Wilsoít, P. J.
The principal question arising on the record, and the only one we propose to consider, relates to the rule of damages in an action on the case against a railroad company, for injuries resulting from the constructing and operating a railroad in the streets of an incorporated town or city by the permission of its municipal authorities ; in other words, whether the owner of lands abutting on such streets is entitled, in such action, to recover all the damages sustained by him by the location and operation of the road, including the loss by depreciation in the market value of his property caused thereby, or whether his right of recovery is limited to certain elements of damage peculiar to his property, and which are of a physical nature, such as the cutting off of access to his premises by making of embankments and digging ditches, the jarring of his buildings, casting smoke, ashes and cinders upon Ms dwelling-house, turning water onto the land, and other like injuries.
We have been furnished by the counsel for appellee with a brief], which, in extent of research, and the collation of decisions in other States as well as this, finds few equals in our hooks of reports, and is creditable alike to the learning and industry of the counsel by whom it was prepared. It is, however deemed by us unnecessary to review the numerous cases cited, and we shall do little more than to refer briefly to a very few decisions of our own Supreme Court, and a single one by this court, bearing on the question under consideration.
The town of Lake is an incorporated municipality, and as such, owner of the land in its streets. Having by ordinance, authorized the Chicago and Western Indiana Railroad Company, to construct and operate a railroad in Wallace street, the constructing and operating of such road was not unlawful. The railroad company acquired the right to build and operate the road in the street, without interference by the public or by individuals, subject however, to the liability to respond to the owners of land abutting on the streets for such injuries sustained by them in consequence of the construction and operation of the road, as are to be deemed legal elements of damage in an action on the case, like the present.
It would occupy too much space, if we had the time, to review in detail, the evidence contained in this voluminous record. From a careful perusal of the bill of exceptions, it sufficiently appears, first, that the market value of property abutting on Wallace street, including appellee’s, was materially depreciated by the location and operation of the railroad in the street; and secondly, that the larger portion of appellee’s recovery was based on a general depreciation in the value of his property in common with other property on the street, caused by the existence of the railroad there, rather than upon such physical or other injuries as were peculiar to appellee’s property. The record abounds in questions and answers, as to the comparative value of the property before the road was built and after it was bnilt —its value with the road, and its value without the road. These questions were broad enough in their scope to embrace .every element of damage, and it is manifest that many of the answers included estimates of damages common to the whole public, and not such damages merely as were peculiar to the property of appellee.
That the owner of property abutting on a public street in an incorporated town or city in which a railroad is located by the permission and consent of the municipality duly obtained, is not entitled, in an action on the case against the railroad company, to recover for every species of injury or loss he has suffered thereby, we do not understand to be an open question in this State. And accordingly, in Chi. & E. Ill. R. R. Co. v. Hall, 8 Brad well, 621, following the rule in relation to the measure of damages as declared by the Supreme Court, we said: “ The court, against the objection of appellant, permitted appellee to give evidence of the difference between the market value of the premises at the time appellant commenced operating, and that of the bringing the suit. The scope of these questions called upon the witness to give such difference from all causes; and the jury must so have understood it, because the depreciation from the direct physical injury had already been shown. Under the decisions of the Supreme Court in C. B. & Q. R. R. Co. v. McGinnis, and Chi. Mil. & St. P. R. R. Co. v. Hall, we are constrained to hold that this evidence was incompetent.”
In the McGinnis case (79 Ill. 269), the court said: “ It has long been the settled doctrine in this State, at least anterior to the adoption of the constitution of 1870, that where by the charter of a city its local authorities are vested with exclusive control over the streets, and those authorities grant permission to lay down railroad tracks along a street, the owner or occupants of property fronting on such street can not enjoin the laying of such tracks, nor be allowed any damage or compensation for such use of a street. * * * Eecognizing, as the court below did, the difference between the value of the property without the railroad, and with the railroad, would be to allow a recovery for all causes whatsoever, by reason of thé railroad, and so of the rental value in such respect. If there be any liability in respect of the dust, smoke and cinders, the inquiry should have been confined to the question of what material damage, if any, was done to the property by the throwing of dust, smoke and cinders upon it.” The court cites its previous ruling in Stone v. Fairbury, 68 Ill. 394, and say, that was the case of a railroad constructed since the adoption of the constitu tion of 1870; and they recognize such cases'as standing on the same footing, in respect to the rule of damages, as in the case of roads constructed anterior thereto. The case of Chi. Mil. and St. P. R. R. Co. v. Hall, 90 Ill. 42, is to the same effect.
