author: Me. Justice Linscott

text:
    (Nos. 2105 to 2138, inclusive, and No. 2174
    Chicago Title & Trust Company, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Murphy & Anderson and Barr & Barr, for claimants.'
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

The above claims, numbering 35 in all, arise out of the same general transaction and have been consolidated, by agreement of counsel, in order to facilitate their orderly presentation and consideration. The claimants seek to recover total damages of $157,000.00' against the respondent, the State of Illinois, for damages sustained to real estate and business, by reason of the construction by the State of Illinois, through its proper department, of an overpass on Ogden Avenue, on S. B. I. Rt. No. 18 across what is now S. B. I. Rt. No. 53, and by reason of the change in grade of what is known as the Old Joliet Road through Lisle, in the County of DuPage. This involves damages to property not taken or condemned. This highway improvement project was commenced December 31, 1931 and completed December 1, 1932.

In Claim No. 2174, some additional drainage damage is sought, which it is alleged arises from a change in grade on the old Joliet Road near the intersection of Ogden Avenue, when it was paved in the year 1932. All of the property involved fronts and abuts on Ogden Avenue, which is also known as S. B- I. No. 18.

The damage to all of the properties and business was occasioned by the construction of the over-pass or viaduct mentioned, with the exception that the damage to one piece of property was occasioned as aforesaid.

Route No. 18 has for a number of years been a State Highway in the system of hard roads constructed by the State of Illinois, and runs from the City of Chicago in a generally western direction to the city of Princeton. It is a principal arterial highway and is much used. Prior to the construction of the improvement involved in this ease, it was improved with a hard surfaced slab 20 feet in width, and at Lisle was on the same grade as the abutting property.

During the construction of this improvement, which lasted approximately one year, the State constructed along Route No. 18 a long, high and wide overhead pass, whereby it crossed Lincoln Avenue, and which had then been designated by the State as Route No. 53, with long and gradual approaches thereto. This viaduct or overhead pass was constructed with a height at the intersection of Route No. 53 of 18% feet, and descended with a 4% grade in an easterly and westerly direction, going east approximately 507 feet from this intersection, and going west approximately 623 feet from this intersection.

The properties involved in this case all abut on this overhead pass or viaduct, in whole or in part, with the exception of Lot 6 in Block 45, in Arthur T. McIntosh & Company’s Lisle Development No. 4, and Lots 1, 2 and 3 in the same subdivision. These latter lots, together with Lot 4, are all owned by the same individuals, and are used as one unit.

At the time of the building of the overhead pass or viaduct, the paved portion of Route No. 18 was widened to 40 feet for the purpose of providing access to and from Route No. 53, which extends easterly and westerly under the central part of the overhead pass or viaduct. To provide some access to the properties involved on account of Ogden Avenue or Route No. 18, a concrete slab 20 feet in width was laid on the north and south sides of the overhead pass or viaduct, with the exception at the east end of the viaduct on the north side there is no slab or any access to the same from the east on the north side. The distance from the north and south lines of the overhead pass or viaduct to the property lines is approximately 27 feet. For about the east 180 feet, the distance is some 6 or 8 feet. The pavement along the sides of the viaduct, which is also known as a ramp, goes within 2 feet of the viaduct and leaves only about 5 feet both on the north and south between the property line and the line of the pavement, leaving insufficient room for a sidewalk or ornamental trees.

The old Joliet road, which extends northerly and southerly approximately 162 feet east of the east end of the viaduct or overhead pass, was improved by the construction thereon of a concrete slab 20 feet in width, in the Fall of 1932. Prior thereto, the Joliet road was on the same grade as the abutting property. In the making of the improvement, for a distance of about 200 feet, the grade was raised 4 or 5 feet above the grade of the abutting property.

It is claimed by the claimants that the building of the viaduct or overhead pass has had the effect of almost destroying the value of the abutting properties.

It is also claimed that the raising of the grade on the old Joliet road has so interfered with the drainage on the property involved as to require the expenditure of a large amount of money to correct the same and to fill in the property to the level of the road; and destroyed a large amount of peonies, as is hereinafter set out.

Prior to 1926, the territory surrounding Lisle was mostly farm land. At that time there were only some 15 houses and a few stores located there. In 1928, Arthur T. McIntosh and Company laid out subdivisions at the site of Lisle. Streets were graded; water, gas and electricity were put in in substantially all of the property in the subdivisions. It was contended at the time the evidence was taken that 95% of all the lots in that subdivision had been sold.

Lisle is located about 30 miles from Chicago, about 3% or 4 miles west of Naperville, and there has been much building from Chicago to Naperville. Lisle is also served by the Chicago & Burlington Railroad, which at the time of the hearing operated 12 or 14 trains daily to and from Chicago.

G-enerally speaking, the purchasers of these lots were working people in the factories on the west and southwest sides of Chicago. The character of the buildings ranged from modest 2, 3 and 4-room garage type homes to better 5, 6 and 7-room modern homes, including modern improvements.

In the laying out of the subdivisions at Lisle, a building line restriction of 40 feet was placed on all the properties with the exception of those fronting on Joliet Road, Ogden Avenue and Railroad Avenue. The properties sold along Ogden Avenue were all sold and purchased as present or future business properties, and a number of business establishments prior to the building of the overhead pass or viaduct had been commenced and were operating.

During the planning and laying out of the subdivision, no one knew or had any reason to know anything about the overhead pass being constructed, and when it was learned the State proposed it, an effort was made by some of the owners, or at least one owner, to induce the State to construct this overhead pass at another location, but without any success.

Prior to the laying out of the subdivision now known as Lisle, much of this territory west of Chicago and between Lisle and west of Lisle, had been developed for home and business purposes, and there were a number of small communities, cities and villages in that general territory. It is also served by a bus line in addition to the railroad, with four trips daily. It is shown that Downers Grove is 4 miles east and increased in population in the last ten years from 4,500 to 12,000. Glen Ellyn is 5 miles north of Lisle on Route 53 and Roosevelt Road, and it has very materially increased its population in the past ten years. The same is true of Wheaton, Western Springs, Westmont and other communities.

In addition to the owners of the respective properties, the claimants called seven witnesses, all men of vast experience in the development of real estate in these communities and the value thereof, and the State called three witnesses, all men of equal or similar experiences, and in each instance there was a vast divergence of opinion as to damages done. The claimants’ expert witnesses, with the exception as to the Haumesser property, fix the damages at from $52,237.00 to $77,-655.00, while the State’s witnesses fix the same damages from $24,700.00 to $29,682.00. The claimants’ witnesses as to the Haumesser property fixed the damages to his property affected by the viaduct at $9,465.00, while the State’s witnesses fixed the same, varying from $2,000.00 to $3,170.00.

The evidence was quite thoroughly presented from both sides. Photographs and plats are in the record, which clearly show the situation, and the court viewed the property involved. Needless to say, the court has had much difficulty in arriving at damages that would be fair to the owners and the State in each instance. Generally speaking, the facts are not in dispute except as to values. The issue in these claims is principally whether the properties involved have been actually damaged by the improvement and the extent of such damage.

Section 13, Article II, Constitution of 1870, provides that private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.

No effort was made by the State to settle damages before the making of the improvements in question.

The Court of Claims has made awards to property owners for direct physical injury and damage to real estate incurred by reason of hard road construction of State Bond Issue road system.

Schoenholz vs. State, 6 C. C. R. 123;

Rudd vs. State, 6 C. C. R. 132;

Soland, et al. vs. State, 6 C. C. R. 147;

Hoffman vs. State, 6 C. C. R. 154;

Niestadt et al. vs. State, 6 C. C. R. 476;

Kennedy vs. State, 6 C. C. R. 522;

Edwards et al. vs. State, 6 C. C. R. 530;

Kramer vs. State, 6 C. C. R. 531;

Dhermy vs. State, 6 C. C. R. 531.

And this court as now constituted, also awarded damages arising from the change of grade in streets which have been improved by State highways. (See the case of Gtienbard G-olf Club, Inc. No. 1997 against the State of Illinois, and the other cases consolidated with that one, recently decided by this court).

This court takes the view that the injury or damages to property not taken in the construction of these improvements, for which compensation is to be made, must be a direct physical injury or a disturbance of a right which the owner enjoys in connection with the property, and causing damage in excess of that sustained by the public generally.

The Supreme Court of this State has in numerous instances held that any change in the grade of a street, by which ingress or egress from the private property of an owner is obstructed, amounts to damaging the property for public use within the meaning of Article II, Section 13, of the Constitution of 1870, providing that private property shall not be taken or damaged for public use without just compensation, and this court has construed the measure of damages in these cases to be the difference in value before and after the improvement.

We will consider each case by title and number.

In Re: No. 2105 — Chicago Title & Trust Company, as Trustee, vs. State of Illinois — Lot 6 in Block 48, Development Unit No. 4:

This lot is unimproved; faces north on Ogden Avenue, the east line of which is approximately 60 feet west of the east end of the viaduct or overhead pass, and fronts approximately 60 feet on Ogden Avenue and Route 18 and is 200 feet deep along Garfield Avenue. Some of the claimant’s witnesses place the value of this property before the improvement at $3,885.00, and after the improvement at $350.00, or a damage of $3,535.00. Other witnesses for the claimant place the damage at $2,690.00, $1,650.00, $2,200.00 and $2,200.00. The witnesses for the State fix the damage at $1,000.00. After consideration of all the evidence, and after viewing the premises, we are of the opinion that the sum of $1,400.00 would be a reasonable sum as damage in this case, and we recommend an award in the sum of $1,400.00:

In Re: No. 2106 — Sarah Casey and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 5 in Block 48 of Unit No. 4:

This lot was sold June 15, 1928, for the sum of $2,850.00. It fronts on Ogden Avenue or Route 18, the east line of the same being approximately 10 feet west of the east line of the east approach of the overhead pass. Its frontage is 50 feet and it is 36 feet wide at the rear and is about 94 feet deep, and unimproved. The witness for the claimant has placed the value of this lot before the, improvement at $1,995.00, and immediately after the improvement at $200.00, or a damage of $1,795.00. Other witnesses for claimant fix the damage at $1,050.00, $2,240.00 and $1,650.00. The witnesses for the respondent fix the damage at $600.00. After consideration of all the evidence, and a view of-the premises, we fix the damage at $900.00, and recommend an award in the sum of $900.00.

