Mr. Justice Cartwright
delivered the opinion of the court:
Block 12 of the superior court partition of the west half of the north-west quarter of section 4, township 38, range 14, in Cook county, is in the city of Chicago, and is bounded on the north by Forty-first street, on the east by Emerald avenue, on the south by Root street and on the west by Halsted street. The block contains thirty-four lots, and in 1896 appellees were the owners of the entire block except five lots. The conveyance to them was of the whole block except lots 18,19 and 30, and they afterward sold lots 20 and 21. The west side of Halsted street was the private property of the Union Stock Yards and Transit Company, and Root street, Forty-first street and Fortieth street (which was the next one north) extended'east from Halsted street but did not cross that street. Fortieth street, one block north of this property, was occupied with seventeen railroad tracks of the Union Stock Yards and Transit Company. These tracks spread out in Fortieth street near the entrance to Halsted^street and the stock yards, and. occupied three hundred and fifty feet of Halsted street. Formerly, horse c-ars ran on Halsted street to Fortieth street and stopped. The passengers had to get off, cross the railroad tracks on foot and transfer to a car on the opposite side. In October, 1895, the city council ordered the street railway company to run its cars over the railroad tracks without causing passengers to transfer. By a conference between the Union Stock Yards and Transit Company, the City Railway Company and the appellant it was agreed that a viaduct should be built over the tracks, and the City Railway Company and the Union Stock Yards and Transit Company agreed to defray the expenses of the viaduct. The object of the viaduct was to carry the street traffic over the tracks on account of the dangers and delays at the crossing. On January 6, 1896, the city council passed an order providing for the construction of the viaduct, beginning in front of said block 12 and running north. The stock yards extended from a little north of Thirty-ninth street as far south as Forty-seventh street, on the west side of Halsted. The viaduct was begun about the middle of February, 1896, and completed in September of that year. The approach on Halsted street began in front of lot 25, and rose about one foot in thirty from that point north to lot 34, at the north-west corner of the block. At the north-west corner of lot 34 the approach was about nine feet above the natural surface, and there was an approach on Forty-first street adjoining the block connecting with the approach on Halsted street. On lot 25 there was a two-story frame building which did not belong to appellees and the other lots were vacant. After the completion of the viaduct appellees began this suit in the circuit court of Cook county to recover damages alleged in their declaration to have been sustained to lots 25 to 34, inclusive, except lot 30, by destroying the free and convenient access to and from the premises from the street and cutting off light and air. Additional counts were filed in 1897 and 1899, charging interference with access to and from the lots. Appellant pleaded the general issue, and there was a trial. The jury returned a verdict of guilty and assessed appellees’ damages at $10,750, and judgment was entered on the verdict. An appeal was taken to the Appellate Court for the First District, where the judgment was affirmed, and this appeal was then taken from the judgment of the Appellate Court.'
On the trial five witnesses were called by plaintiffs, and each one testified to the fair cash market value of the property before the passage of the order for the viaduct and such value after the completion of the viaduct, and each one said that he attributed the change in valuation to the construction of the viaduct. The different witnesses placed the market value before the viaduct was built at sums ranging from $150 to $200 a front foot and from $75 to $90 afterward. The lots for which damages were claimed had a total frontage of two hundred and twenty-five feet on Halsted street. On the direct examination no inquiry was made of either of these witnesses, and nothing was developed, as to the nature of the alleged injury to the property, the elements of damage included or the basis for his judgment. These witnesses were cross-examined by defendant for the purpose of ascertaining on what basis they estimated the damage. The most prominent element of damage in the minds of the witnesses was the character of the traffic and travel on Halsted street after the viaduct was built and the fact that fewer people came from the stock yards upon the street, so that less business could be done there. The plaintiff Spoor was one of these witnesses, and on cross-examination he said that before the viaduct was built people came from the stock yards over the tracks at Fortieth street upon Halsted street, and that fact brought business to the shops and stores; that people coming from the stock yards a block north of this property could not come on Halsted street, so that their trade was lost; that after the viaduct was built there was more traffic on the street than before, but that it was not of a character to stop there; that instead of the old horse cars that came along and stopped on each side of the tracks, there was a trolley system and the cars ran right through, stopping only at street crossings; that the blocking of the tracks across Halsted street was a benefit to the property and it was an