Mr. Justice Scholfield
delivered the opinion of the Court:
The questions .first arising upon this record requiring our consideration, relate to the exclusion of certain evidence offered by appellant, and rejected by the court.
Luther W. Crocker having testified that he was acquainted with the location of appellant’s track in the town of Lake, that he had held in that town the office of overseer of highways, commencing about 1865 and continuing to the latter part of 1867, and that as such overseer it was his duty to repair roads and bridges, was asked by appellant’s counsel: “As such overseer, state whether you regarded Stewart avenue as being a public highway for repairs to be made by you, as such overseer?” This was objected to by appellee’s counsel, and the objection sustained. Appellant’s counsel then said: “I offer to prove by this witness, that as overseer of highways he did not regard Stewart avenue as being a public highway to. be repaired by him. ” The court held the proposed evidence incompetent, and the counsel excepted.
Albert Colvin testified, among other things: “While I was a member of the board- of assessors of the town, I don’t think that portion of Stewart avenue occupied by the tracks was ever used for any other purpose only as railway tracks,— only for right of way for tracks. That was the general understanding and impression among the officers of the town for a number of years,—that has been their impression from about the time the town organized under a charter. ” The testimony of the witness as to the understanding and impression of the officers of the town was objected to by the counsel for appellant, and he moved to have the same stricken out, which motion the court sustained.
Josiah Gray was asked this question: “State whether it will be necessary, in the near future, to use the four tracks now on Stewart avenue solely for the running of freight and passenger trains thereon?” This was objected to by counsel for appellee, and the objection was sustained by the court. The counsel then proposed- to prove by the witness that the demand of the business then required the use of those two side-tracks for main tracks, and that very soon they will be converted into main tracks, and further use for storage of cars be entirely dispensed with. Counsel for appellee objected to the reception of such evidence, and the court sustained the objection. The same witness was also asked what he had heard the officers of the road say on this subject, which was also objected to, and objection sustained by the court; and he was then asked what increase of the facilities for stocking cars was then being made by appellant in the vicinity of Forty-seventh and Fifty-ninth streets, and this also was objected to by counsel for appellee, and the objection sustained by the court.
To each of these rulings proper exception was taken, and they are now, in argument, claimed to be erroneous, and to authorize a reversal of the judgment.
The position is wholly untenable. The witnesses were not experts, and it was for them to state facts only, and for the jury to draw conclusions from those facts. Whether a thoroughfare is used, and how used, worked upon by public authorities, or abandoned, depends on certain facts only, and not on the opinions of witnesses. So, also, the use made of the street by appellant is an existing fact. What use ought to be made of it in the future, is matter of opinion about which different men might have different notions—a mere matter of speculation. What the officers of the road said as to the intended future use, is doubly objectionable,—it is mere hearsay, and that, too, in regard to a matter of opinion. Had appellant, through its board of directors or other proper officers, actually directed a particular use of the street in the future, that would doubtless have been competent evidence; but this was not the effect of the evidence excluded. The court heard all the evidence of facts that was offered, and its ruling in the respect under consideration is free of all objection.
The next question raised in argument is, did the court err in rejecting certain propositions of law presented by counsel for appellant. By agreement of parties the cause was tried by the court without the intervention of a jury. By sec. 41 of the Practice act, (Eev. Stat. 1874, p. 780,) it is provided: “In all cases, in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court, and upon such trial either party may, within such time as the court may require, submit to the court written propositions, to he held as law in the decision of the case, upon which the court shall write ‘refused,’ or ‘held,’ as he shall he of opinion is the law, or modify the same, to which either party may except, as to other opinions of the court. ” The propositions were submitted pursuant to this provision, and are, therefore, properly before us for investigation.
The first proposition refused is as follows: “The defendant received authority from the State of Illinois to lay and operate its tracks upon and along Stewart avenue, so-called, opposite to plaintiff’s said lot, and the manner in which the evidence shows that authority has been exercised gives the plaintiff no right of recovery in this case, unless thereby some physical injury has been done to said premises, or unless the plaintiff has shown a right of recovery under the sixth count of his said declaration. ”
The Pittsburg, Fort Wayne and Chicago Eailroad Company was formed by consolidation between the Ohio and Pennsylvania Eailroad Company, the Ohio and Indiana Eailroad Company, and the Fort Wayne and Chicago Eailroad Company, on the 6th day of May, 1856. These several corporations were organized under special charters granted by the States of Pennsylvania, Ohio, Indiana and Illinois, respectively, and the consolidation was authorized by the necessary legislation of each of these States.