In Re: No. 2107 — George Kostopoulas and Sylvia Kostopoulas and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lots 1, 2, 3 and 4 in Block 48, Unit 4:

These lots front north approximately 200 feet on Ogden Avenue, or Route 18, and Lot No. 1 approximately 108 feet on Joliet Road, and are all approximately 100 feet deep. The evidence shows a bnilding was erected, and the cost of material for said building was $4,500.00. The owners of the lot furnished the labor themselves, such as interior finish, ceilings and partitions. The improvements consist of a one-story frame building 36x58, the front part being used as a lunchroom and barbecue stand, which is 17x36. The rear of the building was formerly used as a dance hall and is now used as a dining room and is 40x36 in size. There is also a gasoline filling station on the property with a gravel driveway. There is a small building in the rear which is 10x10, and six pumps and three tanks on the property, and the building was erected in 1927. At the time this improvement was made, the property was on the grade with Ogden Avenue or Route 18, which was then improved with a 20-foot slab of concrete. The claimants state that prior to this improvement, they did a much larger business than they do now. Claimants’ witnesses fix the value of this property before the improvement at figures from $19,-600.00 and afterwards at $7,500.00, or a damage of $12,000.00. Other of claimants’ witnesses fix the damage at $4,813.00, $11,600.00 and $8,000.00. State witnesses fix the damage to this property after the improvement as low as $300.00 and others at $1,000.00, and we are of the opinion that a fair amount of damages sustained in this instance would be $2,500.00, and we, therefore, recommend an award in this case of the sum of $2,500.00.

In Re: No. 2108 — Melvin F. Jones and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 6 in Block 47, Unit No. 4:

The owner purchased this lot in 1927 and paid $3,950.00 therefor. The lot faces north on Ogden Avenue just about the center of the viaduct, and is approximately 50 feet wide and 200 feet deep, and is on the corner of the new Joliet Road or Route 53. It is vacant and unimproved. Damage in this case is fixed by the claimants ’ witnesses at various sums as in other cases. Some fix the damage at $2,365.00, one at $1,750.00, one at $2,690.00 and one at $2,150.00. Respondent’s witnesses fix the damage at $750.00. After a careful consideration of the testimony, plats and pictures of the property, and our own view of the premises, we are of the opinion that the damage in this case should he $1,250.00, and, therefore, we recommend an award in this case of the sum of $1,250.00.'

In Re: No. 2109 — Joseph Cerny and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 5 in Block 47, in Unit No. 4:

This lot fronts on Ogden Avenue, north, and is 50 feet wide and 200 feet deep, and is approximately 50 feet east of the center of the overhead pass. The owner claims to have paid $2,300.00 for it in 1929 and claims he purchased the same for business purposes. Witnesses for claimant fix the damage in this ease at $1,435.00, $1,250.00, $1,750.00 and $1,500.00. Respondent’s witnesses fix the damage at $625.00 and after viewing the premises and giving full consideration to the testimony, we are of the opinion that in this case the damages should be $900.00, and, therefore, we recommend an award in the sum of $900.00 in this case.

In Re: No. 2110 — Esther Freeman and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 4 in Block 47, Unit No. 4:

This lot faces north on Ogden Avenue and is 50 feet wide and 200 feet deep, and is improved with a 5-room, one-story frame house. The west line of the lot is located about 100 feet east of the center of the viaduct, and originally cost the owner $2,000.00. The evidence shows that the improvement cost $2,000.00, and the owner claims that after this overhead pass was built, she did not get any renters for anything like an adequate consideration. At the time of her testimony she was getting $10.00 a month. Unquestionably, general conditions have affected this rental value considerably. Claimant’s witnesses fix the damage in this case at $1,790.00, $1,550.00 and $1,900.00. Witnesses for the State fix the damage, one at $1,225.00 and the other at $1,400.00. After viewing the premises and considering the evidence, we are of the opinion that in this case the damages should be fixed at $1,400.00, and we therefore recommend an award in the sum of $1,400.00 in this case.

In Re: No. 2111 — Reginald L. Hamilton and Chicago Title and Trust Company, vs. State of Illinois, Lot 3 in Block 47, Unit No. 4:

This lot faces north on Ogden Avenue with a frontage of 50 feet, and is approximately 200 feet deep. Its west line is approximately 150 feet east of the center of the viaduct. It is improved with a one and a half story frame building 20x44 feet. Some of claimant’s witnesses fix the damages in this case as high as $2,300.00, and the lot was entirely paid for, the property having cost $6,300.00. Respondent’s witnesses fix the damage at $1,625.00 and $1,400.00 respectively. After viewing the property and considering the evidence, both documentary and oral, we are of the opinion that an award in the sum of $1,600.00 would be fair and reasonable, and therefore we are recommending an award in the sum of $1,600.00 in this case.

In Re: No. 2112 — M. J. Ruseckas vs. State of Illinois, Lot 2 in Block 47, Unit No. 4:

The property in this case fronts north on Ogden Avenue, and is 50 feet wide and 200 feet deep. Claimant’s witnesses fix the damage in this case at $1,575.00, $1,875.00, $1,100.00 and $1,500.00, while witnesses for the State fix the damage at $625.00 and $800.00. After looking at the premises and considering all the evidence, we are of the opinion that damages of $800.00 should be awarded in this case, and we, therefore, recommend an award of $800.00 in this case.

In Re: No. 2113 — Joseph Sitarski and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 1 in Block 47, Unit No. 4:

This property is on the corner of Ogden and G-arfield Avenues and fronts north on Ogden, is approximately 50 feet wide and 200 feet deep, and its east line is about 180 feet west of the east end of the viaduct, and is unimproved. Witness Elmore for the claimant fixed the damage here at $2,965.00. Witness Miller for the claimant fixed the damage at $1,650.00. Witness Matter for the claimant fixed the damag*e at $3,975.00 and witness Chalberg fixed the damage at $2,900.00. The State’s witnesses, Farnsworth and Crist, place the damage to the property at $1,125.00 and witness Adams, for the State, fixed the damage at $920.00. After viewing the premises and considering all of the evidence, we are of the opinion in this case that the snm of $1,400.00 would be a fair and reasonable value, and we recommend an award in the sum of $1,400.00 in this case.

In Re: No. 2114 — Antonie Sevcik vs. State of Illinois, Lot 6 in Block 46, Unit No. 4:

This property fronts north on Ogden Avenue, and is approximately 250 feet west of the center of the viaduct, and is 50 feet wide and 200 feet deep, along McKinley Avenue. Claimant is a widow and her witnesses fixed the damage to this property at $1,725.00, $1,200.00, $2,050.00, $1,450.00, and the State’s witnesses, two of them, fix the damage at $625.00 and one at $800.00. After a view of the premises, and consideration of all the evidence, we are of the opinion that the sum of $900.00 would be a reasonable award in this case, and, therefore, recommend an award in the sum of $900.00 in this case.

In Re: No. 2115 — Charles A. Sevcik vs. State of Illinois, Lot 5 in Block 46, Unit No. 4:

This lot fronts 50 feet on Ogden Avenue and is 200 feet deep, and the east line of said lot is about 200 feet west of the center of the viaduct. It is vacant and unimproved. His mother was Antonie Sevcik mentioned above. Witnesses for claimant fix the damages at $1,040.00, $1,000.00, $1,075.00 and $1,300.00. Respondent’s witnesses fix a damage of $500.00 and $675.00. From a consideration of all of the testimony, and after viewing the premises, we are of the opinion that these premises have been damaged to the extent of $750.00, and we recommend an award in the sum of $750.00 in this case.

In Re: No. 2116 — Gaetano Siciliano vs. State of Illinois, Lot 4 in Block 46, Unit No. 4:

This property fronts on Ogden Avenue and is unimproved. Its east line is about 150 feet west of the center of the viaduct. The property was bought for business purposes. Claimant’s witness Elmore places the damage at $1,110.00. Witness Miller and two members of the DnPage County Beal Estate Committee place the amount of damage at $935.00. Claimant’s witness, Matter, placed the damages at $1,200.00, and claimant’s witness, Chalberg, fixed the damage in the sum of $1,000.00. Two of the State’s witnesses fixed the damage at $500.00 and one at $675.00. Prom a consideration of all of the evidence in this case, and after viewing the premises, we are of the opinion that an award in the sum of $750.00 is fair and reasonable, and we recommend an award in the sum of $750.00 in this case.

In Re: No. 2117 — Maud Farms and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 3 in Block 46, Unit No. 4:

This property fronts 50 feet north on Ogden Avenue and is 200 feet deep. The premises are unimproved. The damage in this case as testified to by the witnesses for the claimant is $1,180.00, $935.00, $1,250.00 and $1,200.00. Two witnesses for the State fix the damages in the sum of $500.00, while one witness places it at $625.00. After a view of the premises, and in consideration of all of the evidence in this case, we are of the opinion that the sum of $750.00 would be a fair and reasonable amount, and we therefore recommend an award in the sum of $750.00 in this case.

In Re: No. 2118 — Frank Pelka vs. State of Illinois, Lot 2 in Block 46, Unit No. 4:

This property fronts 50 feet north on Ogden Avenue and is 200 feet deep, and is unimproved. The owner paid the sum of $2,000.00 cash for this lot on August 4, 1926. Claimant’s witnesses claim damage to this property by reason of the construction of this improvement in the sum of $1,250.00, $1,325.00 and $1,300.00. Two witnesses for the State fix the damage at $500.00 and one at $800.00. This court is of the opinion that the damage to the property in this case sustained by the owner is the sum of $900.00, and we recommend an award in this case of the sum of $900.00.