injury to this property to have through travel; that the advantage to the property resulted not so much from traffic on the street, as the ability of the -traffic to stop and get at the place, and that the through traffic was a seriohs damage to the property because people did not walk on the street but went past on cars. Another witness, John W. Sweeney, testified that the former condition, when people got off and walked across the tracks and found other cars or had to wait, was a benefit to the property; that it took so long to go down town that people ^patronized their neighbors and left their money there; that men working in the stock yards came out at Fortieth street, a block north, and came upon Halsted street and patronized the places there, and that they spent their money and made business there, and business was diverted by turning it in other directions. He attributed the depreciation in value of the property largely to these causes, and said the fact of building the viaduct killed the business there, and taking that away left the property of little value. The witness was asked what the damage was by reason of this diversion of business which formerly came from the stock yards and. from the tracks at Fortieth street, but the court sustained an objection to the question. The defendant asked the witnesses to separate the damages resulting from the fact that people did not walk or stop on the street but went through on trolley cars and the diversion of traffic that formerly came on Halsted street, from the interference with ingress and egress to and from the lots, and other causes of damage. The witnesses could .not divide up the damages or distinguish between the different causes, and the defendant then moved to strike out the testimony as to depreciation in market value by reason of the construction of the viaduct, because the estimate included elements of damage for which there could be no recovery, but the motion was overruled.
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Mr. Justice Cartwright
delivered the opinion of the court:
Block 12 of the superior court partition of the west half of the north-west quarter of section 4, township 38, range 14, in Cook county, is in the city of Chicago, and is bounded on the north by Forty-first street, on the east by Emerald avenue, on the south by Root street and on the west by Halsted street. The block contains thirty-four lots, and in 1896 appellees were the owners of the entire block except five lots. The conveyance to them was of the whole block except lots 18,19 and 30, and they afterward sold lots 20 and 21. The west side of Halsted street was the private property of the Union Stock Yards and Transit Company, and Root street, Forty-first street and Fortieth street (which was the next one north) extended'east from Halsted street but did not cross that street. Fortieth street, one block north of this property, was occupied with seventeen railroad tracks of the Union Stock Yards and Transit Company. These tracks spread out in Fortieth street near the entrance to Halsted^street and the stock yards, and. occupied three hundred and fifty feet of Halsted street. Formerly, horse c-ars ran on Halsted street to Fortieth street and stopped. The passengers had to get off, cross the railroad tracks on foot and transfer to a car on the opposite side. In October, 1895, the city council ordered the street railway company to run its cars over the railroad tracks without causing passengers to transfer. By a conference between the Union Stock Yards and Transit Company, the City Railway Company and the appellant it was agreed that a viaduct should be built over the tracks, and the City Railway Company and the Union Stock Yards and Transit Company agreed to defray the expenses of the viaduct. The object of the viaduct was to carry the street traffic over the tracks on account of the dangers and delays at the crossing. On January 6, 1896, the city council passed an order providing for the construction of the viaduct, beginning in front of said block 12 and running north. The stock yards extended from a little north of Thirty-ninth street as far south as Forty-seventh street, on the west side of Halsted. The viaduct was begun about the middle of February, 1896, and completed in September of that year. The approach on Halsted street began in front of lot 25, and rose about one foot in thirty from that point north to lot 34, at the north-west corner of the block. At the north-west corner of lot 34 the approach was about nine feet above the natural surface, and there was an approach on Forty-first street adjoining the block connecting with the approach on Halsted street. On lot 25 there was a two-story frame building which did not belong to appellees and the other lots were vacant. After the completion of the viaduct appellees began this suit in the circuit court of Cook county to recover damages alleged in their declaration to have been sustained to lots 25 to 34, inclusive, except lot 30, by destroying the free and convenient access to and from the premises from the street and cutting off light and air. Additional counts were filed in 1897 and 1899, charging interference with access to and from the lots. Appellant pleaded the general issue, and there was a trial. The jury returned a verdict of guilty and assessed appellees’ damages at $10,750, and judgment was entered on the verdict. An appeal was taken to the Appellate Court for the First District, where the judgment was affirmed, and this appeal was then taken from the judgment of the Appellate Court.'
