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road, upon the value of respondent's other property not so taken, described in his cross-petition, is consequential, only; and in considering what amount, if anything, should be awarded to respondent for such consequential effects, the court will balance the elements of injury and the elements of benefit which will accrue thereto from constructing and operating such railroad according to the petition, stipulation and plans in evidence, and will award to respondent, for this element of his compensation, only the amount of net loss, if any, so shown by the evidence to be suffered."

Where land is actually taken it must be paid for, and no question of benefits can be considered. Here a portion of the alley was actually taken, and if it was of such size and shape as to be used for or devoted to business purposes, and by reason thereof had a market value, that must control. On the other hand, if it is to be regarded of such a size or shape as not to be available for business purposes, then its relative value as a part of the entire lot, and other considerations, may be looked to in determining its actual value, as held in Green v. City of Chicago, 97 Ill. 370. This proposition would have authorized the benefits to be considered against the value of the property taken, as it states, “the effect of taking away such portion, and of the construction and operation of petitioner's railroad, upon the value of respondent's other property not so taken is consequential,” and concludes with the statement that for such element of compensation only the net loss could be awarded. It was not error to refuse this proposition.

The following proposition was modified and held as modified:

"The court holds, as a matter of law, that the market value of the property actually taken by the petitioner for the purpose 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, rights in property and uses of property of which the respondent will be actually deprived, or the use, benefit or enjoyment of which will be directly and physically interfered with. The effect of taking away such portion, and of the construction and operation of petitioner's railroad upon the value of respondent's other property not so taken, described in his cross-petition, is consequential, only; and in considering what amount, if anything, should be awarded for such consequential effects, the court will balance the elements of injury and the elements of benefit which will accrue thereto from constructing and operating such a railroad according to the petition, stipulations and plans in evidence, and will award to respondent for this element of his compensation only the amount of net loss, if any, so shown by the evidence to be suffered."

The proposition as originally presented was modified by the court by the insertion of the words in italics, and the modification is relied upon as error.

The first part of this proposition declares that the market value of the property actually taken by the petitioner for the purpose specified in its petition cannot be reduced by benefits arising from the construction or operation of petitioner's railroad. So far there is no objection to the proposition, and had it gone no further no objection could have been urged against it. But the proposition proceeded, "but this rule is confined to property of which the respondent will be actually deprived." It is not entirely clear what was intended by counsel in the use of the words “property of which the respondent will be actually deprived.” If the object was to limit the term "property" to the number of square feet of land in the alley actually occupied by the columns upon which the track of the elevated railroad rested, and to exclude the space above the surface of the ground on which the railroad was constructed, which seems to have been the case,-then the proposition was inaccurate and misleading, and the court properly qualified the proposition so that it read, "this rule is confined to property, rights in property and uses of property of which the respondent will be actually deprived, or the use, benefit or enjoyment of which will be directly and physically interfered with.” If respondent's use and enjoyment of any part of the alley were directly and physically interfered with in the construction and operation of the road in the alley, there would be, to the extent of such physical interference, a taking of property within the spirit of the law. Whether the physical interference was on the surface of the alley or above the surface, obstructing the light and air, in either event there would be a taking of property. Respondent's title to the alley was not confined to the surface of the ground, but it extended to the space above. His title to the space above the surface of the ground was as valid as his title to the surface of the ground, and if he was entitled to recover for the taking of one, upon principle he was entitled to recover for the taking of the other.

Petitioner requested the court to hold the following:

"The court holds that the amount of compensation which respondent is entitled to recover by reason of his ownership of the following described premises," (describing the premises set out in the cross-petition,) "is measured by the depreciation or diminution in the value of said premises by reason of the construction and operation of petitioner's railroad in the manner shown by the petition, plans and stipulations filed and offered in evidence in this case."

The court refused to hold the proposition as requested, but modified it by adding the following: "The above is a correct statement of the law if limited to the claim for compensation made in the cross-petition for damages to the property above and therein described, but incorrect if applied to the compensation to be awarded for the taking of the property described in the petition.”

The proposition as asked stated a correct proposition of law, and the court should have indorsed it “held.” But what was the modification? It amounted to no more than saying that if the proposition was understood according to its terms it was correct. The judge was uncertain as to its meaning, and said that if it applied to the taking of property described in the petition it was incorrect. In each clause of the modification a correct rule of law was stated. The modification was unnecessary. It did not, however, affect the finding, and could not have misled the judge who wrote it, and hence was harmless error.

The petitioner requested the court to hold the following proposition of law:

"The court holds that in determining the compensation which should be awarded to respondent on account of the interference with the light of his building situated north of and adjacent to the property described in the petition in this cause by the construction and operation of petitioner's railroad, the court should take into consideration the effect, as shown by the evidence, of such construction and operation of said railroad upon the whole of said building, and not simply upon that portion of said building below the level of said railroad or the cars used upon the same.”

The court refused to hold the proposition as requested, but modified the same as follows: “This is correct if limited to the direct and immediate effect of the construction and operation of petitioner's railroad upon the light of the building mentioned, but incorrect if applied to any supposed increase of light to said building which may result from any failure or inability to erect a tall building on the premises south of and adjoining the premises described in the petition, where there was no building at the time of the filing of the petition.”

The measure of damage to land not taken is the difference in value of the land before the proposed construction and what it will be afterward. The effects flowing from the proposed work upon the particular property must be taken into consideration in determining how the value of the land is affected, and if its value is not diminished the owner has sustained no damage. (Metropolitan West Side Elevated Railway Co. v. Stickney, 150 Ill. 362.) And this question is to be determined by considering the whole effect of the work on the property not taken. In this case it was sought to be shown by the evidence that by the construction of the road and its operation the space south of'appellee's building to the line where a building could be erected would be much greater than the width of the alley, and the appellee's building above the road would have more light and air by reason of such increased width between buildings. Damage to land not taken is not to be determined by any principle of set-off. It is to be determined only by a finding, from the evidence, as to whether its value has been diminished by reason of the proposed work. All elements may be taken into consideration by the witnesses in determining for themselves whether the property is diminished in value or not. There was evidence that the rental value of the building above the road would be affected by reason of moving trains, noise, smoke, etc., and by the loss of light and air, and there was also evidence to the contrary. This proposition singles out one of these elements and asks the court to consider that in determining the compensation to be awarded. The judge was not required to find specially, and should have refused the proposition, as the only question for him to determine was whether the value of the property was diminished or not from all causes, as shown by the evidence. In addition to this, the modification did not mislead the judge and did not affect the finding. The modification did not prejudice the appellant's rights, and as the proposition should not have been held the appellant cannot complain of its modification.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

CRAIG, WILKIN and CARTWRIGHT, JJ., dissenting.

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