Mr. Justice Wilkin
delivered the opinion of the Court:
The paper denominated a stipulation was properly stricken from the files. It was not, in any sense, an amendment to the original petition, as contended in argument, nor was it filed as such. It was not a plan or proposed plan of construction proper to be incorporated in the record, and therefore Railroad Co. v. Kidder, 21 Ill. 131, and other like cases cited, have no application. No argument or citation of authorities is needed to show that attorneys employed to represent the company on the trial, could not bind it by their agreement as to the plan of constructing its road. It is not claimed that they were given any -such special authority.
The evidence which plaintiff sought-to introduce, for the purpose, as is claimed, of showing that the opening was not intended to be permanent, was incompetent as offered, and the court ruled properly in excluding it. No offer was made to prove, by proper evidence, that the company intended to change the plan upon which the road is at present constructed. For anything appearing in the offer of proof, the company may have intended, after ascertaining the action of the water, to leave it just as it now is, or even so change it as to increase the injury. Having built the bridge, and maintained it as a part of the structure of its road for nearly three years, and having filed its petition to condemn, making no averment whatever of an intended or proposed change in the construction, it was not competent for plaintiff to prove, merely, that it did not intend the opening to be and remain permanent. If it had amended its petition so as to properly aver that it proposed to re-adopt the original plan of construction, and had supported it by the introduction of plans to be incorporated in the record, the question as to whether or not the opening should be treated as a permanent part of the construction, would have been raised. On the present state of the pleadings no such issue is presented.
The evidence introduced by the defendants to prove an injury to their house and levees was calculated to lead the jury to believe that such injuries were proper elements of damages to be considered in making their verdict, and should therefore have been excluded. If the sole object of its introduction was to illustrate the force with which water passed through the opening, as is now contended, it should have been so limited when offered.
There was manifest error in refusing to allow plaintiff to show that the alteration benefited the one hundred and sixty acres above the grade. There is nothing, however, in the record, to show that the testimony on that question could not have been introduced as well after the objection was withdrawn as when it was first offered. Therefore, if injury resulted to plaintiff for want of such evidence, it was self-imposed, and it can not complain.
The question raised on the assignment of errors as to giving and refusing instructions, involves a decision as to .the correctness of the rule adopted by the trial court for.the measure of damages. The lands in question border on the Sangamon river, and are, and always have been, subject to frequent overflow. There is no proof as to their value immediately prior to .the construction of the railroad; but it does appear that Bennett, the grantor of defendants, purchased the entire tract from the county, as overflowed land, for $1000, and it is clear, from all the proof, that without levees to protect it against the frequent freshets from the Sangamon river, it is of but little value. After defendants purchased, and before the break in the grade of the roadbed, they built a single line of levee from a point of high ground on the west, near the river, extending in an easterly direction, to and connecting with the railroad •embankment, whereby they effectually leveed two hundred and eighty acres of that part of the farm situated below or southwest of the road. On this trial, defendants confined their proof of damages to this two hundred and eighty acres, and all the witnesses who make any estimate as to the amount of damages, do so by giving their opinion as to the difference in value of that two hundred and eighty acres before and after the change complained of was made, or, with the above mentioned levee and without it. For instance, the defendant Hamilton,, in his evidence, says: “The fair market value of the land below this railway embankment, and within the line of our levee, at the time the opening in the embankment was made, I think is $25 an acre. After the opening was made, I do not think it was worth more than $10 an acre. I figure this difference upon two hundred and eighty acres, and the difference per acre was §15.” On cross-examination, as to this estimate, he says: “I took into account the levee there, and its connection with the embankment, and our use of the embankment as a part of the levee.” While it is true that some of the witnesses speak of the increased force with which water is thrown upon the land below, and the impracticability of making levees with the opening in the grade, as elements of damages occasioned by the change, they make no estimate on that basis, nor do they furnish such facts as would enable a jury to do so, except on the theory adopted by Mr. Hamilton.
The court charged the jury, in the third and fourth instructions given on behalf of defendants, that “the proper measure of damages for land damaged but not taken, is the difference between the market value of the land before and after the act of the railroad company which occasioned the damage; ” that “the damages to he awarded to the defendants is the difference between the value of the land so damaged before, and the value of said land after, the break was made.” Plaintiff asked an instruction, (numbered 6 in its series,) which would, in effect, have informed the jury, that in assessing defendants’ damages they should not take into consideration the fact that but for said opening defendants might maintain a levee by attaching the same to the railroad embankment, and use it as a part of such levee to protect their land from overflow; but the court refused to give it. From the evidence, and the giving and refusing of the above mentioned instructions, it is manifest that defendants were allowed to recover, not only for the injury to their land occasioned by the construction and operation of a railroad .built on the plan adopted by the change, hut for loss resulting to them from the removal of an improvement put on the land by the plaintiff, or the company from 'which it purchased. Something is said, in the argument, about a contract, by which defendants had a right to use the railroad embankment as part of their levee; but there is no proof of an agreement between them and the plaintiff which would vest in them an interest'in the embankment, or a legal right to compel plaintiff to maintain it, nor did the law, in view of the circumstances under which it was built, give them, as owners of the land, any right of property therein. Chicago and Alton Railroad Co. v. Goodwin et al. 111 Ill. 273; Ellis v. Rock Island and Mercer County Railroad Co. 125 id. 82.