On the trial five witnesses were called by plaintiffs, and each one testified to the fair cash market value of the property before the passage of the order for the viaduct and such value after the completion of the viaduct, and each one said that he attributed the change in valuation to the construction of the viaduct. The different witnesses placed the market value before the viaduct was built at sums ranging from $150 to $200 a front foot and from $75 to $90 afterward. The lots for which damages were claimed had a total frontage of two hundred and twenty-five feet on Halsted street. On the direct examination no inquiry was made of either of these witnesses, and nothing was developed, as to the nature of the alleged injury to the property, the elements of damage included or the basis for his judgment. These witnesses were cross-examined by defendant for the purpose of ascertaining on what basis they estimated the damage. The most prominent element of damage in the minds of the witnesses was the character of the traffic and travel on Halsted street after the viaduct was built and the fact that fewer people came from the stock yards upon the street, so that less business could be done there. The plaintiff Spoor was one of these witnesses, and on cross-examination he said that before the viaduct was built people came from the stock yards over the tracks at Fortieth street upon Halsted street, and that fact brought business to the shops and stores; that people coming from the stock yards a block north of this property could not come on Halsted street, so that their trade was lost; that after the viaduct was built there was more traffic on the street than before, but that it was not of a character to stop there; that instead of the old horse cars that came along and stopped on each side of the tracks, there was a trolley system and the cars ran right through, stopping only at street crossings; that the blocking of the tracks across Halsted street was a benefit to the property and it was an injury to this property to have through travel; that the advantage to the property resulted not so much from traffic on the street, as the ability of the -traffic to stop and get at the place, and that the through traffic was a seriohs damage to the property because people did not walk on the street but went past on cars. Another witness, John W. Sweeney, testified that the former condition, when people got off and walked across the tracks and found other cars or had to wait, was a benefit to the property; that it took so long to go down town that people ^patronized their neighbors and left their money there; that men working in the stock yards came out at Fortieth street, a block north, and came upon Halsted street and patronized the places there, and that they spent their money and made business there, and business was diverted by turning it in other directions. He attributed the depreciation in value of the property largely to these causes, and said the fact of building the viaduct killed the business there, and taking that away left the property of little value. The witness was asked what the damage was by reason of this diversion of business which formerly came from the stock yards and. from the tracks at Fortieth street, but the court sustained an objection to the question. The defendant asked the witnesses to separate the damages resulting from the fact that people did not walk or stop on the street but went through on trolley cars and the diversion of traffic that formerly came on Halsted street, from the interference with ingress and egress to and from the lots, and other causes of damage. The witnesses could .not divide up the damages or distinguish between the different causes, and the defendant then moved to strike out the testimony as to depreciation in market value by reason of the construction of the viaduct, because the estimate included elements of damage for which there could be no recovery, but the motion was overruled. It appears from the statements of the court in ruling on the objections that the view of the court was, that while a party could not sue and recover for loss of profits to business on account of a viaduct, yet if there was an injury to abutting property there could be a recovery for everything that went to make up the market value of the lots, whether it was a diversion of traffic or whatever it might be. This being a suit where access to the property was affected, the court seems to have held that everything resulting from the improvement which affected unfavorably the utility of the property for business purposes was an element of damage.
The rule that there can be a recovery for any injury to property by cutting off access to a public street whereby the property is permanently damaged and depreciated' in value was established in Rigney v. City of Chicago, 102 Ill. 64. The court, however, limited the right of recovery in this language (p. 80): “In all cases, to warrant a recovery it must appear there has been some' direct physical 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.” Afterward, in Lake Erie and Western Railroad Co. v. Scott, 132 Ill. 429, where there was a right to the use of a highway in connection with the farm of Scott, he was allowed to recover damages for interference with the use of the highway by the location of a railway, lessening the value of the farm. In neither of these cases was any damage allowed for a diersion of travel or traffic from the highway or street, but in Hohmann v. City of Chicago, 140 Ill. 226, the question involved in this case was considered. In that case Hohmann owned a leasehold estate in premises in which he carried on the saloon business in the first story and occupied the second story as a residence. . The declaration charged the city with erecting a viaduct on Northwestern avenue, one of the approaches being in front of the said premises, thereby obstructing the access to said premises and diminishing the easements of light and air. It was alleged that the leasehold estate was depreciated in value and the traffic and travel of Northwestern avenue was lessened, diverted, obstructed and cut off, so as to diminish the, receipts of Hohmann’s business. Evidence of the same character as in this case, to the effect that a large number of persons employed in railroad yards had formerly patronized plaintiff, and that after building the viaduct his business fell off and the market value of his leasehold was diminished, was offered and rejected. Persons coming on foot from the railroad yards preferred, as in this case, to go some other way rather than ascend the stairway up to the roadway of the viaduct. This court recognized the rule that plaintiff had a right to have the avenue kept so as not to cut off access to his premises, and that if it was cut off it was a matter proper for the jury to consider, but it was held that a diversion of customers was not an element of damage for which Hohmann could recover. The effect of the evidence would have been to show that less people traveled along the avenue than formerly and the number of customers was diminished, but it was held that Hohmann had no legal interest in the amount of general travel by the public along the avenue and no legal right to complain that it was lessened.'
