Spur Distributing Co., Inc. v. State of Illinois

SPUR DISTRIBUTING CO., IKC.,A CORPORATION, Claimant, 'us. STATE O F ILLINOIS, Respondent.

O p in i on on rehearing file.6 November 51, 1943.

POPE & DRIEMEYER, for claimant.

GEORGE F. BARRETT, Attorney General; ROBERT V. OSTROM, Assistant Attorney General, for respondent.

D AMAGE TO PRIVATE PRoPmm-not taken for public use- caused b v construction of pablic inzprovement-when specnlalive and not proven by competent evidence award not ji~stified. Where after recognizing the continued operation of claimant's lease subsequent to completion of construction of public improvement, it ,appears that the items of claimant's 1OSS are speculative and that the alleged damages to its leasehold interest, in property alleged to have bel% damaged as the result of the construction of a public improvement have not been proven by competent evidence no award can be made.

SAME-same-same-?)~eaSure of. Where private property is not taken for public use, but it is alleged that same has been damaged by reason of the construction of a public improvement, the proper measure of such damage, if any, is the difference between tkie fair, cash market value of the property, unaffected by the improvement and its fair, [*95] 95 1 cash market value, as affected by it, and proof of such difference must be made to justify award for damages.

Sam+-same-same-loss of or inconvenience to business- not damage to property- not proper element of damages. Inconvenience to, or loss of business suffered by owners or lessees of abutting, or other private property, not taken for public use, during the progress of work in the construction of a public improvement, do not constitute damage to property, within the meaning of the Constitution, but constitute a burden incidentally imposed upon private property adjacent to public work, and no cause of action therefor lies against the State.

ECKERT, J. ,

I

I

On May 15, 1937, the respondent began the con- I struction of two underpasses on that part of St. Clair Avenue in East St. Louis, Illinois, which forms a part of

I

U. S. Highway No. 66. The construction was completed on December 15,1938. The claimant had previously built i and operated a gasoline filling station on property on 1 the south side of St. Clair Avenue leased from the Wig- I gins Ferry Company. Because of the construction of the 1 underpasses, the station was closed from June 27, 1937, II

I

to December 18, 1938. When it reopened, its business I was materially less than it had been prior to the con- ~ struction of the subway.

Claim for damages allegedly suffered by reason of 1 the construction of .the two underpasses, in the amount I of $19,915.26, was filed by claimant on April 23, 1940. I The claim was denied, the court holding that no award I could be made to claimant because no Leasehold existed I during a time when a compensable loss could have been suffered, and because the alleged damages were speculative. (Nauyoks, et al, vs. State, 11 C. C. R. 542.) On ~

I

petition, a rehearing was granted.

In the order granting the rehearing, this court found that confusion existed in the record as to the period, if any, during which the leasehold rights of claimant continued after the construction of the subways in question. c . I [*96] The court stated, that although it was not in accord with claimant’s theory as to the measure of damages, the petition for rehearing should be granted because the court had failed to recognize the continued operation of claimant’s lease following the completion of the subway constru‘ction.

After a consideration of )the record upon rehearing, and after recognizing the continued operation of claimant’s lease subsequent to completion of the subway construction, the court is still of the opinion that the items of claimant’s loss are speculative and that the alleged damages to its leasehold ,interest have not been proved by competent evidence.

An award is therefore denied.