There is no claim, on behalf of defendants, that the change in construction was a wrongful or negligent act, and if there was, there could be no recovery by them in this proceeding » for such wrong or negligence.
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Mr. Justice Wilkin
delivered the opinion of the Court:
The paper denominated a stipulation was properly stricken from the files. It was not, in any sense, an amendment to the original petition, as contended in argument, nor was it filed as such. It was not a plan or proposed plan of construction proper to be incorporated in the record, and therefore Railroad Co. v. Kidder, 21 Ill. 131, and other like cases cited, have no application. No argument or citation of authorities is needed to show that attorneys employed to represent the company on the trial, could not bind it by their agreement as to the plan of constructing its road. It is not claimed that they were given any -such special authority.
The evidence which plaintiff sought-to introduce, for the purpose, as is claimed, of showing that the opening was not intended to be permanent, was incompetent as offered, and the court ruled properly in excluding it. No offer was made to prove, by proper evidence, that the company intended to change the plan upon which the road is at present constructed. For anything appearing in the offer of proof, the company may have intended, after ascertaining the action of the water, to leave it just as it now is, or even so change it as to increase the injury. Having built the bridge, and maintained it as a part of the structure of its road for nearly three years, and having filed its petition to condemn, making no averment whatever of an intended or proposed change in the construction, it was not competent for plaintiff to prove, merely, that it did not intend the opening to be and remain permanent. If it had amended its petition so as to properly aver that it proposed to re-adopt the original plan of construction, and had supported it by the introduction of plans to be incorporated in the record, the question as to whether or not the opening should be treated as a permanent part of the construction, would have been raised. On the present state of the pleadings no such issue is presented.
The evidence introduced by the defendants to prove an injury to their house and levees was calculated to lead the jury to believe that such injuries were proper elements of damages to be considered in making their verdict, and should therefore have been excluded. If the sole object of its introduction was to illustrate the force with which water passed through the opening, as is now contended, it should have been so limited when offered.
There was manifest error in refusing to allow plaintiff to show that the alteration benefited the one hundred and sixty acres above the grade. There is nothing, however, in the record, to show that the testimony on that question could not have been introduced as well after the objection was withdrawn as when it was first offered. Therefore, if injury resulted to plaintiff for want of such evidence, it was self-imposed, and it can not complain.
The question raised on the assignment of errors as to giving and refusing instructions, involves a decision as to .the correctness of the rule adopted by the trial court for.the measure of damages. The lands in question border on the Sangamon river, and are, and always have been, subject to frequent overflow. There is no proof as to their value immediately prior to .the construction of the railroad; but it does appear that Bennett, the grantor of defendants, purchased the entire tract from the county, as overflowed land, for $1000, and it is clear, from all the proof, that without levees to protect it against the frequent freshets from the Sangamon river, it is of but little value. After defendants purchased, and before the break in the grade of the roadbed, they built a single line of levee from a point of high ground on the west, near the river, extending in an easterly direction, to and connecting with the railroad •embankment, whereby they effectually leveed two hundred and eighty acres of that part of the farm situated below or southwest of the road. On this trial, defendants confined their proof of damages to this two hundred and eighty acres, and all the witnesses who make any estimate as to the amount of damages, do so by giving their opinion as to the difference in value of that two hundred and eighty acres before and after the change complained of was made, or, with the above mentioned levee and without it. For instance, the defendant Hamilton,, in his evidence, says: “The fair market value of the land below this railway embankment, and within the line of our levee, at the time the opening in the embankment was made, I think is $25 an acre. After the opening was made, I do not think it was worth more than $10 an acre. I figure this difference upon two hundred and eighty acres, and the difference per acre was §15.” On cross-examination, as to this estimate, he says: “I took into account the levee there, and its connection with the embankment, and our use of the embankment as a part of the levee.” While it is true that some of the witnesses speak of the increased force with which water is thrown upon the land below, and the impracticability of making levees with the opening in the grade, as elements of damages occasioned by the change, they make no estimate on that basis, nor do they furnish such facts as would enable a jury to do so, except on the theory adopted by Mr. Hamilton.
