of the south end of the Monson Street fill which constitutes the approach to S. B. I. Route 121. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over Monson Street as the result of the construction of the improvement in question.

No. 1962.

GEORGE W. PEMBLE AND HANNAH PEMBLE.

Claimants are the owners of Lot No. 593 which is located on the west side of Globe Street between S. B. I. Route 121 [*694] and Maple Street, being approximately one hundred thirtyfive (135) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and having a frontage of forty (40) feet on Globe Street and a depth of one hundred twentyseven and one-half (127½) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a one-story five-room modern frame dwelling with concrete block foundation and a basement under the entire house. The building is equipped for electricity and gas, is supplied with city water, has a bathroom and kitchenette, with the usual plumbing fixtures.

There is a cesspool, but no sewer connections, and no furnace.

The exterior side walls are of asbestos shingles, painted, and the roof is of the same construction. The floors and interior trim are of pine and the interior walls are of plaster. There is a four-car tile garage near the rear of the lot.

The north line of this lot is approximately eighty (80) feet south of the south end of the aforementioned Globe Street fill. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over said Globe Street as the result of the construction of the improvement in question.

No. 1963.

JESS M. HERNANDEZ AND ELSIE HERNANDEZ.

Claimants are the owners of Lot No. 577 which is a vacant lot located on the east side of Clark Street between S. B. I. Route 121, and Maple Street, being approximately one hundred twenty-five (125) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street; and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127½) feet. The east or front line of the lot is three hundred thirty (330) feet east of the Sanford Street fill.

The south end of the Clark Street fill which constitutes the approach to S. B. I. Route 121 is approximately forty (40) feet north of the north line of this lot. The surface of the lot is level with the adjoining street and there is no material interference with ingress or egress over said Clark Street as the result of the construction of the improvement in question. [*695]

No. 1964.

WILLIAM ENGLAND AND KATHERINE ENGLAND.

Claimants are the owners of Lot No. 591 which is located on the west side of Globe Street between S. B. I. Route 121 and Maple Street, being approximately fifty-five (55) feet south of said S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; and has a frontage of forty (40) feet on Globe Street, and a depth of one hundred twentyseven and one-half (127½) feet. The east or front line of the lot is nine hundred thirty (930) feet east of the Sanford Street fill.

The property is improved by a three-room frame dwelling with two porches, and a large pantry. There is a concrete block foundation and a basement under the entire house.

The building is heated by furnace, but has no bath or sewer connections and no plumbing fixtures. There is an outside toilet but no cesspool. The exterior side walls are of threeinch siding, painted, and the roof is of rubberoid construction.

The floors and interior trim are of pine and the interior walls are of plasterboard.

The south end of the fill on Globe Street, which constitutes the approach to S. B. I. Route 121, is approximately on a line with the north line of this lot. The surface of the lot is level with the adjoining street and there is no material interference with ingress or egress over said Globe Street as the result of the construction of the improvement in question.

No. 1974.

WILLIAM M. EASTON AND NORMAN W. GEBHARDT.

Claimants are the owners of Lot No. 573 which is situated on the west side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately one hundred eightyfive (185) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and has a frontage of forty (40) feet on Clark Street, and a depth of one hundred twenty-seven and one-half (127½) feet. The east or front line of the lot is two hundred seventy (270) feet east of the Sanford Street fill.

The property is improved by a one-story three-room dwelling house with concrete block foundation, and no base[*696]ment. The building is of very cheap construction, and is in a poor state of repair. The exterior side walls are of stained shingles and the roof is of rubberoid construction. The floors and interior trim are of pine and the interior walls are of plasterboard. The building is equipped for electricity but not for gas; has no sewer connections, no cesspool, no bathroom, no furnace, and no plumbing fixtures. There is a small shed, and an outside toilet.

The north line of this lot is approximately eighty (80) feet south of the south end of the aforementioned Clark Street fill. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over said Clark Street as the result of the construction of the improvement in question.

Claimants contend that their several properties have been depreciated in value as the result of the construction of the improvement in question, and base their claims upon the following elements of damage, to-wit: 1. Dust blowing from the roadway. 2. Fumes from, and noise of passing automobiles. 3. Interference with the circulation of air over said properties. 4. Interference with their right of access. 5. Interference with the natural drainage, and failure on the part of the respondent to provide proper drainage.

A brief review of the authorities on the legal questions involved in claimants' contentions is necessary for a proper determination of the issues in all of these cases.

Where private property is not taken, but is damaged for public use, the property owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such case is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it.

Dept. of Public Works vs. McBride, 338 Ill. 347.

