Transportation Company v. Chicago

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This is an action of trespass on the case by the Northern Transportation Company of Ohio against Chicago, Ill., to recover damages sustained by reason of the construction by that city of a tunnel under the Chicago River along the line of La Salle Street. The company offered evidence tending to prove that it possessed a certain lot in Chicago, with dock and wharfing rights and privileges; that it owned a line of steamers running between Ogdensburgh, New York, and Chicago, and touching at intermediate points; that during 1869 and 1870 it had thirteen or fourteen of them employed, five of them arriving and departing each week from its dock on said lot, where it had, at an expense of $17,000, constructed a warehouse and shed used in loading and unloading them, and where its office was located; that its dock extended eighty feet on the south side of the lot which abutted on the Chicago River, a navigable stream; that the city commenced, Nov. 1, 1869, building a tunnel under the river on the east line of the lot at its intersection with the river and La Salle Street, and erected a coffer-dam in front of the dock; that said dam remained until some time in August, 1870; that about Nov. 1, 1869, the city commenced excavating La Salle Street, and excavated it for some distance, blocking up the doors of the warehouse on that street, and leaving free only the entrance on Water Street; that by reason of the construction of said dam plaintiff was unable to bring its boats up to the dock or to land freight and passengers thereat, and was compelled to rent and remove to other docks and sheds; and that the negligent and improper manner in which the work, especially the excavating, was done, greatly damaged and injured the warehouse, and caused the walls to crack, settle, and in several places to fall.

The city offered testimony tending to prove that the work was, without unnecessary delay, well and carefully done; that the coffer-dam as constructed was required for the construction of the tunnel; that the company could during the time have had access with its boats to a portion of the lot; and that the obstructions complained of were unavoidable in the proper construction of the tunnel.

To the following portions of the charge of the court to the jury the plaintiff excepted:--

'The defendant had the right under the law to enter upon La Salle Street and make such public improvements as in the judgment of the city authorities were necessary, and to construct the tunnel in question; and for that purpose to enter upon the portion of the river in front of the plaintiff's lot and construct the coffer-dam there, if it was necessary to enable them to construct the tunnel.'

'The plaintiff took its lot subject to the right of the city to make these necessary public improvements in the streets. The method of crossing the river at this point, whether by a ferry, a bridge, or a tunnel, was one to be determined by the city authorities; and when they had determined to effect the crossing by a tunnel, they had a right to use and occupy so much of the street as was necessary to construct the tunnel, using due skill and care and despatch always in doing it, so as not unnecessarily to interfere with private property.'

'Although the plaintiff may for the time being have been deprived of the beneficial use of its property by such entry upon the street, and access to the property through the street practically prevented by the occupation of the street for the purposes of constructing the tunnel, and although access to the lot from the river may have been partially prevented during this time, yet these were incidental inconveniences, to which the plaintiff, as the owner of this lot, must submit in order that the public may be accommodated by the construction of this tunnel. The city had the same right to enter upon the river for the purpose of erecting works there to facilitate the construction of the tunnel that it had to enter upon the street and construct the tunnel itself, always, however, subject to the condition that they should not unnecessarily or negligently injure the plaintiff.'

'There is left, however, the question to be considered by you in the light of the evidence as to whether this work in La Salle Street was so unskilfully or negligently done as to cause any part of the walls to fall or the building to be impaired. You have heard all the testimony bearing upon this question. It shows that the southeast corner of the warehouse, where the office and vault were situated, became so impaired by the cracking or leaning of the wall outwardly that it was deemed necessary to take it down; and it was taken down and rebuilt. Although there was no apparent settling of the ground in the immediate vicinity, nor any caving in, yet the wall seemed to fall from some cause from that point, and the claim is that it fell from the construction of this tunnel by some displacement of the surface, which was, perhaps, not apparent to the eye. You will also bear in mind that the evidence shows that further along, near the north end of the plaintiff's building, there was a caving in of the bank, so that the earth near, or perhaps immediately under, the wall was to some extent displaced. The wall fell down there and was subsequently rebuilt, and the building repaired to some extent. You have heard all the testimony in regard to the extent of the repairs, and to the manner in which the building was left, and it is for you to say whether the building was substantially restored to its original condition by the repairs which were made, so that the plaintiff, on the removal of the coffer-dam, and the other obstructions to the access to the property, could again enter into the enjoyment of his property as fully as before. If you are satisfied that the building was not so far repaired as to make it as useful for the plaintiff's purposes as it was before these injuries occurred, then the plaintiff will be entitled to recover such damages as would make it as useful for his purposes.'

The plaintiff asked the court to instruct the jury 'that even if the city be entitled to lay a coffer-dam along across the river, they had no right to lay it in front of the company's lot and dock, and for any damages which it may have suffered by the coffer-dam being in front of its dock it is entitled to recover in this action;' but the court refused; the presiding judge stating, 'I refuse the instruction, always assuming that the proof shows that the coffer-dam was a necessity. I look upon the river just as I do the street. The city had the same right to go into the river and construct a coffer-dam, in order to complete this work, that it had to go into a street and put down a track or any other work necessary in order to carry on improvements.' To which the plaintiff duly excepted.

The court, on motion of the defendant, further charged the jury, 'If you are satisfied from the evidence that the sinking or rather the cracking of the wall was due to the weight of the walls upon the selvage or portion of the earth which was left, and not to the removal of the material taken out of the street, that is, from the pit, then the defendant would not be liable. If you are satisfied that if the wall had not stood upon the plaintiff's lot at the place where it did, there would have been no change in the level of the ground there, but that the change in the level which caused the deflection of the wall was caused by the weight of the wall resting upon the earth after the excavation was made, then the defendant is not liable. The principle is precisely like two adjacent owners, one man building a building and sinking his foundation four feet into the ground, the adjoining owner may think it is necessary for him to set his six or ten feet into the ground, and he excavates for that purpose. Now, if the first wall built, by reason of its own weight, causes the earth to crush or cave away after the excavation below there has been made upon the adjoining lot, the owner of the adjoining lot making the deeper excavation is not liable. Each man, in other words, must look out for his own foundation.' To all of which the plaintiff excepted.

There was a verdict for the defendant. Judgment was rendered thereon, and the company sued out this writ of error.

Mr. R. P. Spalding for the plaintiff in error.

Mr. Joseph F. Bonfield, contra.

MR. JUSTICE STRONG delivered the opinion of the court.