of its road, and they were performed in a reasonably skillful and proper manner, although of such a character as to injure and annoy plaintiff as the adjacent property owner, they would not constitute a nuisance and could not be abated as such; nevertheless, the defendant would be liable for the damages to the same extent and under the same rules as though the power house were a nuisance. Under the constitution of 1848, if there was no actual physical interference with property and the work was done without negligence, the charter of a railroad company was a protection against merely consequent injuries. Under that constitution the law afforded no remedy for such damages as plaintiff sued for. (Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203.) The present constitution requires compensation in all cases where, but for legislative authority to do the act, an action would lie at the common law. (Rigney v. City of Chicago, 102 Ill. 64.) The charter of the defendant does not, under the present constitution, take away from plaintiff the right to recover for the noise, jarring, smoke and disturbance resulting from the power house. If the power house was built and operated by authority of the charter it cannot be held a nuisance, but the liability of defendant in this suit is in no way affected by that circumstance. While, in such case, the plaintiff could not sue as for a nuisance, the right of compensation is guaranteed by the constitution and may be enforced in an action on the case. (Chicago, Milwaukee and St. Paul Railway Co. v. Darke, supra.) Plaintiff's suit was only for such damages as she could recover whether the erection of the power house was for a public or private use, and if the defendant has any preference as to whether its liability arose from a public or private use the plaintiff would not be affected.

Where an injury is temporary in character and of a transient nature, resulting from successive acts, the recovery can ordinarily be had only for damages to the

commencement of the suit, and every new act gives rise to a new cause of action. A continuance of injurious acts of a transient character constitutes a new nuisance. (Cooper v. Randall, 59 Ill. 317; Schlitz Brewing Co. v. Compton, 142 id. 511.) So, also, if a structure is erected by legislative authority and damages result from negligent or improper construction, the party injured is not bound to assume that the imperfect structure will be permanent and he may bring successive actions for resulting damages. The remedy for negligent or improper construction is to hold the party responsible for all damages resulting therefrom until the cause of damage is removed by a proper construction. (Ohio and Mississippi Railway Co. v. Wachter, 123 Ill. 440; Chicago, Burlington and Quincy Railroad Co. v. Schaffer, 124 id. 112.) Where the suit is not for negligent or improper construction or operation, and is for damages accruing from a construction of a permanent character, all damages, in law, accrue when the cause of the injury is created, and the recovery must be for the whole damage, of which depreciation in market value is the measure. (Chicago and Eastern Illinois Railroad Co. v. Loeb, supra; Chicago and Eastern Illinois Railroad Co. v. McAuley, 121 Ill. 160; Penn Mutual Life Ins. Co. v. Heiss, 141 id. 35; Hyde Park Light Co. v. Porter, 167 id. 276; 8 Am. & Eng. Ency. of Law,-2d ed.-684.) In this case, the damages, in contemplation of law, were sustained when the power house was established and its operation commenced. The evidence of permanent injury and damage was properly admitted.

Defendant asked the court to instruct the jury that if the plaintiff was damaged by the careless operation of the power house there could be no recovery for any damage arising therefrom after the commencement of the suit. The court refused to give the instruction. The question of careless or negligent operation was not in issue in the case, and was neither presented by the evidence nor the pleadings. Plaintiff was not asking for

any damages for careless operation, and the instruction was properly refused as not pertinent to any issue.

The court propounded to the jury, at the instance of the defendant, the following question for a special finding: "Had the plaintiff been damaged, at the time of the commencement of this suit, by the operation of the de-. fendant's power house, and if so, in what respect and in what amount?" The question should not have been submitted. It was a mere attempt to have the jury state the means by which they arrived at their verdict, by stating the elements of damages included and the amount thereof. It is claimed that the answer of the jury showed that they added to the depreciation in value of the property the discomfort and annoyance of plaintiff, which were necessarily included in the depreciation in value; but as the question was not a proper one the defendant can have no advantage from the error of the court in giving it. The amount stated in the answer corresponds with the general verdict, and as to the elements, it may be fairly understood, not as doubling the damages, but as giving the causes of it.

The court also modified other special interrogatories asked by defendant and gave them to the jury. None of them related to any ultimate fact, and all were designed to have the jury state whether the damages arose through defective construction or careless operation of the power house. Those questions were not in issue in any way, and there was neither claim nor evidence on that subject. They should have been refused, and the modifications did no harm.

The judgment of the Appellate Court is affirmed.
Judgment affirmed.

JOSEPH KOHLHOF

v.

THE CITY OF CHICAGO.

Opinion filed October 24, 1901.

1. MUNICIPAL CORPORATIONS-duty of city with respect to sidewalks. A city may reserve portions of a street for sidewalks and portions for use of vehicles, but is only required to maintain the respective portions of the street in reasonably safe condition for the purposes to which they are respectively devoted.

2. SAME―the use of a sidewalk for moving goods is not an ordinary use. The reservation of a portion of a street for sidewalk does not deprive parties of the right to move goods from buildings abutting thereon to the edge of the walk; but the moving of goods is not an ordinary use of a sidewalk, to accommodate which the city is charged with the duty of constructing and maintaining the walk.

3. SAME-when Appellate Court's findings of fact preclude a recovery. In an action against a city for injuries received by the breaking of a sidewalk while plaintiff was moving a heavy iron safe across it, findings by the Appellate Court, in its judgment of reversal, that the sidewalk was reasonably safe for use in an ordinary manner and that the plaintiff was injured from want of ordinary care on his part, preclude a recovery.

City of Chicago v. Kohlhof, 64 Ill. App. 349, affirmed.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. PHILIP STEIN, Judge, presiding.

FRANCIS J. WOOLLEY, for plaintiff in error.

ANDREW J. RYAN, City Attorney, (JAMES J. KELLY, of counsel,) for defendant in error.

Mr. JUSTICE BOGGS delivered the opinion of the court: The judgment of the Appellate Court for the First District reversing and not remanding a judgment in the sum of $3000 entered in the superior court of Cook county in favor of the plaintiff in error, in an action on the case

brought by the plaintiff in error against the city of Chicago to recover damages for personal injuries received by an alleged defective sidewalk, contained the following findings of fact:

"And this court finds that the said appellee was injured, as he alleges in the declaration, upon the sidewalk named and described in the declaration, and at the time he therein states. And the court further finds that the breaking of the sidewalk and the injury to appellee were not, nor was either of them, caused by any ordinary use of the said sidewalk, but was the result of its use in an extraordinary and unusual manner, namely, by the moving thereover, by the plaintiff, of an iron safe weighing 1400 pounds. And the court finds that the moving of the safe in question across the sidewalk was not such a use as sidewalks are ordinarily and reasonably intended or used for. And the court finds that the said sidewalk was reasonably safe for use in an ordinary manner; and so the court finds that the said appellant, the city of Chicago, was not guilty of negligence in manner or form as charged in the plaintiff's declaration, and that the plaintiff was injured by reason of a want of ordinary care upon his part, wherefore this cause is not remanded."

This writ of error brings before us the question whether the principles of law applicable to the facts so recited authorize and warrant the judgment entered by the Appellate Court.

A sidewalk is that part of a street which the municipal authorities have prepared for the use of pedestrians. The city council of the city of Chicago has ample power to designate portions of the streets of the city to be used by horsemen and vehicles, and to reserve other portions of the streets for the use of pedestrians and where horsemen and vehicles may not go, and to prepare such portions of the streets for such uses, respectively. (City and Village act, clauses 7, 9, 14 and 20 of sec. 1, art. 5; City of Bloomington v. Bay, 42 Ill. 503; Elliott on Roads