In Re: No. 2119 — Louis Zagata vs. State of Illinois, Lot 1 in Block 48, Unit No. 4:

The property in question is on the corner of Ogden Avenue and Route 53, approximately 50 feet wide and 200 feet deep, fronting on Ogden Avenue. The property was purchased on October 15, 1926, for $3,950.00, and is unimproved. The purchase price, however, of these premises is. not considered by the court as competent evidence, but is merely mentioned here to show what was considered as values on the date of the purchase and not at the time of the construction of the improvement. He paid cash for the premises. The damages in this instance are fixed by claimant’s witnesses as follows: Elmore, $2,365.00; Miller, $1,750.00; Matter, $2,690.00; Chalberg, $2,150.00; and for the State, by the witnesses Farnsworth and Crist, at $750.00 and by witness Adams, the amount of $750.00. We are of the opinion that in this instance the damage sustained by the owner is the sum of $1,250.00, and we recommend an award in this case in the amount of $1,250.00.

In Re: No. 2120 — Michele Dicintio and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 6 in Block 45, Unit No. 4:

The property in question is on the corner of Dumoulin Avenue and Ogden Avenue, fronting 50 feet on Ogden Avenue and 200 feet on Dumoulin. The east end of the lot is at the end of the west aproach to the bridge. It is vacant and unimproved. On July 1, 1926, claimant agreed to pay $1,650.00 for same. Claimant’s witness Elmore fixed the damages to this lot in the sum of $655.00; witness Miller in the sum of $950.00; witness Matter in the sum of $700.00, and witness Chalberg the sum of $1,000.00, sustained by this property on account of the improvement. The State’s witnesses fixed the damages at nothing, being the same value after the construction of the improvement as before. It is the opinion of this court that the amount of damages in this case is $500.00, and we are, therefore, recommending an award in this instance in the sum of $500.00.

In Re: No. 2121 — Roman Kieszkowski vs. State of Illinois, Lot 5, in Block 45, Unit No. 4:

The property in question fronts on Ogden Avenue. It is 50 feet wide and 200 feet deep. The west line of the lot is at the west end of the approach to the overhead pass. It was purchased July 26, 1926, for $1,250.00, and is unimproved. The claimant paid cash for the lot. Claimant’s witnesses place the damage to this lot on account of the improvement, one at $1,100.00, one at $625.00, one at $900.00, and two of respondent’s witnesses place the damage at $400.00 and one of respondent’s witnesses thought the property was worth as much after the. improvement as before. Considering our view of the property and all the evidence, we have the opinion that this property has been damaged to the extent of $600.00, and recommend an award in the sum of $600.00 in this case.

In Re: No. 2122 — Edward Vana and Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lots 3 and 4 in Block 45, Unit No. 4:

The lots in question are each 50 feet wide and 200 feet deep. The west line of lot 4 is 50 feet east of the west end of the bridge. The lots were purchased in August, 1926, for the sum of $2,500.00, and improved by a residence at a cost of $4,800.00. There is a balance due on the lots and building of $4,500.00. The house is a one-story and basement frame building with five rooms, also a frame garage 14x18. The property is landscaped. It also has a small building used as a chicken house and all fenced in. The house was built in 1929. Claimant’s witnesses fix the damage in this case at different sums. One witness testified the damage was $2,410.00. Another witness fixed the damage at $2,815.00, one at $2,425.00 and another at $3,750.00. Two of respondent’s witnesses fixed the damage at $1,825.00 and one at $1,250.00. We are of the opinion that the damages sustained in these premises are the sum of $2,300.00, and we recommend an award in this case in the sum of $2,300.00.

In Re: No. 2123 — Laddy Vasatko vs. State of Illinois, Lot 2 in Block 45, Unit No. 4:

This property fronts north on Ogden Avenue, is 50 feet wide and 200 feet deep. It was purchased August 20, 1926, for $1,450.00 cash. It is vacant and unimproved. One of claimant’s witnesses places the damage in this case at $865.00, another at $900.00, another at $1,100.00, and another at $900.00. Two of respondent’s witnesses fixed the damage at $500.00 and one at $630.00. Considering our view of the premises and all the facts in the case, we are of the opinion that this property has been damaged to the extent of $700.00, and we recommend an award in this case in the sum of $700.00.

In Re: No. 2124 — Chicago Title and Trust Company, as Trustee, vs. State of Illinois, Lot 1 in Block 45, Unit No. 4:

This property is at the corner of Ogden and McKinley Avenues, fronting 50 feet on Ogden Avenue and 200 feet on McKinley Avenue. The west line of the lot is approximately 200 feet east of the west end of the overhead pass, and the property is unimproved. One of claimant’s witnesses fixed the damage to these premises at $1,675.00, another at $1,200.00 and another at $2,050.00, and another at $1,450.00. The respondent’s witnesses fixed the damage to these premises, two at $625.00, and one at $800.00. After considering all of the facts in the case, we are of the opinion that the sum of $900.00 would be fair and reasonable damages sustained. We, therefore, recommend an award in the sum of $900.00 in this case.

In Re: No. 2125 — Leo J. Zitzman, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Foreman-State Trust & Savings Bank, vs. State of Illinois, Lot 24 in Block 19, Unit No. 1:

This property is located on the corner of Ogden Avenue and Boute 53. It faces south on Ogden Avenue 50 feet, and 170 feet on Boute 53. It is vacant and unimproved. It was sold on January 2, 1930, for $3,950.00. Boute 53 is the approximate center of the viaduct, and it was for the crossing of this highway that the overhead pass was built. One of claimant’s witnesses fixed the damages in this case at $2,415.00, another at $1,680.00, another at $2,900.00 and still another witness for claimant fixed the damages at $2,000.00. Two of respondent’s witnesses fixed the damages in this case at $750.00 and one at $700.00. We are of the opinion, after consideration of all of the facts before ns, that the reasonable damages sustained by this property are in the sum of $1,200.00 and we therefore recommend an award in this case in the sum of $1,200.00.

In Re: No. 2126 — Margaret Beazley, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Foreman-State Trust & Savings Bank, vs. State of Illinois, Lot 23 in Block 19, Unit No. 1:

This property fronts south on Ogden Avenue and its east line is 50 feet west of the center of the viaduct. It is vacant and unimproved. It was purchased July 9,1926, for $2,000.00, of which $1,500.00 has been paid by Mrs. Beazley. It was bought as commercial property. One' of claimant’s witnesses fixed the damage in this case at $1,275.00, another at $1,020.00, another at $1,475.00, another at $1,170.00. Two of respondent’s witnesses fixed the value of the damages to this lot at $450.00, and another one at $787.00. In view of all of the facts before us., we are of the opinion that these premises have sustained damages in the sum of $750.00, and we therefore recommend an award in the sum of $750.00.

In Re: No. 2127 — Patrick Creagh, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Foreman-State Trust & Savings Bank, vs. State of Illinois, Lots 21 and 22 in Block 19, Unit No. 1:

These lots are each 50 feet wide and 170 feet deep, fronting south on Ogden Avenue, the east line of Lot 22 being about 100 feet west of the center of the overhead pass. The lots were purchased- September 20,1926, for $3,700.00, and are unimproved. One of claimant’s witnesses fixed the damage here at $2,340.00, another at $1,670.00 and another at $2,725.00 and still another at $2,200.00. Witnesses for the State, two of them fixed the damage at $900.00, and one at $1,125.00. In view of all the facts and circumstances, we are of the opinion that the damage sustained on account of the improvement in this case is $1,250.00, and we therefore recommend an award in this case in the sum of $1,250.00.

In Re: No. 2128 — Frank W. Stach vs. State of Illinois, Lots 19 and 20 in Block 19, Unit No. 1:

This property fronts south on Og’den Avenue. The lots are each 50 feet wide and 170 feet deep and are unimproved. The lots were purchased about 9 years ago for $3,420.00. The east line of Lot 20 is about 200 feet west of the center of the overhead pass. One of claimant’s witnesses fixed the damage to these lots at $2,144.00, another at $1,670.00, another at $2,545.00, another at $2,200.00. Two witnesses for the State fixed damages at $900.00 and another at $1,125.00. After a careful consideration of all the facts before us, we have decided that the reasonable amount of damage sustained by these lots is in the amount of $1,250.00, and we therefore recommend an award in this case in the sum of $1,250.00.

In Re : No. 2129 — William D. Hurry, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Foreman-State Trust & Savings Bank, vs. State of Illinois, Lot 18 in Block 19, Unit No. 1:

This property fronts south on Ogden Avenue. Its west line is about 250 feet east of the west end of the viaduct. It is also 170 feet deep, and was purchased September 15, 1926, for $1,950.00. It is vacant, unoccupied and unimproved. One of claimant’s witnesses fixed the damage in this case at $1,225.00, another at $1,000.00, another at $1,410.00, and another at $1,320.00. Two of respondent’s witnesses fixed the damages at $450.00, and one at $540.00. After consideration of all of the facts in this case, we are of the opinion that the damages sustained in this case are in the sum of $750.00, and we therefore recommend an award in this case in the sum of $750.00.

In Re: No. 2130 — Sam Montori, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Foreman-State Trust & Savings Bank, vs. State of Illinois, Lot 17 in Block 19, Unit No. 1:

This lot fronts south on Ogden Avenue, and is 50 feet wide and 170 feet deep. The west line of the lot is about 200 feet east of the west end of the viaduct, and it was purchased February 25,193Í, for $1,200.00. It is vacant and unimproved. One of claimant’s witnesses fixed the damage in this case at $715.00, another at $835.00, another at $800.00 and another at $1,100.00. Two of the State’s witnesses fixed the damage to this property at $450.00, and one at $540.00. We are of the opinion that the damage sustained by these premises is the sum of $650.00, and we are, therefore, recommending an award in the sum of $650.00.

In Re: No. 2131 — Foreman-State Trust & Savings Bank, as Trustee and Charles Albers, Receiver of Forema-State Trust & Savings Bank, vs. State of Illinois, Lot 16 in Block 19, Unit No. 1:

This lot fronts 50 feet on Ogden Avenue, is on the north side of the highway and is 170 feet deep. It is vacant and unimproved. It was purchased in 1928 for the sum of $1,600.00. One of claimant’s witnesses fixed the damage in this case at $995.00, another at $835.00, one at $1,175.00, and another at $1,100.00. Two of the witnesses for the State fixed the amount of damages at $450.00 and one at $540.00. We are of the opinion from the evidence in this case that the reasonable value of damages sustained by the premises would be the sum of $650.00, and we therefore recommend an award in this case in the sum of $650.00.

