Morton Salt Company v. State of Illinois

The claimant charges that on March 15, 1933, the State mailed to it, and generally published, a notice and request that it would, on April 6, 1933, at 2 o'clock P. M. at the office of the Division of Purchases and Supplies of the Department of Purchases and Construction, State House, Springfield, Illinois, receive proposals and bids for furnishing 50 tons of crushed rock salt, to be used at the Manteno State Hospital, Manteno, Illinois, and the specifications were also included in the advertisement.

Pursuant to that notice, claimant submitted a bid to furnish the salt at the rate of $6.36 a net ton, or the sum of $318.00 for the 50 tons. In response to that bid, the proper State officials mailed to claimant on April 27, 1933, a purchase order, known as No. D-58734, and being requisition No. Q.64, accepting said bid of claimant, and requested that the salt be shipped to the hospital aforesaid. On May 4, 1933, claimant shipped 50 tons of salt and it was duly received at the Manteno State Hospital on or about May 6, 1933. Some delay occurred, and invoice was not received in time to be paid from the then current appropriation.

No question arises about the facts, and claimant should be paid. We, therefore, make an award in the sum of $318.00 in favor of claimant.

-46 [*700] on the ground that in each of those cases there was a direct physical disturbance of a public right which the plaintiff enjoyed in connection with his property, which gave to it an additional value, and that he sustained special damages with respect to his property, different from and in excess of that sustained by the public generally;-and in discussing the question said:

"The damages sued for are of the same kind and character as those sustained by the public generally in the ownership of property, which property may have been lessened in value by the construction and operation of the road. Noise, the obstruction of light and of view, are necessary incidents to the construction and operation of such roads and if every property owner could recover in all such cases, the making of public improvements would become practically impossible. * * * Whatever damage plaintiff may have suffered in depreciation of the value of her property was of the same kind and character as that suffered by the public generally, and common to the owners of property in a large city where noise, confusion and the disturbance of quiet appear to be the necessary results of the activities of city life."

The last mentioned case has never in any way been modified or overruled.

The cases cited by claimants involving claims for damages on account of dust, smoke, noise, etc. are all cases in which either steam or electric railways were involved. Our attention has not been called to any case in which damages have been allowed to an adjoining or nearby property owner as the result of noise, dust, or fumes arising from automobile traffic on a public highway.

It has been repeatedly held by our Supreme Court that inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made, and therefore give no cause of action against a municipality therefor. Osgood vs. City of Chicago, 154 Ill. 194; Lefkovitz vs. City of Chicago, 238 Ill. 23; Chicago Flour Co. vs.

City of Chicago, 243 Ill. 218: Peck vs. Chicago Railways Co., 270 Ill. 35, 40.

The Supreme Court of this State has held in numerous cases that where a property owner's right of access to his [*701] property has been destroyed or interfered with, he is entitled to compensation for the damages sustained. Rigney vs. City of Chicago, 102 Ill. 64; Barnard vs. City of Chicago, 270 Ill. 27; Lydy vs. City of Chicago, 356 Ill. 230. As said in the case of C. Hacker Co. vs. City of Joliet, et al., 196 Ill. App. 415: "The difficulty lies in exactly defining this right of access; that it cannot be confined to the immediate access from street on which the premises abut is clear on the authority of Rigney vs. City of Chicago, 102 Ill. 64. * * * That it cannot be extended to interference with an abutting owner's access to his property by vacating or obstructing a street two or three blocks away is equally clear from the authority of City of Chicago vs. Union Bldg. Assn.,

102 Ill. 379."

In the Rigney case, the City of Chicago constructed a viaduct along Halsted Street and across Kinzie Street. Rigney was the owner of certain property located on Kinzie Street about 220 feet east of the viaduct and claimed that it cut off his communication with Halsted Street except by way of a stairs. It was held in that case that he was entitled to recover damages for an interference with his right of access.

In the case of City of Chicago vs. Union Bldg. Assn., 102 Ill. 379, it was held that the closing of LaSalle Street in Chicago by the Board of Trade Building three and one-half blocks from the owner's abutting property did not have a right of action because the owner was not specifically or particularly injured.

In Elliott on Roads and Street, 3d edition, Volume 2, Section 1181, the rule is set forth as follows: "Owners of land abutting upon neighboring streets or upon other parts of the same street, at least when beyond the next cross street, are not, however, entitled to damages notwithstanding the value of their lands may be lessened by its vacation or discontinuance."

In Lewis on Eminent Domain, 2d edition, Volume 1, Section 227, the author, after commenting on the Rigney case and other cases to the same effect, says (page 537): "These cases settle the doctrine that an obstruction or interference with a public street or way, need not necessarily be in front of or contiguous to the property claimed to be affected thereby, in order to authorize a recovery.