Dept. of Public Works vs. Caldwell, 301 Ill. 242.

Brand vs. Union Elevated Co., 258 Ill. 133.

Benefits to land not taken may be set off against damages to land not taken. Damages must be direct and proximate, and not such as are merely speculative and remotely contingent. [*697]

Dept. of Public Works vs. McBride, 338 Ill. 347.

Depreciation in market value will not sustain a claim for damages to land not taken, unless it is from a cause which the law regards as a basis for damages.

Illinois Power & Light Corporation vs. Talbott, 321 Ill. 538.

Rockford Electric Co. vs. Browman, 339 Ill. 212.

What elements of damage, then, may be taken into consideration in determining whether there has been a depreciation in the value of claimants' property for which compensation must be made?

The Constitution of 1848 provided that private property should not be taken for public use without just compensation.

No provision was made for property damaged, but not taken, and numerous cases arose in which a decided hardship was worked upon certain property owners whose property was seriously damaged but not taken, and who were therefore denied any compensation therefor. To remedy this situation, a change was made in the Constitution of 1870, and Section 13 of Article Two of such Constitution now provides that "Private property shall not be taken or damaged for public use without just compensation." The difference, in effect, between the two constitutional provisions is clearly set forth in the case of Rigney vs. City of Chicago, 102 Ill. 64 in which the Supreme Court, on page 78, said: "Under the Constitution of 1848 it was essential to a right of recovery, * * * that there should be a direct physical injury to the corpus or subject of the property, such as an overflowing it, casting sparks or cinders upon it, and the like; but under the present Constitution it is sufficient if there is a direct physical obstruction or injury to the right of user, or enjoyment, 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."

In the case of Otis Elevator Co. vs. City of Chicago, 263 Ill. 419, the court said, "The doctrine of the Rigney case has not been modified, limited, extended or departed from in any degree";-and such doctrine has been strictly adhered to and followed in many cases since the Otis Elevator case.

In the case of Illinois Power and Light Corporation vs.

Talbott, 321 Ill. 538, the Supreme Court quoted with approval from the case of Otis Elevator Co. vs. City of Chicago, 263 Ill. 419, and also said: [*698] "It was properly or by necessary implication held in the Loeh case, the Aldis case and the Otis Elevator Co. case, that the measure of damages and the rules of evidence are the same in an action at law as in a condemnation proceeding, and it is repeatedly said that it is clear that the provision in the Constitution of 1870 was not intended to reach every possible injury that might be occasioned by a public improvement, and that to warrant a recovery it must appear that there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property and which gives it an additional value, and by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. The physical disturbance need not be a physical disturbance or direct injury of the tangible object of property rights, but must be a disturbance of a right which the owner enjoys in connection with his ownership of the tangible object."

The foregoing statement of the law has been approved in numerous cases since decided. Illinois Power Co. vs. Illand, 324 Ill. 411; Illinois Power and Light Corporation vs.

Barnett, 338 Ill. 499; Rockford Electric Co. vs. Browman, 339 Ill. 212.

In the City of Winchester vs. Ring, 312 Ill. 544, in considering a similar question, the court said:

"The provision of the Constitution that private property shall not be damaged for public use was not intended to reach every possible injury that may be occasioned by a public improvement. If an obstruction or improvement does not practically affect the enjoyment or use of property not taken, and thereby impair its value, no action will lie. To sustain an action for such damages the damage must be to property and not a mere personal inconvenience or injury, such as damage to trade or business. If the injury amounts only to an inconvenience or discomfort to the occupants of the property but does not affect the value of the property, it is not within the provision of the Constitution even though a personal action would lie therefor. The injury complained of must also be actual, susceptible of proof and capable of being approximately measured, and must not be speculative, remote, prospective or contingent. To warrant a recovery the damage must be different in kind from that sustained by the people of the whole neighborhood.

If it differs only in degree from that suffered in common by the people of the neighborhood the injury is not within the provision of the Constitution.

Illinois Central Railroad Co. vs. Trustees of Schools, 212 Ill. 406; Hohmann vs. City of Chicago, 140 Id. 226."

That an abutting property owner may not be deprived without compensation, of the right to have light and air from the public highway, unobstructed by any encroachment on the street has been held in numerous cases. Field, et al. vs.

Barling, 149 Ill. 556; Barnard vs. City of Chicago, 270 Ill. 27; Gerrsley vs. Globe Wernecke Co., 340 Ill. 270. [*46]

MORTON SALT COMPANY, A CORPORATION v. STATE OF 705 ILLINOIS.