In Re: No. 2132 — Fred J. Budovec, Administrator of the Estate of Anna Budovec, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Said Bank, vs. State of Illinois, Lot 15 in Block 19, Unit No. 1:

This lot fronts south on Ogden Avenue, is 50 feet wide and 170 feet deep, and was purchased August 4, 1926, for $1,600.00. It is vacant and unimproved. The west line is about 100 feet east of the west end of the overhead pass. It was paid for in cash. One of claimant’s witnesses fixed the damages here at $995.00, another at $835.00, another at $1,150.00, and another at $1,100.00. Two of the witnesses for the State fixed the damages at $450.00 and one in the sum of $540.00. After consideration of all of the facts and the circumstances before us, we are of the opinion that the damages sustained are in the sum of $650.00, and we are therefore recommending an award in this case in the sum of $650.00.

In Re: No. 2133 — Andrew Worzeken, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Said Bank, vs. State of Illinois, Lot 14 in Block 19, Unit No. 1:

This lot fronts south on Ogden Avenue and is 50 feet wide and 170 feet deep. The west line of the lot is a little over 50 feet east of th„e end of the viaduct. The lot was purchased October 4,1926, for $1,750.00. One of the claimant’s witnesses fixed the damage at $1,075.00, another at $835.00, another at $1,275.00 and another at $1,100.00. Two of the State’s witnesses fix the damages here at $450.00 and one at $540.00. After consideration of all the testimony in this case, we are of the opinion that the damages sustained are in the sum of $650.00, and we are, therefore, recommending an award for damages in this case in the sum of $650.00.

In Re: No. 2134 — John Hutter, Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Said Bank, vs. State of Illinois, Lots 12 and 13 in Block 19, Unit No. 1:

These lots are adjacent to each other and each fronts 50 feet south on Ogden Avenue, and is 170 feet deep. Lot 12 extends along Dumoulin Avenue, the east line of which is approximately 10 feet east of the west end of the viaduct. They were purchased August 30, 1926, for $4,200.00, and both are unimproved. Claimant owes a balance of $950.00 on the premises. One of claimant’s witnesses fixed the damages here at $2,290.00, another at $1,500.00, another at $3,150.00, and another at $1,900.00. All of the State’s witnesses testified that there were no damages to the property in question. However, after consideration of all the facts and circumstances in the case, we are of the opinion that the claimants actually suffered damages of $800.00 to these premises, and we are, therefore, recommending an award in the sum of $800.00 in this case.

In Re: No. 2135 — H. M. Chase and Northern Illinois Real Estate Improvement Corporation vs. State of Illinois, Lot 17, in Block 13, Unit No. 1:

This lot is on the north side of Ogden Avenue, and is about 61 feet wide and 170 feet deep, purchased January 15, 1929, for $2,600.00. This lot is located a little over 180 feet west of the east line of the viaduct with no access from the east owing to the fact, as hereinbefore stated, the roadway on the grade on the north side of the viaduct was never opened through. The premises are improved by a 20x64 combination store and residence quarters in the rear. The store is 20x32, and the living quarters consist of 6 rooms and bath. He is occupying these premises as a residence and grocery and meat market. The cost of the building was $3,800.00 and as we understand the record, the claimant is in debt for these premises in the sum of $5,700.00. A witness for the claimant testified the damages sustained by reason of this improvement was the sum of $3,070.00, another at $2,550.00, another at $3,230.00 and another at $4,150.00. Two of the State’s witnesses fixed the damages at $2,000.00 and a third State’s witness fixed the damages at $2,520.00. After consideration of all the facts and circumstances before us, we are of the opinion that the claimant has actually suffered damages in the sum of $2,400.00, and we are, therefore, recommending an award in this case in the sum of $2,400.00.

In Re: No. 2136 — Foreman-State Trust & Savings Bank, as Trustee, and Charles Albers, Receiver of Said Bank, vs. State of Illinois, Lot 16 in Block 13, Unit No. 1:

This property fronts south on Ogden Avenue and is immediately west of the Chase property. It is 50 feet in width and 170 feet deep, and is in the tier of lots that are dead-ended towards the east end of the viaduct. The property was purchased in 1928 for $2,400.00, and is unimproved. One of claimant’s witnesses fixed the damages to these premises-in the sum of $1,555.00, another at $1,000.00, another at $1,975.00 and another in the sum of $1,500.00. Two of the State’s witnesses fixed the damage at $500.00 and a third State’s witness fixed the damage at $900.00. After a careful consideration of all the facts and circumstances in this case, we are of the opinion that a reasonable amount of damages sustained would he the sum of $850.00, and we are, therefore, recommending-an award in this case in the sum of $850.00.

In Re: No. 2137 — Sam Dosick and Arthur T. McIntosh vs. State of Illinois, Lots 14 and 15 in Block 13, Unit No. 1:

This property is. unimproved, and the east line of Lot 14 is approximately 100 feet east of the center of the viaduct. The lots are each 50 feet in width and 170 feet deep. They were sold in 1926 for $3,800.00. One of claimant’s witnesses fixed the amount of damages to this property at $2,410.00, another at $2,060.00, another at $2,900.00 and another at $3,050.00. Two of the State’s witnesses fix the amount of damages in this case at $1,000.00 and a third State’s witness fixed the damage at $1,800.00. After a careful consideration of all of the facts before us, and after viewing the premises, we are of the opinion that these lots have sustained a damage in the sum of $1,750.00, and we are, therefore, recommending an award in this case in the sum of $1,750.00.

In Re: No. 2138 — Zygmunt Dobkowski and Filip Dobkowski vs. State of Illinois, Lot 13 in Block 13, Unit No. 1:

This property was purchased on April 4, 1929, for $3,950.00, all of which was paid. The lot fronts 50 feet on Ogden Avenue and is 170 feet deep, running along Boute 53, and is at the center of the viaduct. The premises are improved with a one-story frame building of 4 rooms for a residence. They also put in a gas station 14x16 feet with a canopy roof, concrete drive, and a roof above the concrete. They also made further improvements by a cesspool and toilet facilities. The cost of the improvement is claimed to be a little over $5,000.00. One of claimant’s witnesses testified that the damage in this case was in the sum of $2,960.00, another at $4,350.00, another at $3,500.00 and another at $3,200.00. Two of the State’s witnesses fixed the damage at $1,350.00 and one at $2,300.00. After viewing the premises and carefully considering all of the evidence in this case, we are of the opinion that the damages reasonably sustained by the claimants amount to $3,200.00, and we are, therefore, recommending an award in this case in the sum of $3,200.00.

In Re: No. 2174 — Frank A. Haumesser and Margaret Haumesser vs. State of Illinois :

There are two pieces of property involved in this claim. One is on the northwest corner at the intersection of Ogden Avenue and the old Joliet Boad, and is occupied as a residence by the claimants. They have lived there for many years, and it was acquired by descent from his parents. It contains approximately two acres, and fronts on Ogden Avenue and Joliet Boad. It is improved with a brick veneer house which is about six years old, with all modern conveniences, and consists of 7 rooms and basement. The house is approximately 30x40 feet in area and 2 stories high. There is a greenhouse on the property 33x19 with a small workhouse in the back of it, which is about 12x19. It is improved also with a brick garage which is 30x20 feet. The house cost approximately $15,000 to build, and the garage cost $750.00. The west 180 feet of this property at the northwest corner of Ogden Avenue and the Joliet Boad has been entirely cut off from access to Ogden Avenue by the construction of this overhead pass. It is only about 6 or 8 feet from the north wall of the overhead pass to the property line. The concrete slab or ramp that was built on the north of the viaduct starts at Boute 53 and dead-ends at the west end of the property herein mentioned. Prior to the building of the overhead pass, the premises were level with the surrounding land and were improved with a 20 foot slab of concrete for roadway purposes. There is also involved in the claim about 5 acres over by the Haumesser ’s on the southeast corner of Ogden Avenue and Joliet Boad. It is claimed in this instance that damages have been sustained by reason of the change in the drainage system, and that a half acre of peonies was destroyed, which was worth about $1,000.00. The claimants place a value of $40,000.00 on this property before the improvement, and $30,000.00 after the improvement. Two of the witnesses for the claimants testified that the damages sustained amounted to $9,465.00, and two of the witnesses for the State fixed the damages at $2,000.00. Another witness for the State fixed the damages at the sum of $3,170.00. After careful consideration of all the facts in the premises, we are of the opinion, after viewing the property, that claimants have sustained damages to the premises by reason of the construction of this improvement in the sum of $5,250.00, and we are, therefore, recommending an award in this case of $5,'250.00.


source: Caselaw Access Project

author: Mr. Chief Justice Hollerich

license: Public Domain

text:
    (No. 2547
    Cleveland, Cincinnati, Chicago & St. Louis Railway, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    George B. Gillespie and Bolla Babcook, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The claimant herein seeks to recover an award in the amount of $41.16 for storage charges on twenty drums of asphalt liquid shipped by Lincoln Oil Befining Oo. on May 28, 1933, from Wood Biver, Illinois to Illinois Division of Highways, care of S. F. Wilson, District Engineer, at Litchfield, Illinois.

It appears that the shipper did not notify the District Highway Office of the respondent, nor the highway patrolman of that district, of the fact of shipment, as it had been requested to do, and that as the result of such failure, the shipment in question was not secured by the consignee until after it had been in storage for a period of eight days.

Claimant originally submitted a storage bill in the amount of $5.88, which was paid. Thereafter and ■ on July 10, 1933, claimant notified the District Highway Office of the respondent that a mistake had been made in the bill for storage; that it had been ascertained that the shipment in question was inflammable material, and that therefore there was an additional charge of $41.16 for storage thereon.

It appears that the correct amount of the storage charge, in accordance with the legally filed tariffs, is $47.04. Bespondent having paid $5.88, there is a balance remaining dne in the amount of $41.16, and the Highway Department has recommended the payment thereof. The amount claimed is justly due and owing by the respondent to the claimant and should be paid.

