#### John F. Eberhart v. Chicago, Milwaukee and St. Paul Railway Co.

1. Riqht OB' wat—measure of damage, where the property is not taken. Where land is not taken by a railway company for its right of way, but damaged only, the question should be, will the property be of less value, when the road is constructed, than it was when it was located ? If so, then the difference is the true measure of damages. To ascertain this, the opinions of intelligent witnesses on the subject, are proper.

3. Same—damages must he actual. The damages contemplated by the constitution, where the property is not taken for the use of a railway company, must be actual, real and present damage to the property.

Appeal from the Circuit Court of Cook county; the Hon. Henby Booth, Judge, presiding.

This was a proceeding to condemn lots 11, 12 and 17, in block 4, and lots 3, 4 and 5, in block 3, in Eberhart & Wedge’s addition to Chicago. The appellant was the owner of 73 lots in this addition. The appellee, being about to construct a railroad diagonally through them, filed its petition to condemn the lots above named, they being the only lots which the road touched or structurally injured in passing through the addition. The appellant (defendant below,) filed his answer and cross-bill, in which he claimed to own 68 lots adjacent to the road, besides those sought to be condemned, and asked that there be awarded to him, in the same proceeding, such damages as the jury should find those other lots *348would sustain by the location of the road. Under the instructions of the court, the jury gave $6000 for the lots taken,and nothing for those not taken. The defendant appealed, making no question as to the damages allowed for the lots taken, but complaining as to the finding as to the others.

Mr. Leonard Swett, and Mr. George Burry, for the appellant.

Mr. E. Walker, for the appellee.

Mr. Chief Justice Breese

delivered the opinion of the Court:

This was a proceeding instituted in the circuit court of Cook county, by The Chicago, Milwaukee and St. Paul Bail-way Company, against John F. Eberhart, to condemn certain land belonging to defendant, for their road way.

It appears the land was platted into lots, some of which were actually taken by the railway company, and damages allowed therefor, about which there is no controversy. The dispute is, as to the damage resulting to other lots in the plat, not taken, and what is the true rule in such case.

On the trial of the cause, various instructions were asked by both parties, which the court refused, supplying instructions of its own, to which both parties excepted, but which, in the argument now submitted, meet the approval of the petitioner. Much labor has been bestowed by counsel in this cause, in preparing it for our consideration. The leading eases in England, growing out of the interpretation, by the courts of that country, of the Lands Clauses Consolidation Act of 8 and 9 Victoria, chapter 18, and the Bailways Clauses Consolidation Act, of the same reign, chapter 20, have been cited and commented on, as well as cases in the courts of our own country, and divers views presented and enforced with great ability.

*349We had occasion to examine the questions here arising and discussed, at this term, in the case of the Chicago and Pacific Railroad Company v. Francis, ante, p. 238, in which a majority of the court held that, under the constitution and law, where land was not taken, but damaged only, the question should, be, will the property be of less value, when the road is constructed, than it was when it was located? If so, then the difference is the true measure of damages. To ascertain this, the opinions of intelligent witnesses could be called into requisition, and most of the elements entering into the question of damages, so strenuously objected to by the appellee here, were held proper to be considered.

The third instruction given by the court is not in conformity with the opinion in the case referred to, and should not have been given.

The fourth instruction asked by appellant, and refused, embraces, more nearly, the rule, as announced in the case cited. It was as follows:

“If the jury believe, from the evidence, that this respondent is the owner of the lots in said addition claimed by him, and that certain of these lots are to be entirely taken for railroad purposes, and certain other of his lots, lying adjacent, and not taken, are damaged by means of this taking, then, as to the lots not taken, the jury will find, as damages, the depreciation in the market value of the same by reason of the construction and maintenance of said railroad.”

All the questions raised here, however, are settled by Chicago and Pacific Railroad Company v. Francis, supra. It would be unprofitable to discuss them now. It may not be improper to say, that, in that case, the Chief Justice expressed his opinion that the constitution contemplates, when property is not taken, that the damages must be actual, real and present damage to the property, before they can be allowed.

*350For a full discussion of all those questions, we refer to Page et al. v. The Chicago, Milwaukee and St. Paul Pailway Company, (this same company,) ante, p. 324.

For the reasons given, the judgment is reversed and the cause remanded.

Judgment reversed.