The court charged the jury, in the third and fourth instructions given on behalf of defendants, that “the proper measure of damages for land damaged but not taken, is the difference between the market value of the land before and after the act of the railroad company which occasioned the damage; ” that “the damages to he awarded to the defendants is the difference between the value of the land so damaged before, and the value of said land after, the break was made.” Plaintiff asked an instruction, (numbered 6 in its series,) which would, in effect, have informed the jury, that in assessing defendants’ damages they should not take into consideration the fact that but for said opening defendants might maintain a levee by attaching the same to the railroad embankment, and use it as a part of such levee to protect their land from overflow; but the court refused to give it. From the evidence, and the giving and refusing of the above mentioned instructions, it is manifest that defendants were allowed to recover, not only for the injury to their land occasioned by the construction and operation of a railroad .built on the plan adopted by the change, hut for loss resulting to them from the removal of an improvement put on the land by the plaintiff, or the company from 'which it purchased. Something is said, in the argument, about a contract, by which defendants had a right to use the railroad embankment as part of their levee; but there is no proof of an agreement between them and the plaintiff which would vest in them an interest'in the embankment, or a legal right to compel plaintiff to maintain it, nor did the law, in view of the circumstances under which it was built, give them, as owners of the land, any right of property therein. Chicago and Alton Railroad Co. v. Goodwin et al. 111 Ill. 273; Ellis v. Rock Island and Mercer County Railroad Co. 125 id. 82.
There is no claim, on behalf of defendants, that the change in construction was a wrongful or negligent act, and if there was, there could be no recovery by them in this proceeding » for such wrong or negligence. It will be seen, by reference to the former opinion herein, that the case on this trial is to be treated simply as a proceeding for re-assessment of damages as to the land not taken but injured, and that the measure of defendants damages is the increased or additional injury, if any, caused by the alteration. In an original proceeding to condemn, the measure of damages is the difference between the value of the land, as a whole, before and after the construction of the road built according to the plan proposed. Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238; Page et al. v. Chicago, Milwaukee and St. Paul Railway Co. id. 324; Eberhart v. Chicago, Milwaukee and St. Paul Railway Co. id. 347; Dupuis et al. v. Chicago and North Wisconsin Railway Co. 115 id. 97; Chicago, Burlington and Northern Railroad Co. v. Bowman et al. 122 id. 595. As to these lands, such damages accrued to Bennett, as heretofore decided. If, after damages have been assessed, or settled by agreement, a change in the plan of construction, involving more damages, is made, the owner may demand a new assessment as to such increased damages. (Mills on Eminent Domain, 219.) To the same effect is the holding in the former decision herein. The proper inquiry, on this trial, was, whether or not the lands in question, as a whole, were damaged more by the railroad built on its present plan, than they were as it was first constructed, and if they were, to determine the amount of such increased damages.
We think the giving of defendants’ third and fourth instructions, and the refusal of plaintiff’s sixth, was error.
The giving of defendants’ first instruction was also error. By it the jury were instructed, that if they should find that the alleged change was made, and that by means thereof the lands of defendants below and adjoining the railroad were damaged, then the defendants are entitled to just compensation for the damages so done to their said land. There is some evidence in the record tending to show that the one hundred and sixty acres above the road was benefited by the change; yet this instruction takes the consideration of such benefits from the jury entirely, and confines their inquiry to the two hundred and eighty acres which was damaged. As already stated, and as will be seen from Page et al. v. Chicago, Milwaukee and St. Paul Railway Co. supra, and other cases above cited, the measure of damages, in such a proceeding, as to lands injured but not taken, is the difference in the value of the -property, as a whole, before and after the construction of the road, and therefore, even if it had been proper to allow defendants damages for being deprived of the use of the embankment as a levee to the two hundred and eighty acres, the benefits to other portions of the farm should have been considered in reduction of .such damages. The amended cross-petition did not have the effect of confining the inquiry to the lands below the road, as counsel assume. - The trial below seems to have been conducted throughout as a proceeding in the nature of an action for damages resulting to the two hundred and eighty acres by reason of a negligent or wrongful failure on the part of plaintiff to properly maintain its embankment, rather than a proceeding to ascertain just compensation under the eminent domain laws of this State.
Under the last assignment of error, it is insisted that the verdict is fatally defective, because it finds a gross sum to be paid defendants, instead of compensation and damages separately, and in failing to describe the land.” The authorities cited in support of this position are not in point. They simply hold that the verdict in such proceeding must conform to the requirements of the law under which it is had. We find nothing in our present statute requiring a more definite or specific finding by the jury than is here returned. The verdict is sustained by Peoria, Pekin and Jacksonville Railroad Co. v. Peoria and Springfield Railroad Co. 66 Ill. 174, and Illinois Western Extension Railroad Co. v. Mayrand, 93 id. 591.
For the errors indicated, the judgment of the circuit court must be again reversed, and the cause remanded.
Judgment reversed.