The charter of the Fort Wayne and Chicago Eailroad Company, granted by this State, by its fifth section provided: “The said company are hereby authorized to use and exercise all the powers for appropriating and obtaining the rights of way for the construction, maintenance and use of said road, that are given and expressed by the act entitled 1 An act to provide for a general system of railroad incorporations,’ approved November 5, 1849; and in case any lands so appropriated shall not be donated to the company, or in case of disagreement between the owner thereof and said company as to the fair value thereof, the sum to be paid shall be determined in the manner prescribed by said act.” And the ninth section of such charter is as follows: “The said company are hereby authorized to construct their road upon or across any stream or water course, road or highway, railroad or canal, which the route of its road shall intersect; but the corporation shall restore the stream or water course, road or highway, railroad or canal, thus intersected, to its. former state, or in a sufficient manner not to have impaired its usefulness.”
The portion of the act of November 5, 1849, supposed to bear upon the question before us, is from section 26, and is as follows: “If any such corporation shall, for its purpose aforesaid, require any land belonging to the people of this State, or to any of the counties or towns, the General Assembly of the State, and county or town officers, respectively, having charge of such lands, may grant such lands to such corporations for a compensation which .shall be agreed upon between them, and if they shall not agree upon a sale and price, the same may be taken by the corporation as before provided in respect to other cases. ”
The board of commissioners of highways of the town of Lake, by an instrument made and acknowledged on the 17th of May, 1858, purported to grant, convey and quitclaim to the Pittsburg, Fort Wayne and Chicago Bailroad Company, the use, for its railroad, “of the right of way over, across and along the street sometimes called 1 Stewart avenue,’ or 1 School street,’ extending north and south through the centre of the section,” etc., and to “authorize, permit and allow the said company to lay its track or tracks, side-track, switches and turn-outs, in and along said street, avenue or public highway, and to operate, maintain and run its locomotives and cars over the same, and to continue to use and occupy the same, or so much thereof as may be necessary for the purpose of the business of the said railroad, forever. ” Two questions are thus presented, growing out of the refusal of the court to hold the foregoing proposition of law:
First—Was the right to appropriate the entire use of Stewart avenue conferred upon the railroad company by the charter of “The Fort Wayne and Chicago Bailroad Company?”
Second—If not, did the purported deed of the board of commissioners of highways of the town of Lake confer such right of use ?
The ninth section of the charter of the Fort Wayne and Chicago Bailroad Company is the only section that assumes to expressly confer power upon the company to construct its road along a highway; but it will be observed this explicitly requires the corporation tq restore the highway to “its former state, or in a sufficient manner not to have impaired its usefulness.” This is but equivalent to allowing a joint use by the railroad company for its road and by the public for an ordinary -highway, of the avenue, but specially protecting its use as an ordinary highway against any impairment. The quotation from section 26 of the act of November 5, 1849, clearly has no reference to highways. It relates to “land belonging to the people of this State, or to any of the counties or towns, ”—that is to say, land which belongs to the people, counties or towns, as owner, and not such whereof the nominal title only is held in order that a prescribed public use of the land may be enforced. That this is the intention, is put beyond doubt by the fifth clause of section 21 of the same . act, which, in prescribing the powers vested in the corporation, uses this language: “To construct their road upon or across any stream of water, water course, road, highway, railroad or canal, which the route of its road shall intersect; but the corporation shall restore the stream or water course, road or highway thus intersected, -to its former state, or in a sufficient manner not to have impaired its usefulness.” Since here is express authority for laying tracks upon, as well as across, streets or highways, carefully guarded so as to protect the public necessities, it would be absurd to suppose that the legislature intended to enact another section on the same subject, but without at all guarding the public necessities. And this view is still further strengthened by reference to section 25, which- authorizes the company to acquire additional lands, where a change in the line of the highway becomes necessary by reason of an embankment or cutting for the railroad, thus showing that it was constantly in mind to preserve the highway for public use as an ordinary highway. Although, in a general sense, highways or streets, where the fee is in the State or a municipal corporation, are lands belonging to the people of the State, or to the municipal corporation, they are in legislation universally, so far as we recall, referred to as'“highways,” or “streets,” and not as public lands. The ownership, in reality, in such cases, is but nominal, and entirely subordinate to the public trust for which the title is held. See Chicago v. Rumsey, 87 Ill. 348.