An owner of property has no legal right that traffic shall g‘o past in horse cars or on foot, or that a city shall not increase the facilities for through travel. Any scheme of rapid transportation would have had the same effect on this property detailed by the witnesses, and the only relation the viaduct had to the trolley was, that it created facilities for that method of transportation. It was not a right of the plaintiffs, as against the city, to have Halsted street maintained in such a way that people coming from the stock yards would find it convenient to come out upon Halsted street, so as to make more travel and traffic by the property. As they had no legal right of that kind there was no infringement of any right, and there could be no recovery for resulting damages. It is clear that the amounts estimated by plaintiffs’ witnesses consisted, in large part, of damages of that character. With one exception they made no distinction as to the damage between lot 25, where the approach commences and access is hardly obstructed at all, and lot 34, where the approach is about nine feet high; and the lots are all. of the same character, being vacant and not used for any kind of business. As the estimates included damages for injuries to supposed legal rights which had no existence, the court erred in not striking out the testimony when moved to do so.
It is argued on the other side that it was proper to leave the estimates of damage by plaintiffs’ witnesses before the jury, although they included damages not recoverable, and then control the evidence by an instruction. It is plain that the injury to the defendant could not be repaired by an instruction. The witnesses themselves were not able to separate the damages and state what part of their esti mate rested on an improper basis. The jury could not separate what the witnesses who made the estimate could not, and no instruction would enable them to do so. Furthermore, the rule is not as claimed. If evidence is competent for one purpose and not for another its application may be controlled by an explanation to the jury when it is admitted, or, in some cases, by an instruction; but where it is not proper for any purpose it is error to submit it to the consideration of the jury. The evidence of damages resulting from diversion of traffic or changing the method of transportation on the street was not legitimate for' any purpose, and opinions of witnesses based on depreciation from those causes should have been excluded.
Again, the instructions, in our opinion, did not put before the jury the correct rule. There were some instructions on the subject, and the view of the court is fairly shown by instruction No. 7 which was asked by the defendant and modified by the court. That instruction as asked was as follows:
“The jury are instructed that the plaintiffs herein are not entitled to recover because of any alleged injury resulting to the fair cash market value of said premises because of any alleged diversion of traffic off from Halsted street, in front of said premises, by the construction of said viaduct, even if they believe, from the evidence, that any such diversion of traffic has in fact resulted from such cause.”
But the'court added the following: “But if you believe, from the evidence, including your view of the premises, that the fair cash market value of the premises was decreased by reason of the obstruction to the ingress and egress thereto caused by said public improvement, this would be' an element of damage if such obstruction is shown by the evidence, including your view of the premises. Diversion of traffic as a result of a public improvement is an element of damage which is considered, in law, too remote and speculative to become the basis of recovery in a suit wherein a person seeks damages or loss of profits to his business from the author of such improvement, because it would be impossible to ascertain how many persons were diverted from this accustomed route by reason of the improvement alone and how many from other causes or from mere caprice. But if a public improvement depreciate the value of abutting property, then every element which the jury may find, from the evidence and its view of the premises, which directly affects the market value of the property by reason of the public improvement, so as to make it of less value upon the market after such public improvement than it was before, is proper for the jury to consider in a suit where the question is not as to loss of profits to business, but for damages to abutting property.”