Award is therefore hereby entered in favor of the claimant for the sum of Forty-one Dollars and Sixteen Cents ($41.16).


author: Mb. Justice Linscott

text:
    (No. 1932
    Joseph Crawford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    John A. Mathew, for claimant.
    Otto Kebneb., Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

Under date of December 29,1931, the claimant was working at a State hospital located at Manteno, Illinois, and had been employed continuously there since October 20, 1931. He had been employed at odd jobs and on the said 29th day of December, 1931, he was engaged in hauling brick-bats for the purpose of building hard roads on the grounds of the Manteno State Hospital, which roads connected the different buildings. On the day in question, he was driving a team and the brickbats were hauled some four or five miles. The team ran away; his left leg was broken in three places and his right leg was broken in two places. It is charged that his left side of his face became paralyzed, causing the loss of his left eye, and almost a total loss of the hearing of his left ear, and he claims total incapacity.

Claimant’s wife was also employed at the same hospital; and there were no children under sixteen years of age; that he was 61 years old at the time of the accident and received $55.00 per month and his board and room. The value of his board and room was fixed at $24.00 per month. He received one month’s pay after the injury and his hospital and doctor’s bills.

At the hospital, they have about twenty-two complete buildings. Some of the buildings have fire escapes and are heated from a central power plant, which contains, boilers, pumps, hot water heaters, and all necessary equipment for boiler plant; they also use electric motors. There is a deep well which furnishes all water for the institution, and is operated by a 75 horse power motor. They also operate a laundry at the institution. The washing machine is motor driven, and considering the nature of the work being done at the time the claimant received his injury and the nature of the plant, we are of the opinion that this employment comes under the Compensation Act, and we are further of the opinion that the injury arose out of and in the course of the employment.

At the time of the injury, claimant was driving a team hauling brick-bats and the team ran away.

Claimant was discharged from the hospital in April, 1932.

When he first went to the hospital he had blood poisoning in his leg and was in the hospital all told 15 weeks on account of the blood poisoning and the fracture sustained. He was treated by Dr. Colmar at Manteno and was then taken to the hospital at Kankakee and was seen there by doctors Madden, Hawthorne & Morrow. He had been employed in various State institutions about three years and had been employed as a hard road inspector in Massac County and was an auctioneer by occupation.

Dr. E. C. Wilson, a physician and surgeon testified that he found that claimant had some edema of the feet and legs, some inflammatory condition of his kidneys; high blood pressure ; a dilated heart; difficulty in breathing; a hernia; was a little hard of hearing at times; a tremor, — shakiness of his hands, — and X-ray pictures show a fracture of the left tibia at the ankle. The left tibia is the large bone that goes from the knee to the ankle. The X-rays also show a fracture of the first and third metatarsal bones of the right foot, and also a fracture of the left fibula, about the middle third — that is a small bone of the leg* — from the knee to the ankle. He obtained good results from the healing of the fractures. He has a dilated heart and what doctors call myocarditis, an inflammation of the heart and muscles, and this is a permanent condition. This causes his feet to swell. Claimant was also suffering from Parkinson’s disease, and prior to the time of his injur;', he was healthy and doing hard work, and his present condition developed since his injury. He was also suffering from a kidney ailment, brought about according to Dr. Wilson, from his heart condition. At the time that claimant sustained his injury, he had a skin abrasion and infection developed there.

Claimant had never suffered an injury before and testified that he had taken out life insurance about six months prior to that time in the Illinois Bankers Life Insurance Company, and received a thorough medical examination at that time.

The first question presented is whether from the setting in of infection, with nothing definite to show to what the infection is due or when or where it started, the injury could be considered as having been caused by an accident in the sense contemplated by the Workmen’s Compensation Act; whether the circumstances are such that the injury can be traced to a definite time, place and cause, as was held necessary in Matthiessen & Hegeler Zinc Co. vs. Industrial Board, 284 Ill. 378.

In the present case the claimant received definite injuries consisting of several fractures and an abrasion of the skin, but for the abrasion of the skin there would have been no means of access by the infectious germs to the blood. We are of the opinion that the particular work gave rise to the occasion or opportunity for exposure to the infection. There was no attempt in the record to trace the source of the germs, to show whether the actual infection took place at the time of the accident. The history of this case is one where the claimant had good health and did hard labor prior to the accident. It could be considered a reasonable inference that infectious germs are so prevalent as to justify the assumption that the infection took place at the time of the injury and the germs entered the skin through the abrasion shown by the evidence.

We are of the opinion that it is entirely possible for the infection to have resulted from the accident and the evidence supports this finding. This decision may be justified upon the ground that there had been a definite accident originally which reasonably could have caused the infection in or near the skin abrasion.

The earnings of the claimant were $948.00 per year, and the average weekly wage was $18.23 per week; the claimant at the time of the injury was 61 years of age and had no children under sixteen years of age, and we find that the claimant is wholly incapable of work. An award is, therefore, recommended.

If the appropriation is made by the Legislature, three years and six months will have elapsed before these payments are available on July 1, 1935. The total award he is entitled to is the sum of $3,792.00. One-half of his weekly wage of $18.23 per week is $9.12 per week. One-half of his weekly payments, therefore, have accumulated for three years and six months, or 182 weeks, since the time of the injury, but he was paid for one month, or $79.00, which leaves the amount accumulated as $1,580.84, and the balance should be paid to him weekly but because that it not practical with the Legislature meeting only every two years, we recommend a lump sum settlement and commute the said balance to an equivalent lump sum, which commutation shall be an amount which will equal the total sum of the probable future payments capitalized at their present value upon the basis of interest calculated at three per centum per annum with annual rests. This equals the sum of $1,997.67. This amount added to the sum of $1,580.84, which will be due as of July 1 of this year, makes a total of $3,578.51, which is the sum that we recommend that the Legislature appropriate to Joseph Crawford. The court continues the case on its own motion for such further orders as it may deem necessary under the Workmen’s Compensation Law.


author: Mr. Justice Linsoott

text:
    (No. 2311
    Betty Crowder, Executrix of Estate of Henry Cartwright, Dec’d, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    David J. Maddox, for claimant.
    Otto Keener, Attorney General, for respondent.
   Mr. Justice Linsoott

delivered the opinion of the court:

This is a claim for the Service Recognition of Henry Cartwright, for Illinois bonus based on Service. He filed his application during his lifetime on the 26th day of January, 1923, and this was approved by the Service Recognition Board, and an award in the amount of $187.50 was drawn and forwarded to him in October, 1923, but before receiving the same, applicant died.

The claim is Number 122,410 and several applications have been made to the Military and Naval Department of the State of Illinois, at Springfield, Illinois, but under the circumstances they could not act upon it because the necessary and proper papers had not been made out and signed showing who the heirs-at-law are. This cause shows the heirs at law to be:

Bettie Crowder, 5350 Indiana Ave., Chicago, Illinois;
Katie Whitson, 5350 Indiana Ave., Chicago, Illinois;
Carrie Nelson, 351 East 54th St., Chicago, Illinois;
Sam Cartwright, 219 Channing Ave., St. Louis, Missouri;
Lulu Jackson, 717 Decatur St., Memphis, Tennessee;
Annie Bess, 652 Adams St., Memphis, Tennessee;
Jime Cartwright, Box No. 35, Macon, Tennessee;
Anthony Cartwright, Box No. 35, Macon, Tennessee;
Isom Cartwright, 717 Decatur St., Memphis, Tennessee;
Walter Cartwright, 4752 Forestville Ave., Chicago, Illinois.

The amount of the claim was $187.50.

Henry Cartwright, the decedent, was a World War veteran. His application for Service Recognition bonus had been approved by the Service Recognition Board. He died in the National Soldiers Home, Milwaukee, Wisconsin, in November, 1923. This bonus was returned to the department.

He left a last will and testament, naming Mrs. Betty Crowder sole executrix, and leaving all his property, both personal and real, to five nephews and one niece.

As we construe the law, this should be equally divided among the next of kin of the deceased veteran.

We, therefore, recommend an award in the sum of $18.75 to each of the following named next of kin, to-wit: Bettie Crowder, Katie Whitson, Carrie. Nelson, Sam Cartwright, Lulu Jackson, Annie Bess, Jime Cartwright, Anthony Cartwright, Isom Cartwright and Walter Cartwright.


author: Mr. Justice Linscott

text:
    (No. 2180
    Dr. E. L. Damron and St. Anthony's Hospital or Erringham, Illinois, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    E. L. Damron, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered.the opinion of the court:

This is a joint claim filed by E. L. Damron, a physician and surgeon, and St. Anthony’s Hospital of Effingham, Illinois, arising out of professional services rendered to one Carl Little, an employee of the State. A part of the claim had been paid. The balance of the claim for medical and surgical services, $369.00, is due and owing to Dr. E. L. Damron, and the sum of $83.50 is due and owing to St. Anthony’s Hospital, Effingham, Illinois. Itemized statements of both accounts were duly made.

Carl Little was injured while unloading machinery from a State truck near Effingham, Illinois. He was rendered unconscious and removed to St. Anthony’s Hospital, Effingham. X-ray pictures were taken which showed a fracture involving the first and second lumbar vertebrae. He was unconscious for a period of about one hour, and upon regaining consciousness there was a complete paralysis of the lower extremities. There was a loss of kidney and bowel function which continued through a period of about thirty days. He was placed in a plaster cast and remained in the hospital until April 18, 1931. The physician then made resident calls, which would seem to have been necessary on account of loss of function of the kidneys and for observation of the injured spine.

Claim was filed May 25, 1933, no question arising in the record as to the necessity of the surgical care and the hospital care given Little, and the attorneys for Carl Little stated that no objections will be made to the payment of these bills.

Section 8 of the Workmen’s Compensation Act, in part, provides that the employer shall provide the necessary first aid, medical and surgical services and all necessary medical, surgical and hospital services. At the time Little received his injuries, they appeared to be very serious, and in fact were quite serious, and a representative of the State called Dr. Damron to look after the injured man, and the Attorney General has consented to payment of these bills.