It is insisted that the decision in the McGinnis case, is in conflict with the ruling Of the court in other cases. A careful examination of the cases will show that this is a misapprehension. Isolated expressions are found in some of the opinions^ which, standing alone and disconnected from the context, might seem to indicate a different rule from that laid down in the McGinnis case; but when taken in connection with all that is said, they will be found to be in harmony with the rule as enunciated in that and many like cases. A brief reference to one or two cases will suffice as an illustration of what we have just said:
In Chi. Mil. and St. P. R. R. Co. v. Hall, Mr. Justice Walker, in delivering the opinion of the court, says: “ This court has repeatedly held that damage to property not taken for public use, must be real and not speculative, and it must depreciate the price or its use, and the depreciation is determined by comparing its value btifore and after the structure is made, which prodtvces the injury.” Standing alone, this language would seem to imply that such comparison of values, based as it might be, at least in part, on the general depreciation of the market value of the property affected, constitutes the proper standard by which to measure the damage sustained. But in the paragraph next preceding, he says: “ The measure of damages is the loss sustained by the nuisance, the injury from the jarring of the building, the throwing of cinders, ashes and smoke upon appellee’s premises.
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Wilsoít, P. J.
The principal question arising on the record, and the only one we propose to consider, relates to the rule of damages in an action on the case against a railroad company, for injuries resulting from the constructing and operating a railroad in the streets of an incorporated town or city by the permission of its municipal authorities ; in other words, whether the owner of lands abutting on such streets is entitled, in such action, to recover all the damages sustained by him by the location and operation of the road, including the loss by depreciation in the market value of his property caused thereby, or whether his right of recovery is limited to certain elements of damage peculiar to his property, and which are of a physical nature, such as the cutting off of access to his premises by making of embankments and digging ditches, the jarring of his buildings, casting smoke, ashes and cinders upon Ms dwelling-house, turning water onto the land, and other like injuries.
We have been furnished by the counsel for appellee with a brief], which, in extent of research, and the collation of decisions in other States as well as this, finds few equals in our hooks of reports, and is creditable alike to the learning and industry of the counsel by whom it was prepared. It is, however deemed by us unnecessary to review the numerous cases cited, and we shall do little more than to refer briefly to a very few decisions of our own Supreme Court, and a single one by this court, bearing on the question under consideration.
The town of Lake is an incorporated municipality, and as such, owner of the land in its streets. Having by ordinance, authorized the Chicago and Western Indiana Railroad Company, to construct and operate a railroad in Wallace street, the constructing and operating of such road was not unlawful. The railroad company acquired the right to build and operate the road in the street, without interference by the public or by individuals, subject however, to the liability to respond to the owners of land abutting on the streets for such injuries sustained by them in consequence of the construction and operation of the road, as are to be deemed legal elements of damage in an action on the case, like the present.
It would occupy too much space, if we had the time, to review in detail, the evidence contained in this voluminous record. From a careful perusal of the bill of exceptions, it sufficiently appears, first, that the market value of property abutting on Wallace street, including appellee’s, was materially depreciated by the location and operation of the railroad in the street; and secondly, that the larger portion of appellee’s recovery was based on a general depreciation in the value of his property in common with other property on the street, caused by the existence of the railroad there, rather than upon such physical or other injuries as were peculiar to appellee’s property. The record abounds in questions and answers, as to the comparative value of the property before the road was built and after it was bnilt —its value with the road, and its value without the road. These questions were broad enough in their scope to embrace .every element of damage, and it is manifest that many of the answers included estimates of damages common to the whole public, and not such damages merely as were peculiar to the property of appellee.
That the owner of property abutting on a public street in an incorporated town or city in which a railroad is located by the permission and consent of the municipality duly obtained, is not entitled, in an action on the case against the railroad company, to recover for every species of injury or loss he has suffered thereby, we do not understand to be an open question in this State. And accordingly, in Chi. & E. Ill. R. R. Co. v. Hall, 8 Brad well, 621, following the rule in relation to the measure of damages as declared by the Supreme Court, we said: “ The court, against the objection of appellant, permitted appellee to give evidence of the difference between the market value of the premises at the time appellant commenced operating, and that of the bringing the suit. The scope of these questions called upon the witness to give such difference from all causes; and the jury must so have understood it, because the depreciation from the direct physical injury had already been shown. Under the decisions of the Supreme Court in C. B. & Q. R. R. Co. v. McGinnis, and Chi. Mil. & St. P. R. R. Co. v. Hall, we are constrained to hold that this evidence was incompetent.”