The instruction as asked stated that the plaintiff could not recover because of any alleged injury resulting from a diversion of traffic from Halsted street. The qualifications added by the court were, first, that obstruction to the ingress and egress to and from the premises would be an element of damage, which was foreign to the subject of -the instruction; second, diversion of traffic is an element of damage too remote and speculative to be the basis of recovery where a party seeks damages for loss of profits to his business; but third, if the question is not loss of profits in business but damages to abutting property, then every element which directly affects the market value of the property by reason of the public improvement is proper for the jury to consider. Defendant was entitled to a clear statement of the rule of law as asked, that diversion of traffic was not an element of damage, without annexing a statement that something else would be; and we think the instruction as finally modified, in its discursive form, might readily be understood as laying down the rule that it is proper to consider diversion of traffic affecting the market value of the property if the suit is for damages to abutting property, but not if the suit is for loss of profits in business. This is not materially different from the statements of the court in ruling on the questions raised on the evidence. It could not be said that if a party should sue for damages on account of a diversion of traffic he could not recover because he had no legal right which had been infringed, but if he sued for damage by cutting off access to his property he could include damages from diversion of traffic as to which he had no legal right.
It is also urged that the defendant waived its right to complain of the errors by the cross-examination of plaintiffs’ witnesses and introducing evidence that increased facilities for travel benefited the property. . Counsel say that plaintiffs’ witnesses said nothing about the elements of damage on which they based their estimates in the direct examination, but that defendant brought it out by cross-examination. It is true that a party cannot adopt a theory of the law and then complain that the theory was not the right one; but here the defendant cross-examined the witnesses for the purpose of showing the basis of their estimate to be unsound and illegal and for the purpose of having the testimony struck out. Defendant did not adopt the theory against which it was protesting. Neither did the defendant waive its right by introducing" evidence that better facilities for travel brought the property nearer to the business center, and did not injure it, as claimed by the plaintiffs. After the court had ruled that the testimony should remain in, it was the right of the defendant to contradict it. The defendant did not bring before the jury the diversion of traffic as a proper element of damage, but only showed that this improper element was included in the estimate of plaintiffs’ witnesses.
Complaint is made that the court refused to allow any inquiry as to benefits from the improvement to lots 22, 23 and 24, fronting on Halsted street south of the approach, and to the lots fronting on Emerald avenue. Defendant did not make any inquiry about the effect on the three lots which fronted on Halsted street and which were connected with the property as to which damages were claimed, but did make such inquiry as to the lots front-, ing on Emerald avenue, and the court refused to admit the evidence. The lots on Emerald avenue were separated from the other lots by an alley sixteen feet wide, and under the ruling in White v. Metropolitan West Side Elevated Railroad Co. 154 Ill. 620, the ruling of the court was right. These lots were not connected with the lots sued for, and plaintiffs could neither recover damages for injury to them nor defendant set up the alleged benefits. During the examination of one of defendant’s witnesses a photograph was offered showing the location of buildings upon an approach to a viaduct and the appearance of such buildings. The court admitted the photograph, but said: “It is for the jury to say how much stock they take in testimony of that kind.” The intimation was that the jury ought not to give any weight to the evidence. It was an interference with the function of the jury, and error. Kennedy v. People, 44 Ill. 283; Andreas v. Ketcham, 77 id. 377.
At the close of the evidence the defendant moved the court to direct a verdict for it, which the court refused to do. It is argued that the order under which the viaduct was built was void, and for that reason there was no liability on the part of the defendant. The argument is based on the proposition that the viaduct could only be legally constructed in pursuance of an ordinance, and as it was constructed under an order of the city council the city was not liable. The improvement was not beyond the authority of the defendant, and where there is power to pass an ordinance or undertake an improvement, any irregular or defective exercise of the power is no protection to the city. (Elliott on Roads and Streets, —2d ed.—sec. 503.) It is immaterial whether the defendant proceeded regularly or irregularly in the exercise of its power.
We have noticed the most material questions raised by counsel, and being of the opinion that the defendant did not have a fair trial upon the proper basis as to damages, the judgments must be reversed.
The judgments of the Appellate Court and circuit court are reversed and the cause is remanded to the circuit court.
Reversed and remanded.