An award, therefore, is made to E. L. Damron, physician and surgeon, for the sum of $369.00, and the St. Anthony’s Hospital of Effingham, Illinois, for the sum of $83.50.


author: Mb. Jtjstice Linscott

text:
    (No. 2386
    Howard Endres, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Miller & Shapiro, for claimant.
    Otto Kerner, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Jtjstice Linscott

delivered the opinion of the court:

Claimant was employed at the Kankakee State Hospital as a carpenter on a three day a week schedule at $8.40 per day, or $25.20 per week.

On September 22, 1933, while preparing some lumber strips for use in the hospital, the left hand and thumb of the claimant came in contact with the rip saw and three-quarters of the thumb of his left hand became severed, and the second finger of the same hand was badly injured, and it is alleged that he lost practically the permanent, complete use of the finger. The second finger had the flesh cut to the bone, and was so injured that it can’t be straightened out without help.

The case comes under the Workmen’s Compensation Act, and claimant was disabled from the date of the accident to December 1, 1933, during which time he returned to work. During that time there was paid him the sum of $205.80. He was treated by physicians at the Institution, and the only question to be determined is the amount of compensation for the permanent disability.

The thumb was amputated below the joint, and under the Compensation Act he is entitled to recover for a complete loss of the thumb, which is 50 per cent of the average weekly wage during 70 weeks.

The evidence shows he has lost the permanent complete loss of the use of the second or middle finger of his left hand. His testimony is that the rip saw cut the bone about 4 inches and severed the muscles on the top or the back of his hand at a point about % inch below the joint. He cannot open his finger. It is extended toward the inside of the hand at about a 45 degree angle, and it cannot be straightened without applying force to it. He has no control of the muscles in the finger except where the finger joins the hand. The evidence of the doctors shows an inability on the part of claimant to extend the phalange because of the injury, and it would seem he would have better use of the hand if this finger had been amputated at the middle joint. We feel that he has suffered the complete loss of the second finger.

Under the Statute, for the permanent and complete loss of the use of the second finger of his left hand, he would be entitled to fifty per cent of his average weekly wage during 35 weeks. He is, therefore, entitled for the loss of his second finger and thumb to 105 weeks at $12.60 per week, or the total sum of $1,323.00. He has been overpaid the sum of $83.40 by the State, and that sum should be deducted from the sum of $1,323.00.

We, therefore, make an award in favor of claimant for the sum of $1,239.60.


text:
    (No. 2390
    Lenora E. Finch, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Doyle, Sampson & Gtffin, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed June 1, 1934 and alleges that Gelon L. Finch, the husband of the claimant, was, on the 14th day of March, 1934, employed by the State of Illinois as a janitor in the engine room in the Power Plant owned, maintained and operated by the State of Illinois on Monroe Street in Springfield, Illinois, and while in the performance of his duties he was engaged in the maintenance of a structure and was engaged in an enterprise wherein machinery, appliances were placed, used and operated, and an enterprise on which statutory and municipal ordinance regulations were imposed for the regulating, guarding, placing and use of machinery or appliances, or for the protection and safeguarding of employees or the public therein.

It is further alleged that on the 14th day of March, 1934 at about ten o’clock A. M. the husband of the claimant was engaged in his usual, customary course of employment and was cleaning and washing certain walls in the engine room in the Plant aforesaid, and while so engaged, fell from a ladder upon which he was working, and as a direct and proximate result thereof on the said 14th day of March, 1934, sustained injuries from which he died on said date.

The claim further alleges that the deceased left him surviving his widow, whom he was under obligation to support, and who was wholly dependent upon him, and damages in the sum of Sixty-one Hundred Twenty-eight Dollars ($6,128.00) ■ were asked. No compensation was paid to the claimant and no salary received on behalf of the deceased since the date of injury, and the sum of Eight Dollars ($8.00) was paid for surgical attention by the claimant.

It appears from the evidence that on the date of the injury the State received notice thereof and the decedent was taken to St. John’s Hospital at Springfield, and he either died on the way to the hospital or immediately after arriving there.

The average annual earnings of the deceased at the time of the injury was the sum of Fifteen Hundred Thirty Dollars ($1,530.00) consisting of a yearly salary of Thirteen Hundred Fifty Dollars ($1,350.00) payable monthly, and a pension from the United States Government of Fifteen Dollars ($15.00) per month.

He left his widow but no children under sixteen years of age. No question arises as to notice and it appears that the decedent met his death while in the employment of the State and the cause of his death arose out of and in the course of his employment. He had fallen from a six foot ladder which he had supported from a place above the engine room switch-board. His injuries were serious and he was removed to St. John’s Hospital in an ambulance and a doctor called.

Louis Jetter, a fellow employee, went to the hospital in the ambulance. Finch died before medical attention could be given, of a skull fracture. John Hill was employed in the State Power Plant as engineer and was present when the accident occurred. Decedent was, at the time he received the injury from which he died, cleaning the tile walls of the engine room of the Power Plant and was using a step ladder from which he fell to the tile floor of the engine room. He struck upon his head and shoulders. Hill could not reach him in time to prevent the accident, but when he did reach him, the blood was gushing from his nose and mouth. They immediately called the Superintendent of the Power Plant and he called an ambulance and the deceased was removed to St. John’s Hospital.

This case comes clearly within the Compensation Act which Act provides that if the employee leaves him surviving any widow, child or children whom he is under obligation to support at the time of his injury, he should be paid a sum equal to four times the average annual earnings of the employee, but not less in any event than Twenty-five Hundred Dollars ($2,500.00), and not more in any event than Four Thousand Dollars ($4,000.00).

His annual earnings being Thirteen Hundred Fifty Dollars ($1,350.00), the claimant is entitled to compensation in the maximum amount provided by the Workmen’s Compensation Act or $4,000.00.

We cannot treat a pension granted by the United States as earnings under the Compensation Act or use it as a basis for figuring the amount due on a death claim for one reason at least, because the Compensation Act fixes the maximum amount as being four times the annual earnings, and considers the earnings as wages, and “earnings” in this case would not include a pension from the United States.

The widow of the deceased also paid a doctor’s bill amounting to $8.00.

The deceased was paid $1,350.00 annually or $25.98 per week. Under the Compensation Act, his widow is entitled to $4,000.00 plus the doctor’s bill, this to be paid weekly at the rate of $12.98. The deceased died on March 14, 1934. Assuming that the Legislature will make this appropriation, before any money can be paid to her, it will be at least July 1, 1935, or one year and 15 3/7 weeks will have elapsed. Therefore, by July 1, 1935, the accumulated payments will amount to 67 3/7 weeks at $12.98 per week, or $875.22.

Claimant has filed a petition for a lump sum settlement, and under the showing made, we believe that it will be to her advantage that a lump sum settlement be made.

The difference between the snm of $4,000.00 and $875.22, is the snm of $3,124.78. The value of the last mentioned sum as of July 1st of this year, figured according to the value of tables, amounts to $2,922.54. Adding together the $8.00 doctor bill, $875.22, the accumulated payments as of July 1, 1935, and the sum of $2,922.54, makes a total sum of $3,805.76.

We, therefore, recommend an award in the sum of $3,805.76.


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    (No. 2334
    Walter L. Frank, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Walter L. Frank, pro se.
    Otto Keener, Attorney General; John Kassbrman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

Walter L. Frank is a duly licensed physician and surgeon, and has specialized on the eye, ear, nose and throat. On February 9, 1933 he was called by Dr. F. B. Pollock, who was in charge of the Jacksonville State Hospital at Jacksonville, Illinois, to perform a mastoid operation on one Priscilla McCombs, an inmate of the Jacksonville State Hospital. He successfully performed this operation and charged therefor the sum of $75.00. No contest arises from the facts. Dr. C. St. Clair Drake, Managing Officer of the hospital, states that this bill is correct for the services performed.

From the evidence it appears that the services of Dr. Frank were requested by the proper State officer; that the operation was necessary, and the patient would probably have died without the operation. The evidence also shows that Dr. Frank’s efforts were successful.

We have heretofore held that “Where the evidence is uncontroverted that claimant rendered medical services at the request of the proper officer and the amount claimed is reasonable and undisputed, an award will be made on the recommendation of the proper authority.

Marquis vs. State, 7 C. C. R. 88;

St. Margaret’s Hospital of Spring Valley and Dr. Charles J. Green vs. State, 7 C. C. R. 222.

The Attorney General takes no exception.

We, therefore, make an award in favor of the claimant in the amount of $75.00.


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    (Nos. 1825, 1997, 2000, 2001, 2011, consolidated
    Glenbard Golf Club, Inc., Nos. 1825, 1997, Margaret Y. Newman, No. 2000, Robert A. Marsh, et al., No. 2001, Bridget Morris, No. 2011, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Hadley, Weaver & Woodward and Markman, Donovan & Sullivan, for claimant, Glenbard Golf Club, Inc., Charles W. Hadley and Thomas C. Donovan, of counsel, Childs, Bobb & Westcott, for other claimants.
    Otto Kerner, Attorney General; Carl Dietz, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This is a proceeding by the claimants to recover damages alleged to have been caused to the premises owned by them by the State of Illinois because of a change in the grade of State Routes No. 6 and No. 53. State Route No. 6 is also known as the Roosevelt, Road.

Roosevelt Road extends in an easterly and westerly direction from Geneva, Illinois to Chicago, Illinois, and passes along the boundary of the premises of the claimants, Glenbard Golf Club, Inc., Margaret T. Newman, Robert A. Marsh and Dagmar Marsh and Bridget Morris, in the outskirts of the village of Glen Ellyn, DuPage County. Prior to September 1, 1931, this portion of Roosevelt Road had been improved by the State of Illinois for two lanes of traffic, and on or about the date just mentioned, the State of Illinois changed the grade of this highway along and in front of a portion of the premises of the Glenbard Golf Club, Inc., and widened the highway by making four lanes of traffic rather than two. This is a durable, hard-surfaced road made of concrete.

The Glenbard Golf Club, Inc. purchased the premises consisting of one hundred twenty-nine (129) acres, sometime in 1930 for a total alleged price of Eighty-five Thousand Dollars ($85,000) or about Six Hundred Fifty Dollars ($650) per acre, and improved it as a golf course and expended almost an equal amount in improvements. The State of Illinois in making the improvements in September, 1931 changed the grade of the Roosevelt Road, and there is between the eastern and western boundaries of the gulf course, a hollow through which the Little DuPage River runs. When the Roosevelt Road was first improved there was some filling in in the lowest places and the grade was changed at that time and again in September of 1931 this second grade was changed.

