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could only reach it by crossing the right of way at some of the street crossings and driving there over West avenue. This improvement could be of no benefit whatever to the west half of the right of way. While it is proper to tax the whole right of way and not divide it for the purpose of assessment where either side abuts a street which it is proposed to improve, the property cannot be taxed in excess of the benefits it will receive, and it is apparent no part of the right of way except that east of the embankment could possibly be benefited by the proposed improvement.

The increase in freight traffic and the general business of appellant cannot be considered in assessing benefits to its right of way. Cache River Drainage District v. Chicago and Eastern Illinois Railroad Co. 255 Ill. 398; City of Kankakee v. Illinois Central Railroad Co. 263 id. 589.

Appellant is restricted by grant to the use of its right of way for railroad purposes, only. Where property so sought to be taxed is restricted to a particular use and can not be legally applied to any other use, and is at the time of the assessment for a local improvement devoted to such use, the true measure of benefits which the improvement will confer is the increased value for the restricted use. (City of Lincoln v. Chicago and Alton Railroad Co. 262 Ill. 11.) Appellant could not legally erect factories, dwelling houses and like structures upon its right of way, and thus subject its real estate to the same uses as private individuals might devote real estate owned by them.

Motions were made at the conclusion of the testimony of each of appellee's witnesses to exclude from the jury the opinion expressed by the witness as to the amount of benefits, which were based, in part, upon grounds which were not legitimate. In each instance the motion was denied. In this action the court erred, because, while opinions are admissible in this class of cases, they must result from a consideration of lawful elements. City of Kankakee v. Illinois Central Railroad Co. 263 Ill. 589.

Appellant's division superintendent testified that appellant was now engaged in constructing two additional tracks from Chicago to Otto, a station five miles south of Kankakee, where there is a line of road diverging from appellant's main line; that it now has four tracks constructed as far south as Matteson; that two or three miles of the additional tracks have been built near Kankakee and that some tracks have been built within the city, all of which are constructed to become a part of the new four-track system; that the completion of this system will be the first construction work done by appellant; that the present abutments of the bridge across the Kankakee river, immediately south of River street, are constructed to carry an addition to the bridge to accommodate two additional tracks on the east of the present double-tracks; that when constructed over the strip in question the two additional tracks will be placed on the east side of the right of way, and, together with the necessary embankment to carry them, will occupy almost, if not quite, all of the right of way east, of the present embankment between Hickory and River streets. He further testified that the completion of this work was simply a question of time and money; that it might be completed during the next year, but would be done within less than three years. We held in Illinois Central Railroad Co. v. City of Chicago, 169 Ill. 329, where it was sought to condemn a right of way for a street across a railroad right of way, that the value of the railroad right of way for the erection of structures other than tracks could not be allowed as damages in a condemnation proceeding to extend a public street across the right of way, unless the land has actually been put to such special uses or there is an actual immediate intention on the part of the railroad company to devote it to such special uses. The same rule applies in ascertaining the benefits to a railroad right of way by the construction of a local improvement. Here it was shown that appellant has an actual immediate intention to occupy the whole of

the east half of its right of way between Hickory and River streets with its main tracks, and, in fact, has already completed a considerable portion of the line of tracks of which this will constitute a part. This will preclude the use of this land for coal sheds or such other structures as appellant might properly erect and lease to other parties. In arriving at the benefits, if any, to be derived by the construction of the proposed improvement, appellant's right of way should be regarded as devoted to the use to which it is proposed immediately to put it.

For the reasons indicated the judgment of the county court is reversed and the cause remanded.

Reversed and remanded.

THE MERCHANTS LOAN AND TRUST COMPANY, Defendant in Error, vs. THE CITY OF CHICAGO, Plaintiff in Error.

Opinion filed June 16, 1914.

