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the above described premises, viz., lot 3 and the south 15 feet of lot 4, and lots 5, 6, 7 and 8, of said block 52. Said lots 3, 6 and 7 front upon Canal street, and the south 15 feet of lot 4 and lots 5 and 8 front upon Clinton street, the premises extending from Canal street to Clinton street, a distance of about 319} feet. These premises described in the cross-petition have a frontage upon Canal street of about 150 feet and a frontage upon Clinton street of about 115 feet. The cross-petition also claims a perpetual easement over the north 15 feet of lots 9 and 10, in block 52, being the premises described in the petition and sought to be acquired by the railroad company.
It appears from the record that on December 1, 1888, Warren Springer, being the owner of lots 9, 10, 11 and 12, in block 52, by deed of that date conveyed the lots to Horace A. Hurlbut. The premises were described in the deed as lot 9, except the north 7} feet thereof; lot 10, except the north 7 feet thereof, and the whole of lots 11 and 12, in block 52, school section addition to Chicago. The deed, after reciting that the conveyance was made subject to three trust deeds therein described, contains the following clause: “It is expressly covenanted and agreed by and between the parties hereto, that the north fifteen (15) feet, more or less, of said lots nine (9) and ten (10), now used as a private alley, shall forever remain, on and above the surface thereof, free and clear of all buildings and erections of all kinds, and shall be used as and for a private alley only for the use of the owners and occupants of the other portion of said lots nine (9), ten (10), eleven (11) and twelve (12), and of lots seven (7) and eight (8), in said block fifty-two (52), but that said party of the second part, his heirs and assigns, shall have the right to use forever said fifteen (15) foot strip of land beneath the surface thereof for any purpose or purposes he or they may see fit to use the same for: Provided, however, such use shall not materially interfere with the use of the surface of said fifteen (15) feet of land for a private ailey, as herein expressed: And provided further, that said party of the second part, bis heirs and assigns, shall not remove or injure any part of the foundations of the buildings now standing upon the said lots seven (7) and eight (8) that extend into and upon said fifteen (15) foot strip of land, or of the foundations of any buildings that may be erected on said lots seven (7) and eight (8) in place of those now standing thereon, the foundations of which may extend three (3) feet and no more into and upon said fifteen (15) foot strip of land and beneath the surface thereof."
After the execution of this deed Springer erected upon the premises north of and adjoining the 15-foot strip a large manufacturing building, the Canal street frontage being 145 feet on Canal street by 160 feet in depth, ten stories high; and two buildings on Clinton street, adjoining each other, one 60 by 160 feet and the other 50 by 135 feet, eight stories and basement in height. These buildings were erected for manufacturing purposes, and rented out to various parties engaged in that business, Springer furnishing power, heat and light. The whole south side of the building extending from Canal to Clinton street received light from this private alley. At the time of the conveyance of lots 9 to 12 inclusive there was a building on the lots fronting on Canal street about five 'stories and basement in height and two stories and basement on Clinton street, the building extending through from Clinton to Canal street. The north wall of this building was 14 feet south of the south wall of the Springer building, and the alley was used by the occupants of the two buildings as a private alley for some three years, when the building south of the alley was taken down and a tunnel constructed on a portion of the lots. The petitioner, the elevated railroad company, prior to the trial had procured the property on the south side of the alley. This property was 90 feet wide, and extended from Canal street to Clinton street. The petitioner proposed to erect its railroad on the premises owned by it on the south side of the alley. The foundations for the structure along the south line of the alley, some seven in number, projected one foot into the alley. The superstructure projected over the alley, at an elevation of some 14 feet above its surface, a distance of about 12 feet. The alley in question, as appears from the evidence, was 15 feet wide and 320 feet long, containing 4800 square feet.
The evidence as to the compensation which should be paid for land taken and as to the damage to land not taken was exceedingly conflicting. The witnesses estimated the value of the land occupied by the pillars at from $1800 to $2950, and the damage to the alley at from $27,000 to $210,000, and the total damage at from $27,000 to $367,000.