It results, then, that while, under its charter, the railroad corporation may doubtless have had the right to lay its tracks in Stewart avenue, that right was not an exclusive one, and could only be enjoyed in common with the use of the avenue by the public as an ordinary highway, and without materially impairing its usefulness as such. The commissioners of highways óf the town of Lake had no title in this avenue, and no authority whatever to barter or convey any interest therein. They were invested with the care and superintendence of highways, and it was their duty to take measures to open and keep them in repair, alter and discontinue them under certain circumstances, to cause obstructions to be removed, etc.; but no title was vested in them in regard to the highways, and they had no power to make conveyances for any purpose. (See 2 Purple’s Stats, p. 1156, title “Tp. Organization,” art. 22.) Their deed was therefore a nullity. H6w far it might be considered as a circumstance on the question of equitable estoppel, in regard to the tracks laid down in 1858, under the authority of Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 25, Chicago and Northwestern R. R. Co. v. The People ex rel. 91 id. 251, and Martel v. East St. Louis, 94 id. 67, we need not now consider, since such estoppel could, in any view, only apply to those tracks, and could not be held to authorize the laying of the two additional tracks in 1874. Besides this, the deed is not used for the purpose of proving, with other evidence, such an estoppel.
Counsel, however, contend that authority for the execution of this instrument may be found under provisions in sec. 2 of “An act to perfect the title of the purchasers of the Pitts-burg, Fort Wayne and Chicago railroad, and to enable them to form a corporation, and defining the powers and duties of said corporation,” .approved February 8, 1861. The language of that section, supposed to be pertinent, is as follows: “And the said corporation shall also possess all the faculties, powers, authorities, immunities, privileges and franchises at any time held by the said Pittsburg, Fort Wayne and Chicago Eailroad Company, or by any of the corporations heretofore consolidated into the said company, or conferred on the said company, the said corporations, or either of them, by an act or law of this State, or of either of the States of Ohio, Indiana or Pennsylvania, and shall have power and capacity to hold and exercise within each and every of the said States, and, so far as it may be deemed necessary to the general objects of its business, within any other of the United States, all the said faculties, powers, authorities, privileges and franchises, and all others which may hereafter be conferred upon it by or under any law of this State, or of any of the aforesaid States, and to hold meetings of stockholders and directors, and do all corporate acts aijd all things within any of the aforesaid States as validly as it might do the same within this State, and may consolidate with any corporation of said other States authorized to hold, maintain and operate the aforesaid railroad. ”
But this was enacted near three years after the purported deed of the commissioners was executed, and does not assume to have any retroactive effect for the .purpose of validating titles to right of way. Indeed, we think it quite clear that it has not the slighest reference to the mode of acquiring the right of way. It relates purely, as the language unmistakably shows, to the faculties, powers, authorities, privileges and franchises which may be deemed necessary to the general objects of its business within any other of the United States. It relates to the corporation itself, and is designed to make it a unit in each and all of the States in which its line is located, but it does not assume to affect the local -law in regard to the mode of acquiring title to right of way. It has the same power and capacity to take and hold right of way in this State that it does in the other States, but the mode of acquiring right of way is obviously very different from the capacity to take and hold it. The control of streets, and the mode of regulating then- use, and the mode of executing and acknowledging deeds and effecting condemnations, are matters of local law, affected, to some extent, by local constitutions, which it would doubtless be impossible to place under precisely the same law in each of these four States. At all events, we feel quite confident no such attempt has been here made. The provisions of the statutes of the other States can, therefore, have no bearing on the present question.
But counsel make the further point that the deed of the commissioners is color of title, and, being followed by possession and payment of taxes, bars appellee’s action. To make a colorable title there must be a party grantor, as well as grantee. (See Bride v. Watt et al. 23 Ill. 507; Brooks v. Bruyn, 35 id. 392.) The commissioners of highways can not be parties grantors in a deed of conveyance. It may be conceded that if, under any imaginable state of ease, they could be grantors, it is sufficient. But they can not be. Apart • from this, however, their deed only conveys a use of so much of the street as may be necessary, thus, in effect, reserving what is not necessary for the use of the public. It would be a novel doctrine, if a railroad, by getting permission to lay a track in a street, could be regarded as holding the entire street adversely to the public. The use, here, was joint and mutual, not exclusive, and therefore not adverse. Truesdale v. Ford, 37 Ill. 210. And this will apply equally to the deeds made to Tilden and others, and by them to appellant. However effective they may be as to the right of way actually occupied by their tracks, they can not affect the part of the street not thus occupied, and which there was evidence tending to show was used and occupied by the public as an ordinary highway until the laying of the additional tracks in 1874.