In the McGinnis case (79 Ill. 269), the court said: “ It has long been the settled doctrine in this State, at least anterior to the adoption of the constitution of 1870, that where by the charter of a city its local authorities are vested with exclusive control over the streets, and those authorities grant permission to lay down railroad tracks along a street, the owner or occupants of property fronting on such street can not enjoin the laying of such tracks, nor be allowed any damage or compensation for such use of a street. * * * Eecognizing, as the court below did, the difference between the value of the property without the railroad, and with the railroad, would be to allow a recovery for all causes whatsoever, by reason of thé railroad, and so of the rental value in such respect. If there be any liability in respect of the dust, smoke and cinders, the inquiry should have been confined to the question of what material damage, if any, was done to the property by the throwing of dust, smoke and cinders upon it.” The court cites its previous ruling in Stone v. Fairbury, 68 Ill. 394, and say, that was the case of a railroad constructed since the adoption of the constitu tion of 1870; and they recognize such cases'as standing on the same footing, in respect to the rule of damages, as in the case of roads constructed anterior thereto. The case of Chi. Mil. and St. P. R. R. Co. v. Hall, 90 Ill. 42, is to the same effect.
It is insisted that the decision in the McGinnis case, is in conflict with the ruling Of the court in other cases. A careful examination of the cases will show that this is a misapprehension. Isolated expressions are found in some of the opinions^ which, standing alone and disconnected from the context, might seem to indicate a different rule from that laid down in the McGinnis case; but when taken in connection with all that is said, they will be found to be in harmony with the rule as enunciated in that and many like cases. A brief reference to one or two cases will suffice as an illustration of what we have just said:
In Chi. Mil. and St. P. R. R. Co. v. Hall, Mr. Justice Walker, in delivering the opinion of the court, says: “ This court has repeatedly held that damage to property not taken for public use, must be real and not speculative, and it must depreciate the price or its use, and the depreciation is determined by comparing its value btifore and after the structure is made, which prodtvces the injury.” Standing alone, this language would seem to imply that such comparison of values, based as it might be, at least in part, on the general depreciation of the market value of the property affected, constitutes the proper standard by which to measure the damage sustained. But in the paragraph next preceding, he says: “ The measure of damages is the loss sustained by the nuisance, the injury from the jarring of the building, the throwing of cinders, ashes and smoke upon appellee’s premises. The depreciation from these causes may be considered, but not general depreciation in value from other causes; mere inconveniences in approaching or leaving the property, or the noise and confusion in the vicinity. The injury must be physical, and when it is such, we know of no better measure of damages than the depreciation of the property from that cause alone.
So in the more recent case of Rigney v. City of Chicago, 101 Ill., expressions may be found which, standing alone, might be regarded as enlarging the rule of damages laid down in the McGinnis case. But the court say in the opinion: “ In all cases to warrant a recovery, it must appear that there has been some direct plij^sical disturbance of a right, either public or private, which the plaintiff enjoys in connection with 'his property, and which gives to it an additional value; and that by reason of such" disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally.” It is unnecessary to multiply decisions of like import. We apprehend it will be found upon full examination that there is no conflict or want of harmony in the decisions of the Supreme Court on this subject.
The cases of St. L. V. & T. H. R R. Co. v. Haller, 82 Ill. 209, and Same v. Capps, 67 Ill. 607, were suits based on an ordinance, which by acceptance by the company became a contract to pay all damages which the abutters on the street had sustained by the construction and operation of the railroad, and the court places its decision on the fact of the contract. Other cases cited by appellee were condemnation proceedings^ where, under the provision in the constitution for “just compensation,” all damages sustained by the land owners might perhaps be properly allowable, as in the case of actions of trespass to real property; though even in condemnation proceedings, it was said in Rigney’s case the constitution “ was not intended to embrace every possible injury.”
The estimates of damages by many of appellee’s witnesses, based as they were upon a consideration of all the loss resulting to appellee by reason of the location of the road in Wallace street, including the general depreciation of the value of his property on account of the existence of the road in the street, were improper and necessarily misleading. The questions calling for such estimates were objected to, and the answers were moved to be striken out, which was refused by the court. Moreover, they went beyond their scope in the injuries complained of in the plaintiff’s declaration.
Whether the rule of damages adopted by our Supreme Court in this class of cases is just and reasonable, or otherwise, is not for us to say. It is sufficient that it is fixed by the court of last resort, and we have only to follow it.
The judgment of the court below must be reversed, and the cause remanded.
¡Reversed and remanded.