It is sufficient if it is such an obstruction or interference as produces a diminution in the value of the property, as distinguished from mere personal inconvenience to the owner." [*302]

In the case of Gibbons vs. Paducah & Ill. R. R. Co., 284 Ill. 559, the Supreme Court, on page 563, said: "Appellant's contention that to authorize a recovery in such a case as this the property, or some part of it, must abut on a street at the point vacated or obstructed is untenable. If the right to use the streets as a means of passing to and from his property is prevented or interfered with, it is a special damage to the property owner. It would seem absurd to say if obstructions had that effect still there could be no recovery unless the property abutted or bordered the street at the place of the obstruction. The mere right to pass to the property from a part of the street upon which the property abutted, and from the property to the street, when but a short distance from the property the street was so obstructed that no passageway was afforded beyond the obstruction, would be attended with the same character of injury as if the property abutted the obstruction."

While a city may change the grade of a street at its own pleasure, yet, when the grade is changed and sewers or drains are constructed in an imperfect manner, or where the inlets are negligently permitted to become obstructed, so that surface water cannot be carried off, and an adjoining property owner is damaged thereby, the city is liable for such damage.

Nevins vs. City of Peoria, 41 Ill. 502.

City of Elgin vs. Kimball, 90 Ill. 358.

Bouillon vs. City of Greenville, 233 Ill. App. 500.

In cases involving damage to land not taken, the burden of proof is upon the property owner to prove the damages claimed.

Illinois Power and Light Corp. vs. Barnett, 338 Ill. 499.

East St. Louis Light Co. vs. Cohen, 333 Ill. 218.

Illinois Power and Light Corp. vs. Talbott, 321 Ill. 538.

To set forth herein the application of the principles of law above set forth to the facts in each particular case, would extend this opinion to undue length. Suffice it to say that upon consideration of all of the evidence, so far as the same applies to the several claims, and the view of the several properties as taken by the court, and upon consideration of the law, as the same applies to the facts in each case, we have reached the following conclusions, to-wit: 1. As to the claims for damages on account of dust blowing from the roadway, fumes from passing automobiles, and interference with the circulation of air over the premises of [*703] the several claimants;-none of the claimants have shown any depreciation in the value of their respective properties, for which they are entitled to damages. 2. As to claims for damages on account of interference with the natural drainage, etc., Lots 577, 582, 590, 591 and 592 have each been depreciated in value to some extent, as the result of the construction of the improvement in question, the amount of depreciation in each case varying with the particular lot. Future damages can be obviated in each case by connecting the open ditches or other means of drainage of such lots with the sewer system installed by the respondent. 3. As to claims for damage on account of interference with the right of access, each and all of the lots involved in this proceeding have been depreciated in value to some extent as the result of the construction of the improvement in question, the amount of such depreciation in each case varying with the particular lot. 4. The total depreciation in value of each and all of the lots involved in this proceeding, as hereinbefore set forth, as the result of the construction of the improvement in question is as follows: Lot 582-Albert J. Moore and Belle Moore................ $450.00 Lot 590-Albert J. Moore and Belle Moore................ 900.00 Lot 592-Albert J. Moore and Belle Moore................ 350.00 Lot 594-Albert J. Moore and Belle Moore................ 275.00 Lot 583-Mike Pelallis and Adele Pelallis............... 450.00 Lot 593-George W. Pemble and Hannah Pemble............. 300.00 Lot 577-Jes M. Hernandez and Elsie Hernandez........... 50.00 Lot 591-William England and Katherine England.......... 400.00 Lot 573-William M. Easton and Norman W. Gebhardt....... 75.00 IT IS THEREFORE ORDERED that awards be and the same are hereby entered in favor of the several claimants herein as follows, to-wit: No. 1957-Belle Moore, owner of Lot 582. Four Hundred Fifty Dollars ($450.00).

No. 1958-Belle Moore, owner of Lot 590. Nine Hundred Dollars ($900.00).

No. 1959-Belle Moore, owner of Lot 592. Three Hundred Fifty Dollars ($350.00).

No. 1960-Belle Moore, owner of Lot 594. Two Hundred Seventy-five Dollars ($275.00).

No. 1961-Mike Pelallis and Adele Pelallis, owners of Lot 583. Four Hundred Fifty Dollars ($450.00).

No. 1962-George W. Pemble and Hannah Pemble, owners of Lot 593.

Three Hundred Dollars ($300.00). [*701]

No. 1963-Jess M. Hernandez and Elsie Hernandez, owners of Lot 577, Fifty Dollars ($50.00).

No. 1964-William England and Katherine England, owners of Lot 591, Four Hundred Dollars ($400.00).

No. 1974-William M. Easton and Norman W. Gebhardt, owners of Lot 573. Seventy-five Dollars ($75.00).