Again, counsel insist the title to the street was in the public. The first two tracks were laid in the street, under authority of law, before the constitution of 1870 took effect, and for that act there can be no recovery for damages not resulting from a direct physical injury to the appellee’s property, on the authority of Chicago v. Rumsey, 87 Ill. 848, and Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25. This may all be true, and still the proposition have been properly refused. The laying of the two tracks, as we have seen, could not have been, under the law, and the evidence tends to show was not in fact, an appropriation of the entire street. The public had a right to, and still used, the balance of the street. That balance appellant had no right to occupy. It did, in 1874, less than two years • before • suit was brought, occupy it by laying thereon two additional tracks, and, as the evidence tends to show, thereby completely excluded its use for ordinary street purposes, and on that side cut off appellee’s access to his lot. The proposition assumes that the two tracks laid in 1874 were lawfully laid, which we hold could not, under the uncontroverted facts, have been true. It was properly refused.
What has been said disposes, also, of the objections on account of the refusal of the second, third, fourth and fifth propositions.
The eighth proposition was properly refused, because it excludes the idea that there can be a recovery under the first", second, third, fourth or fifth .counts, by cutting off access to appellee’s property. This we do not understand comes within the definition of “physical injury,” as used in that proposition; yet this would be damaging the property, within the meaning of the present constitution, and constitute a ground of recovery. Shawneetown v. Mason, 82 Ill. 337.
■The eleventh proposition was properly refused, because it contemplates setting off benefits to one piece of property against damages done to another and distinct piece. Lot 22 of the school trustees’ subdivision of section 16, had been divided into two separate tracts, by a street running through its centre from north to south, and the injuries sued for are such as have been sustained by the west half of lot 22, whereas the proposition is to offset benefits which have resulted to any part of lot 22—that is, benefits to the east half of lot 22, disconnected entirely from the west half of that lot. This has never been held admissible.
The fourteenth proposition was properly refused,'because there was evidence tending to sustain a cause of action. It asserts, simply, that under the evidence there can be no recovery. There was evidence tending to authorize a recovery. Its weight was for the court.
The fifteenth and last proposition was properly refused, because it implies there can be no recovery for temporary injury, or for preventing access to appellee’s property byway of Stewart avenue.
We are not allowed to look into the evidence in this class of cases, as before observed, further than to see whether there is evidence tending to sustain the cause of action, the finding of the Appellate Court upon all controverted questions of fact being final. We are, therefore, to assume that Stewart avenue was by dedication a public highway or street; that by the laying of the two additional tracks in 1874, the use of the avenue for all ordinary purposes of a highway or street is entirely destroyed; that thereby all access to appellee’s lot from that side is cut off; that stock cars have been permitted to stand in the avenue, adjacent to that lot, creating a-nuisance, and that appellee has been otherwise injured in the use and enjoyment of his property. Clearly, this would authorize a recovery for some amount, and the question of what amount is not before us. Motion for new trial was made, and causes therefor assigned in writing, but it was not therein alleged that the damages are excessive. Errors were assigned in the Appellate Court, but no error was therein assigned on the ground that the damages are excessive.
In Emory v. Addis, 71 Ill. 273, we held, when excessive damages are not assigned as a ground for a new trial in the circuit court, nor for error in this court, the appellant is not in a position to have the question reviewed; and in Thayer v. Peck, 93 Ill. 357, we held, if a, defendant fails to assign for error in the Appellate Court that the judgment was too large, he would not be allowed to present that question in this court. There was also like ruling in Diversey v. Johnson, Admx. 93 Ill. 547; Page et al. v. People ex rel. etc. 99 id. 418; Litchtenstadt v. Rose, 98 id. 643.
' Perceiving no cause to disturb the judgment of the Appellate Court, it is affirmed.
Judgment affirmed.
Mr. Justice Dickey : I do not concur in the above.