The golf course lies on the south side of the road and it is claimed that for a distance of 1,090 feet along the Roosevelt Road, the golf course frontage was damaged by an elevation of the highway. At some places the grade was changed as much as 5.55 feet. This was down close to the Little DuPage River.

In changing the Roosevelt Road the State built a retaining wall along the southerly side of the road known as a rip rap wall. It is not a perpendicular wall hut is sloped so that it will stand by gravity with a fill behind it. This wall stands some little distance from the north property line.

On the northwesterly side of the golf course, the State constructed in the year of 1932, State Route No. 53, and this is sometimes referred to as Bryant Avenue within the village limits of Glen Ellyn. Route No. 53 was excavated to a depth of 18 feet at the northwest corner of the premises and was excavated on a gradual slope from that point to a point 470 feet south, where it again reached the grade of the surrounding lands and it is charged by changing the grades in these two roads, the owners of the golf course have been greatly damaged for the reason that they do not have the same ingress to and egress from said premises as they had at the time they purchased the golf course sometime in the year 1930. The owners of the golf course by reason of these changes in grades aforesaid, are claiming damages to the extent of $150,000.00.

It was stipulated that the Roosevelt Road and Route No. 53 intersect at a point within the southern boundary of the village of Glen Ellyn, Illinois, and that these two highways have been owned, operated and controlled by the State of Illinois, through its Division of Highways, Department of Public Works and Buildings, for the past several years, and that Route No. 53 at that time of the taking of the testimony was under construction, but when completed would be improved with concrete, and it was then contemplated by the Division of Highways to eventually complete an underpass on Route No. 53 where the same crosses Route No. 6 which required a lowering’ of the grade of Route No. 53 to effectuate that purpose.

From the south line of Route No. 6 there is a concrete retaining wall on either side of the excavation of Route No. 53 which has a height of 18 feet at the southerly limits of Roosevelt Road and extends south from that for a distance of 470 feet before it reaches grade, and it is 9 feet on either side from the retaining wall to the property line, and that on the north side of Roosevelt Road there is a wall on either side of Eoute No. 53 of the same height and extends from the north approximately the same distance and is of equal distance from the property line.

The Newman property, claim No. 2000, consisted of:

Lots 9 and 10 in Block 24 First Addition to Roosevelt Garden Home-sites, a subdivision of part of the West half of Section 13, Township 39, North, Range 10, East of the Third Principal Meridian,

and lies immediately east of said Eoute No. 53 and immediately north of the Roosevelt Road and was purchased in 1929. Margaret T. Newman claims damages in the sum of $20,000.00 by reason of the change of the grade.

Robert A. Marsh and Dagmar Marsh are the claimants in cause No. 2001 and claim to be lawfully possessed of:

Lots 20 and 21 in Block 19 in Roosevelt Garden Homesites, a Subdivision in the South East Quarter of Section 14, Township 39 North, Range 10 East of the 3rd Principal Meridian, as per plat recorded May 5, 1921, in Book 9 of Plats, Page 61, Document No. 148152, situated in the Village of Glen Ellyn, in DuPage County, Illinois.

The premises are immediately west of Eoute No. 53 and immediately north of the Eoosevelt Eoad extending north along Eoute No.' 53, 150 feet and west along Eoute No. 6, 100 feet, and claimants claim damages in the sum of $25,-000.00 by reason of the change of the grade.

Claim No. 2011 is the claim of Bridget Morris, who is the purchaser under a contract for deed of:

Lots 1, 2, 3 and 4 in Block 1 in Roosevelt Hills Addition to Glen Ellyn, Illinois, in Section 23, Township 39 North, Range 10, East of the Third Principal Meridian, situated in the Village of Glen Ellyn, DuPage County, Illinois.

These premises lie immediately west of and adjoining-said Eoute No. 53, and her premises extend 117 feet along-said Eoute No. 53 from the Eoosevelt Eoad. Claimant claims damages in the sum of $30,000.00 by reason of the change of the grade.

These cases have been well prepared at no small cost by exceedingly able and efficient counsel.

The Attorney General has made a motion to dismiss. The purpose was to raise the question as to the jurisdiction of the Court of Claims to hear and determine actions for damages to lands not talcen but damaged by reason of hard road construction. It has been held by this court that in the building and maintenance of highway and hard surfaced roads, the State is exercising a governmental function and acting in its sovereign capacity, and, therefore, there can be no liability.

This court has in other cases made awards under similar conditions. Section 13 of Article 2 of the Constitution provided as follows:

“Private property shall not be taken or damaged for public use, without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be, prescribed by law.”

We regard this provision of the Constitution as being the fundamental law of this State and outweighing in importance and principle the general rule that the State, in building and maintaining of highway and hard surfaced roads, is exercising a governmental function and acting in its sovereign capacity, and therefore not liable.

By reference to the constitutional debates it will be seen that this provision of the Constitution was given very serious consideration, and Section 26 of Article IY of the Constitution provides: ‘ ‘ The State of Illinois shall never be made defendant in any court of law or equity. ’ ’ During the discussions at the Constitutional Convention the question was asked: “If it was designed that the State may take private property without paying for it, or may take it without a jury any more than anybody else.” While the convention was of the opinion that the State should not be sued, reference to other parts of the constitutional debates were to the effect that the State could do no harm, the State being the people, and it would fairly recompense any citizen for damage to his property.

Under the Legislative Act creating this court, and under the Constitution, this court takes the position that it has jurisdiction to fairly determine what damage, if any, these claimants have suffered and the motion to dismiss is accordingly overruled.

The statute creating the Court of Claims makes the court the judges of the law and the facts. In other words, we are to determine what the law is and what the facts are. We are, therefore, to consider the facts in this case as nearly as possible the same as a jury at the trial of a common law case would consider them and apply the same rules of law as nearly as possible as the Supreme Court would apply them were the case before that branch of the government.

In examining the testimony of witnesses concerning damages suffered by the claimants, we think that they are greatly in error in fixing the amount of the damages that these claimants are entitled to. It does not appear that these witnesses have given much consideration, if any, to the depreciation in value that all real estate throughout the entire country has suffered during the last five years, and in fixing damages for property located at the intersection of two streets, each of which are alleged to have damaged the private property. This court will not treat them as separate cases and the owners be entitled to double damages for the reason that that would manifestly be improper.

It is not contended by either of the claimants that either improvements took any of their private property, but they are asking only consequential damages on account of the change in the grade.

Injury or damage to property not taken in the construction of an improvement for which compensation is to be made must be a direct physical injury or disturbance of a right which the owner enjoys in connection with the property and causing damage in excess of that sustained by the public generally, and it is improper to treat that portion of the property which may be injured as a distinct and separate tract from such portions as may be benefitted. If the inconvenience of the road to a certain selected part of the tract will be outweighed by the additional convenience of the road to the residue of the tract, the tract will not be damaged by the inconvenience of the road. A partial effect only is not to be considered, but the whole effect; or in other words, the damage to the whole tract can only be considered, and it has been held that this is not deducting benefits or advantages from damages, but is merely ascertaining whether there be damages or not.

The burden is upon the petitioner to show the fair cash market value of the property and alleged injury must be based upon lawful and proper elements of damage and not upon conjecture of speculation.

One of these claimants has put in proof showing loss of profits while the improvements upon both of these roads were under construction. The State had the right to change the grades of these roads, and there is no complaint that the action of the State was illegal or wrongful, that the work was unskillfully done or that there was any unreasonable delay in its execution. There was no physical taking of the claimants’ property, but it is claimed that there was a diminution of the value of their property.

It is well settled that inconvenience, expense or loss of business occasioned to abutting owners by the temporary obstruction of a public street, and the consequent interference with their right of access to their property, made necessary by the- construction of a public improvement, gives no cause of action against the municipality. The constitution provides no remedy for the property owner under such circumstances. Such claim is not damage to property not taken, within the meaning of the constitution.

Chicago Flour Co. vs. Chicago, 243 Ill. 268 and cases therein cited.

Much testimony that is incompetent was offered by claimants and apparently was given at a time before the improvement on Bryant Avenue was completed and was given with reference to conditions" existing at the time the witnesses testified, and it would seem that the witnesses had not considered their testimony with reference to a completed improvement. Depreciation of the value of property was apparently by one witness based upon the fact that the Village ordinance provided that a building at that particular location, that is at either one of these corners, all four corners being within the village limits of the village of Glen Ellyn be required to be set back fifty feet from the center of the road “however the Highway Department says they must be back one hundred feet from the middle of the road”. This same witness testified to values based upon trades of property in that vicinity and also as to hearsay testimony; as to business of an oil station some distance away. He had been informed that such oil station sold 10,000 gallons of gas per month at a profit of $0.04 per gallon and 200 gallons of oil at a profit of $.50 per gallon, making a gross profit of $500.00. By no stretch of the imagination could this be considered as proper evidence.

The main frontage of all this property of the claimants is on Roosevelt Road, and it is true that the evidence shows a marked depreciation in valuation and the court cannot overlook the fact that that same condition prevailed in regard to other property not touched by an improvement consisting of a forty foot concrete road which is entirely paid for by the State and to which the claimants have not contributed one cent directly and only an infinitesimal small sum indirectly. To say that all of this improvement has not been of a material benefit to the Glenbard Golf Club, Inc. would be such a gross mistake of fact as to be positively unfair to the taxpayers of Illinois.

Some of the values are based upon tables used by real estate men which tables were consulted by the witnesses in arriving at their conclusions as to values. Our attention has not been directed to any rules of law wherein such tables have been recognized by the courts as being competent in such cases, and we are of the opinion that there is no such rule of law for the reasons that the conditions determining values are too unstable and uncertain to even permit such a rule to be remotely helpful in such cases.

