Barnard v. City of Chicago (270 Ill. 27, 1915)

Mr. Justice; Dunn

delivered the opinion of the court:

The appellants sued the appellee in an action on the case. The court sustained a demurrer to the declaration and rendered a judgment against the plaintiffs in bar of the action and for costs, from which they have appealed.

The first count of the declaration avers that the plaintiffs were the owners of a ninety-nine year leasehold estate in certain premises in the city of Chicago fronting on LaSalle street and improved with a five-story and basement brick and stone building occupied by plaintiffs and their sub-tenants for stores and offices; that on February n, 1907, the city council of the city of Chicago passed an ordinance authorizing the Chicago Railways Company, a street railway corporation, to construct, maintain and operate a system of street railways in the streets and public ways in the city of Chicago, and required it to reconstruct a tunnel under the Chicago river, at LaSalle street, according to the terms of the ordinance, to the approval of the commissioner of public works and under the supervision of the board of supervising engineers; that the Railways Company accepted the ordinance and in May, 1910, began the reconstruction of the tunnel, which was constructed in and beneath the surface of LaSalle street, for a passageway under the Chicago river for its street cars; that the Railways Company excavated in and under LaSalle street for the purpose of constructing its tunnel, opened up and obstructed said street, cut off access to the plaintiffs’ property, and caused the surface of the street adjacent to the plaintiffs’ property and the walls of the plaintiffs’ building to sink, crack and settle to such an extent that it became necessary for the plaintiffs to shore up and retain said building and support the same and re-build the foundations, floors and walls thereof, and caused plaintiffs’ tenants to leave and the building to stand, in part, vacant, whereby the rents were lost to the plaintiffs, and the plaintiffs were obliged to, and did, expend and disburse large sums of money to restore said building and prevent its destruction; that by the act of the defendant in passing the ordinance for the construction of the tunnel, and in causing the construction of the tunnel, the plaintiffs’ premises were damaged and the plaintiffs have suffered damage. The second count is identical with the first, except that it states that the plaintiffs’ premises were damaged by a great amount, and that no benefit accrued to the plaintiffs’ property, or any part thereof, by reason of or resulting from the construction of said tunnel or by the operation of the company’s railroad therein. The third count is like the other two, except that it charges that by reason of said acts the market value of the plaintiffs’ premises was reduced by $10,000.

The allegation as to the obstruction of the street and of the plaintiffs’ access to their building refers only to a temporary obstruction during the progress of the work, from which no damage is claimed to have arisen and the case is not based on this charge. The demurrer raises the question as to the liability of the city for damages to buildings abutting on a street caused by excavating the street for a public improvement and thereby removing the lateral support of the soil. The appellants concede that an action could not have been maintained for such damages under the constitution of 1848. (Nevins v. City of Peoria, 41 Ill. 502; City of Quincy v. Jones, 76 id. 231; Rigney v. City of Chicago, 102 id. 64.) They insist, however, that the right to recover such damages was conferred by the constitution of 1870, which provides, by section 13 of article 2, that private property shall not be taken or damaged for public use without just compensation. The corresponding provision of the constitution of 1848 was that private property should not be taken and applied to public use without just compensation, and under that constitution it was held necessary to a’ recovery of compensation that there should have been a direct physical invasion of the property. Consequential injuries to property accomplished without physical contact were not compensated. (Roberts v. City of Chicago, 26 Ill. 249; City of Chicago v. Rumsey, 87 id. 348.) To afford relief in such cases, as was said in Rigney v. City of Chicago, supra, the makers of the constitution of 1870 inserted the provision just referred to. This provision was intended to afford redress in cases of damages where there was no remedy under the constitution of 1848, and accordingly in the Rigney case the plaintiff was held entitled to damages for the construction'of a street improvement more than two hundred feet distant from his property,