Citations
- 195 Ill. 398
Full opinion text
Mr. Justice Magruder
delivered the opinion of the court:
First—The first point, made by the appellant, is that its plea of the Statute of Limitations should have been sustained. While counsel on neither side state how the point thus made arises, yet we presume that it is based upon the refusal of the court to give to the jury the following instruction:
“The jury are instructed that, if you find from the evidence that this suit was not commenced within five years from the date of the construction and operation of the first track built by the defendant, the Calumet and Chicago Canal and Dock Company under its ordinance, then the plaintiff in this case, as a matter of law, cannot recover any damages alleged in the declaration in this case, and you should find the defendants not guilty.”
Under the ordinance, originally passed by the village of Hyde Park, appellant had the right to construct and maintain two railroad tracks with necessary side-tracks and branches, etc. One of these tracks it constructed in 1885 or 1888, or at some time prior to 1890, but it constructed the second track, east of the first and nearer to the premises in question, in 1896. This suit was begun on February 19, 1898, and it is brought to recover damages to appellee’s property for the construction of and operation of cars upon the east track alone. The east track having been constructed less than two years before the beginning of the suit, the court below committed no error in refusing to sustain the plea of the Statute of Limitations of five years.
The passage of the ordinance was not the beginning of the damage to the property of appellee. It was not apparent, when the ordinance was passed, that it would ever be acted upon, or that both of the tracks, allowed by the ordinance, would ever be built. No damage is claimed for any act or thing done upon the first track constructed before 1890. The damage done was the building of the second track immediately next, and in front of appellee’s premises in 1896, and the operation and switching of cars thereon. Until the second track was built, no damage was done. The contention of appellant seems to be, that all damage, ascribed to the building and operating of the road under the ordinance, must be intended to have arisen at the time when the railroad company entered upon the streets and laid the first track. Certainly, the appellee is entitled to recover for damage done to her property by reason of the laying of the second track in 1896. It cannot be claimed that damage resulted to her from the passage of the ordinance authorizing the laying of the tracks. The mere grant of authority to construct the road does not do the damage, but the damage is done by the construction and operation of the road. When the property of an abutting owner is damaged, his right under the constitution to compensation is not confined to cases of illegal trespass, but may be caused by acts which are perfectly legal. The operation of the road upon a single track may leave a large portion of the street to the use of the general public, and thereby do but little harm, but the adding of one or more additional tracks may both interfere with the use of the street by the public, and with the access of the abutting owner to his property. (Maltman v. Chicago, Milwaukee and St. Paul Railroad Co. 41 Ill. App. 229),
The evidence is conflicting upon the question, whether or not the premises were damaged by the construction and operation of the easterly track,' but there was evidence enough to justify the court in submitting the question to the jury. The evidence tends to show that, before the second or easterly track was laid, access to the store in appellee’s building was easy, but that afterwards it became impossible, parties desiring to approach the front