I. MUNICIPAL CORPORATIONS—an ordinance construed as to the provision for interest on water extension certificates. Where an ordinance provides that money advanced by property owners for laying water mains shall be refunded to them whenever, upon a proper survey, it is shown that a revenue of ten cents per lineal foot is being derived therefrom, "provided that if the moneys so advanced are not paid back within two years, that interest at the rate of five per cent per annum shall be allowed after the expiration of two years until paid," interest begins to run two years after the money is advanced, as shown by the water extension certificates, without regard to the amount of revenue being derived.

2. SAME―the city of Chicago had power to provide for water extension certificates and for interest thereon. It was within the power of the city of Chicago to provide by ordinance that property owners should advance the cost of water mains, and that the money so advanced should be refunded from the water tax fund when the revenue from the frontage water rates reached ten cents per lineal foot, and that if the money was not refunded within two years it should bear interest from the expiration of such two years until paid.

3. SAME-the power to make local improvements is not limited to special assessments. It is within the power of a city, under the Local Improvement act, to make local improvements either by special assessment, special taxation or general taxation, and section 9 of article 9 of the constitution also gives that right.

4. SAME a city may provide for interest by contract lawfully made. While there is no implied liability upon the part of a city to pay interest except where money is wrongfully obtained and illegally withheld, yet the city may incur liability for interest by contracts which it may lawfully make.

5. SAME the act of 1873 contemplates that a city may borrow money to construct water-works. The act of 1873, for the construction and maintaining of water-works, contemplates that a city. may borrow money for the purpose of constructing water-works and provide for re-paying the same by general taxation or from the funds collected from water-taxes, rents or rates.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on writ of error to the Circuit Court of Cook county; the Hon. DEAN FRANKLIN, Judge, presiding.

WILLIAM H. SEXTON, Corporation Counsel, and NICHOLAS MICHELS, (A. L. GETTYS, of counsel,) for plaintiff in error.

MUSGRAVE, OPPENHEIM & LEE, for defendant in error.

Mr. JUSTICE CARTER delivered the opinion of the court:

This was a suit brought by the Merchants Loan and Trust Company, as executor of the estate of Lambert Tree, deceased, in the circuit court of Cook county, against the city of Chicago, to recover $2761.73, and interest thereon. at five per cent from July 25, 1897. On the trial, jury being waived, judgment was entered against the city for $4908.96. The case was taken to the Appellate Court by writ of error, where the judgment was affirmed, and has been brought here by petition for certiorari.

The judgment was based on the following instrument

in writing:

"CITY OF CHICAGO,

Department of Public Works,

Bureau of Engineering.

July 25, 1895.

"It is hereby certified that Lambert Tree has advanced the sum of twenty-seven hundred and sixty-one and 73/100 dollars for the purpose of laying [certain described water pipe,] which amount will be refunded to him (without interest if so refunded within two years from the date hereof, but with interest, at the rate of five per cent per annum from and after the expiration of said two years, if not so refunded within said two years,) from any money belonging to the water tax fund in the city treasury not otherwise appropriated, whenever, upon a proper survey, it is shown that a revenue from frontage water rates of ten (10) cents per lineal front foot per annum is being derived from said pipe. "By order of the commissioner.

$2761.73

JAMES J. GRAHAM, Ass't Sec.
L. B. JACKSON, City Engineer."

In 1891 the city of Chicago passed an ordinance authorizing the commissioner of public works to extend water mains when the property owners advanced the cost of the same, and that said money so advanced should be re-paid from the surplus of the net income of the water rate. May 16, 1892, the city council passed the following ordinance:

"Whereas there is an urgent demand from every section of the city for street improvements; and whereas it will be impossible to proceed with any of the streets now under assessment until proper provision is made for the extension of water mains; and whereas this council has recently authorized the issuance of water certificates amounting to $1,000,000, the proceeds of which were to be used in extending and improving the water system; and whereas it is of the utmost importance that no part of the proceeds of said certificates be used except for the extension of water mains in localities where the actual number of residents will warrant the outlay from a business standpoint; and whereas in the past it has been the practice to pass ordinances for street improvements in uninhabited subdivisions, which

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