Under our view of the case, we will consider what damages have been done to the tract of 129 acres owned by the Glenbard Golf Club, Inc. It was stipulated that a traffic count was made of the east and west bound traffic on Roosevelt Road at the intersection of State Route No. 53 on October 1, 1932 and ending October 7, of the same year from six in the morning until six at night on each date; that 11,124 cars passed these corners going east and 12,614 were west bound. We cannot overlook the fact that beyond question this traffic was the result of a large expenditure of public funds in creating the improvement on Roosevelt Road, and we are at a loss to determine why this would not be beneficial to business property. The Golf Club Company purchased the 129 acres upon which the golf course is located in 1930. The property consists of 129 and a fraction acres, and the purchase price is alleged to have been $85,000.00, or approximately $650.00 per acre. The next year the golf company expended the sum of $70,000.00 on this property to make it a golf course, and this did not include the sum spent for the erection of the building on the northwest corner of the property.

In ascertaining compensation to the owner of property appropriated for public use, he is entitled to its value, for most profitable use for which it is available, but such availability does not refer to future possibility, but to present capacity which may be anticipated with reasonable certainty.

On principle, this rule would apply to the damaging of property which has not been taken and from the evidence, we are .of the opinion that the property owned by the golf company has its greatest value as a golf course. Only about two years elapsed from the time the property was bought for a golf course, and less than two years after the property was completed as a golf course to when the claim was filed in this court, and that was during a period of the greatest depression that this country has ever witnessed.

The respondent admits that as to the Newman, Marsh and Morris lots or tracts appreciable damage has resulted chiefly by reason of complete loss of direct ingress and egress from Bryant Avenue. These are small tracts consisting of from two to four lots with approximately equal frontage of about 100 feet on Roosevelt Road and possessing a depth of 116 to 150 feet. These lots are all portions of sub-divided property within the village of Glen Ellyn, located about one and one-half miles distant from the business section of the village. The Newman property, unimproved, is located in a subdivision known as the First Addition to Roosevelt Garden Home Sites, consisting of 285 lots. This subdivision has been open for a period of twelve years and only 8 lots are improved. The Marsh property, improved by a small frame building, forms a "part of a subdivision known as Roosevelt Garden Home Sites, consisting of 557 lots. This subdivision has also been open for a period of twelve years with only 8 lots improved. The Morris property is unimproved and forms a part of a subdivision known as Roosevelt Hills Addition consisting of 298 lots. This subdivision has been open for development for ten years but the record does not disclose that any of the lots are improved. Accordingly, it would seem that all of these subdivisions were of premature development. Combined they consist of 1,130 lots in three subdivisions and only 16 lots are improved, two of these being the Marsh lots. The State argues that when these facts are taken into consideration with the general economic conditions that have prevailed for several years last past, that the real estate experts called by the claimants have greatly overestimated the fair cash market values of these properties, and that the values fixed on these properties were no doubt based upon inflated values common in subdivisions generally until 1930, and we cannot ignore the State’s contention in this regard.

The contention is made by claimants in all of the claims that by reason of the bridge constructed on Roosevelt Road where the same crosses Bryant Avenue, traffic is prevented from driving upon the properties as easily as before, and it is contended that since all the tracts possess a frontage of 100 feet or more oh Roosevelt Road such damage or enconvenience is inconsequential.

From the evidence in this case, we are of the opinion, that the value of all of these tracts arise principally from the fact that they front on Roosevelt Road.

In considering the evidence pertaining to the value of the Newman property as of January 1, 1932, having a frontage of 108 feet on Roosevelt Road, at $100.00 per front foot or a total value of $10,800.00, and that after the improvement this property had a value of about $8,640.00, the difference being $2,160.00 or $20.00 per front foot, we are of the opinion that that represents the damage to this property.

The State’s witnesses put a value on the Marsh property as of January 1, 1932, prior to the improvement, which property consisted of 100 feet on Roosevelt Road, of the same relative value as the Newman property or $10,000.00, and that this property suffered the same proportionate loss from right of access owing to the lowering of the grade in Bryant Avenue, and that the damage to the fair cash market value of these two lots with a total frontage of 100 feet on Roosevelt Road attributable to the road improvement on Bryant Avenue was the sum of Two Thousand Dollars ($2,000.00). The value of the buildings upon the Marsh property is admitted to have been $1,500.00 prior to the improvement, and the evidence shows that the buildings were worth $1,000.00 after the improvement, the difference of $500.00 representing a reasonable estimate of the cost for moving these buildings back from the.front of the lots, and the State recommends an award to this property in the sum of $2,500.00.

In considering the Morris property, the evidence shows and it is admitted by the State that the fair cash market value of these four lots possessing a total frontage of 105 feet to be $100.00 per front foot or a total value of $10,500.00 as of January 1, 1932, unaffected by the improvement; that one year later it possessed a value of $9,450.00. The damage to these lots directly attributable to the road improvement therefore is $1,050.00. This property was not damaged as greatly as the Marsh and Newman properties by reason of the road improvement because of the fact that these lots are more shallow in depth and because of the existence of a 24 foot strip lying between the east line of the property and the concrete wall on Bryant Avenue.

Claimant’s witnesses in fixing the value of the golf club property based their estimate of ‘damage by arbitrarily taking out of the whole tract of 129.5 acres, two tracts, one of which has a corner frontage of 100 feet on Roosevelt Road with a depth of 150 feet along Bryant Avenue, and the other lying immediately to the south, having a frontage of 330 feet on Bryant Avenue and a depth of 100 feet. These tracts apparently have been considered by claimants’ witnesses as subdivided property although it does not appear that any part of this 129 acre tract has ever been subdivided. The claimants’ witnesses were of the. opinion that the highest and best use for this tract is for subdivision purposes and the State contends that its highest and best use was for golf club purposes, and that the estimate of damages should be based upon the damage which might have resulted to the tract as a whole. In this regard we agree that damages, if any, must be estimated to the whole tract. Some witnesses for the claimants estimated the fair cash market value of the golf tract as of January 1, 1932, prior to the improvement as $900.00 per acre, although only a short time prior to that time it appears that $650.00 per acre was paid for this property, and they also placed the value of this property as of January 1, 1933, after the improvement, as $876.84 per acre, or a total of $113,550.00, there being a difference of about $3,000.00 representing the damage to the golf club tract due to the road improvement on Bryant Avenue, and this would be ample to take care of the cost of constructing a service driveway upon the golf club grounds so as to secure direct access to Bryant Avenue, and it was admitted by all that a new 20 foot concrete pavement on Bryant Avenue, or what is known as Route No. 53, with the full frontage of the golf course on Route No. 53, which replaced a previous dirt and gravel road, was of direct benefit to the golf course.

Considering the testimony of all the witnesses and the personal inspection of all of this property by the court, and harmonizing this evidence as much as possible, we recommend that the sum of $11,000.00 be paid to Glenbard Golf Club, Inc., Claim No. 1997; the sum of $5,000.00 to Margaret Y. Newman; the sum of $7,000.00 to Robert A. and Dagmar Marsh; and the sum of $4,000.00 to Bridget Morris. An award will be denied in Claim No. 1825.


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    (No. 2003
    William Grady, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    A. M. Fitzgebald, H. C. Moobe and Gillespie, Bubke & Gillespie, for claimant.
    Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court r

William Grady, the claimant, 68 years old, has been in the employ of the State at its power plant as a fireman, at Springfield for 21 years. On May 20, 1932, he had been assigned to the duty of operating the coal and ash conveyor equipment, and in the performance of these duties, he noticed an irregularity of operation, and proceeded to the boiler room to give notice. The room where he was walking was not well lighted and he stepped into a boiler blow-off basin, the inspection cover of which had been removed by some other employees who were cleaning sediment from this basin.

The space underneath what appears to be a sewer, had been filled with boiling water that morning and the water was still very hot when Grady met with the accident.

He was taken to St. John’s Hospital and Dr. C. S. Mayes was called. Claimant had a third degree burn on one of his legs, that is, a burn which involves the tissues beneath the skin and the muscles. The burn extended from three inches below the knee down the entire leg, except the toes. Either the same day he was taken to the hospital or the next day, he expressed a desire to go home, and was taken there and was treated by Dr. Mayes, daily, sometimes several times a day, and sometimes it was necessary to treat him at night time in order to relieve his pain and suffering. The doctor testified that he was of the opinion that the burns received by claimant would have a permanent effect. A third degree burn, according to the doctor’s testimony, is of such nature as nearly always involves the circulation. The scar tissues in the process of healing will include a number of blood vessels, and will draw up the muscles in the heel, and make it shorter and interfere with the motion of the limb, and will cause a leg swelling because of poor circulation, due to the scar tissue flesh.

Dr. Mayes bill was $496.00 and Grady paid this.

Claimant first filed his claim in October, 1932. On January 8, 1934, and before the hearing, he filed an amended bill. Objection is made to this for the reason that it states another and different claim. We cannot agree with this. We hold that his claim was filed in apt time.

Dr. Mayes contends that claimant has been permanently injured and has suffered a 75% loss of the use of his right leg. There is also evidence in the record which shows that, his specific loss amounts to 25% of the use of the leg. From the evidence it appears that he walks around and gets around considerably, and we think that the evidence showed an approximate loss of 50% of the use of the leg.

From the time of the injury up until March 1, 1933, he was receiving $150.00 per month as his wages. On March 1, 1933, his wages were cut 10%, and thereafter, he received $135.00 per month. He was only entitled to compensation on the basis of $15.00 per week. There was therefore an overpayment of $557.65. He was also entitled to $496.00 on account of his doctor bills. There is evidence in the record to sustain a finding of 50% loss of the use of the right leg. Item 15 of Par. D of Section 8 of the Compensation Act provides compensation for the permanent complete loss of the use of a leg 50% of the average weekly wage during 190 weeks. There are other provisions of the Compensation Act, which in this instance fix the weekly wage at $15.00 per week. He, therefore, would be entitled to % of the sum fixed by Statute for the complete loss of the use of the leg. That would be the sum of $1,425.00. He has been overpaid the sum of $557.65, but he is entitled to the sum of $496.00 as his doctor bill. After deducting the overpayment and adding the doctor bills, we find he is entitled to an award in the sum of $1,363.35, and that sum is recommended.