The cause was tried by the court without a jury, and the compensation and damage were assessed at $61,000, and petitioner excepted. The petitioner submitted certain propositions to be held as law, and the modification of some and refusal of others were excepted to.
Peti. tioner prosecutes this appeal, and assigns as error that the damages were excessive, and that the court erred in modifying and refusing propositions submitted by petitioner to be held as law.
E. J. HARKNESS, WILSON, MOORE & MCILVAINE, and W. W. GURLEY, for appellant.
WILLIAM J. AMMEN, W. N. GEMMILL, A. C. STORY, and H. CREA, for appellee.
Mr. CHIEF JUSTICE PHILLIPS delivered the opinion of the court:
The contention of appellant is that only one foot on the south side of the alley was actually taken, whilst the contention of appellee is that the projecting superstructure was, to the extent it so projected, an actual invasion of property rights and a taking in law and fact. This alley was 15 feet wide, and was all on the north side
of lots 9 and 10. By the deed from Springer to Hurlbut lots 9 and 10 were conveyed, except the north 74 feet. Under the covenant contained in the deed the grantor retained valuable rights in the alley. He retained the perpetual right to use it for the purpose of hauling such material to and from his building as he might see proper, and to travel over and upon it in any manner and for any purpose he might desire. He also retained the right to construct foundations beneath the surface of the alley to a distance not exceeding three feet. Under the covenant that no buildings or erections whatever should be placed upon the alley above the surface thereof, he retained a perpetual easement of light and air, to be used and enjoyed by him in the use of his buildings erected upon the line of the alley. His buildings were erected for manufacturing purposes, and light and air from this alley increased their value for that purpose. The actual title of the north 74 feet of the alley was in the appellee, and this title and his easement in the south 7 feet reserved in the deed were both property rights.
It is a maxim of the law, cujus est solum ejus est usque ad colum, and by taking one foot on which the pillars were placed, on the south side of the alley, the rights reserved in the deed were invaded, and by the projecting superstructure to the extent of about 12 feet all the land in which appellee's easement existed, and about 4} feet of that which he never conveyed, was occupied and taken. If that projecting superstructure did not constitute a taking of land, then, if this appellant had placed its pil. lars all on its own land south of the alley, it might have made the superstructure project 11 feet over the alley, and then, there being no taking of appellee's property, it would not have been necessary to condemn. The statement of that proposition is a refutation of itseif, and a discussion of why it is not sound is rendered unnecessary. The property taken was that occupied by the pillars and that over which the superstructure projected. The manner and character of the taking were shown by the plans and specifications. The right acquired by the appellant by the condemnation was to that extent.
The cross-petition alleged damage to property not taken. In the evidence under the original and crosspetition there is a direct conflict in the testimony introduced on the trial. The conflict exists not only in regard to the land taken, but in regard to the damages to the property not taken. Where there is such conflict in the evidence as in this case, the rule is settled that the verdict of a jury,-or the judgment of the trial court, where a jury has been dispensed with by agreement,-will not be disturbed unless clearly contrary to the weight of the evidence. Such is not the case here. Moreover, by agreement of the parties the court viewed the premises, and in that way obtained information in regard to the damages sustained, in addition to the evidence introduced on the trial, which cannot be shown by the record. There is therefore no ground for reversing the judgment for the alleged reason that the judgment is not warranted by the evidence, as we cannot say the amount allowed as damages and compensation was excessive, as shown by the evidence in this record.
The other question presented on this record is, whether there was error in refusing or modifying propositions presented by the appellant to be held as law. The first proposition refused was:
"The court holds, as a matter of law, that the market value of the property actually taken by the petitioner for the purposes specified in its petition cannot be reduced by benefits arising from the construction or operation of petitioner's railroad, but this rule is confined to property of which the respondent will be actually deprived. And the word 'property,' in this connection, does not refer to mere intangible rights, but to lands and improvements. The effect of taking away such portion, and of the construction and operation of petitioner's rail