author: Mr. Chief Justice Hollerich

text:
    (Nos. 2012, 2013, 2014, 2015, 2322, consolidated
    Edward Nance, Administrator of the Estate of Wesley Nance, Deceased, et al., No. 2012, Clyde E. Howe, No. 2013, Bert Nichols and William Nichols, No. 2014, Bert King, No. 2015, Stewardson Homestead and Loan Association, a Corporation, No. 2322, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Guy L. Smith and John W. Fribley, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

All of the above claims arise by reason of the construction by the respondent of S. B. I. Route 128 on Main Street in the Village of Cowden. All of such cases involve the same subject matter and all of the claimants are represented by the same counsel, and by agreement of all parties concerned, the cases have been consolidated for the purpose of this hearing.

The Village of Cowden is situated in Shelby County, and had a population of 600 by the last census. The main street of the village extends in a northerly and southerly direction, and is intersected at grade, in the center thereof, by the tracks of the Nickel Plate and the B. & O. Railroads, which also intersect each other at that point. The Nickel Plate Railroad extends in an easterly and westerly direction, and the B. & O. Railroad extends in a northwesterly and southeasterly direction. The tracks of said railroads, at the point of the intersection thereof, were originally on the same level as Main Street, but were elevated many times over a course of years, so that at the time of the construction of S. B. I. Route 128, said tracks at the point aforementioned, were approximately two (2) feet above the level of the surrounding ground. When S. B. I. Route 128 was constructed, a gradual grade was established on said Main Street to meet the intersection of said railroad tracks, which resulted in a gradual rise from a point 327 feet north of the center of the Nickel Plate track to the intersection, and a gradual descent from that point to the south for a distance of 330 feet.

The concrete slab on S. B. I. Route 128 is in the center of Main Street, and varies in width, being widened out as it approaches the intersection so as to provide a safety island in the center for railroad traffic signal devices. The property of the claimant Howe is situated south of the Nickel Plate Railroad, on the west side of Main Street. The property of the other claimants is situated north of the Nickel Plate Railroad, on the east side of Main Street.

As a result of the construction of such highway as aforesaid, the grade of Main Street was raised in front of the properties of the several claimants, such grade north of the Nickel Plate Railroad ranging from zero to one foot, nine inches. Concrete retaining walls were erected along the side of the highway in front of the properties of the respective claimants, such retaining walls on the east side of Main Street, north of the Nickel Plate Railroad, being approximately ten (10) inches or one (1) foot above the level of the present roadway. The shoulder on the roadway between the concrete slab and the retaining wall is level and is surfaced with crushed rock. Prior to the construction of S. B. I. Route 128, Main Street was an ordinary dirt road.

As is usual in cases of this kind, there was considerable discrepancy in the testimony of the various witnesses, and it will serve no useful purpose to set the same forth at length herein. We will therefore refer but briefly thereto.

No. 2012.

Edward Nance, Admr., et al.

Proceeding in a northerly direction from the Nickel Plate track, on the east side of Main Street, the first property on the right is the Nance property. The title to this property was in Wesley Nance at the time of his death. Wesley Nance -died on September 8, 1930, leaving him surviving Julia Nance, his widow; Nora Nicholas, Frances Sanford, Stuart Nance, Edward Nance, Agnes Lockard, and Gfussie Swallow, his children; Vera Fogel, Winnie Lance, Louis Nance, and Grace Frye, his grandchildren, being the children of Logan Nance, a deceased son of said Wesley Nance; and Catherine McDaniel and Edward George, his great-grandchildren, being the children of Yica George, a deceased granddaughter of said Wesley Nance; as his heirs.

This claim has been filed in the name of the administrator and heirs-at-law for the recovery of the damages which they claim their property has sustained by reason of interference with the access thereto as the result of the construction of the improvement in question.

This property has a frontage of eighteen (18) feet on the street. At the time the construction of the improvement commenced, such property was improved by a one-story frame business building which was in very poor condition and repair. and was thereafter destroyed by fire. Near the south property line there are three steps leading from the concrete sidewalk to the roadway.

The concrete retaining wall is two feet eight inches above the level of the sidewalk at the north property line, and two feet nine inches above the level of the sidewalk at the south property line.

No. 2015.

Bert King.

The next property north of the Nance property is that of Bert King, which property has a frontage of thirty and one-half (30%) feet on the street and is improved by two dilapidated frame structures, each being one-story in height, one having a frontage of eighteen and one-half (18%) feet and the other of twelve (12) feet.

The concrete retaining wall is two feet five inches above the level of the sidewalk at the north property line, and two feet eight inches above the level of the sidewalk at the south property line. -

Claimant contends that that his property has been depreciated in value as the result of the construction of the improvement in question by interference with the access thereto,, and also claims that he is entitled to damages which he has sustained by interference with his restaurant business during* the time the improvement was under construction.

No. 2322.

Stewardson Homestead and Loan Association.

The next property north of the King property is the Stewardson Homestead and Loan Association property which has a frontage of twenty (20) feet upon the street and is improved by a two-story brick building in poor condition and repair.

The concrete retaining wall is two feet above the level of the sidewalk at the north property line, and two feet five inches above the level of the sidewalk at the south property line.

Claimant contends that its property has been depreciated in value as the result of the construction of the improvement in question by reason of the interference with its right of access thereto.

No. 2014.

Bert Nichols and William Nichols.

The next property north of the Stewardson Homestead and Loan Association property is the property of Bert Nichols and William Nichols, and is improved by a two-story brick building in fair condition.

The concrete retaining wall is one foot one inch above the level of the sidewalk at the north property line, and two feet above the level of the sidewalk at the south property line.

Claimant contends that his property has been depreciated in value as the result of the construction of the improvement in question by interference with his right of access thereto.

No. 2013.

Clyde E. Howe.

This property is located on the west side of Main Street, just south of the Nickel Plate Railroad right-of-way, and has a frontage of 100 feet on Main Street. The grade of the railroad track is about two feet higher that claimant’s lot. The property is improved by a two-story frame building which is occupied as a hotel on the first floor and as living quarters by the owner on the second floor; also by a one-story tile moving picture theatre building just south of the hotel building. These buildings have a total frontage of 50 feet on the street and the remaining 50 feet of the property is vacant. This property was never rented for moving picture purposes, but was used by the owner for that purpose for a total period of approximately two years during the ten years since the building' was erected.

The concrete retaining wall along the west , side of Main Street commenced at the south railroad right-of-way line and extends in a southerly direction for a distance of approximately seventy-five feet.

The concrete sidewalk in front of the property slopes to the south, and as a result, the retaining wall, which is two feet eight inches above the level of the sidewalk at the north line of the buildings, is three feet five inches above the level of the sidewalk at the south line of such buildings, and then gradually descends to the level of the ground about twenty-five feet north of the south property line. •

Claimant contends that his property has been depreciated in value as the result of the construction of the improvement in question by reason of the interference with his right of access, and also claims that he has sustained damages as the result of the interference with his business during the time the improvement was under construction.

There is no evidence to the effect that there was any unreasonable delay in the construction of the improvement in question.

It has been repeatedly held by our Supreme Court that inconvenience, expense, or loss of business necessarily occasioned to the owners of abutting property during the progress of the work by the construction of a public improvement, do not constitute damage to property not taken, within the meaning of the Constitution, but merely a burden incidentally imposed upon private property adjacent to a public work, and without which such improvements can seldom be made, and therefore give no cause of action therefor. Osgood vs. City of Chicago, 154 Ill. 194; Lefkovits, vs. City of Chicago, 238 Ill. 23; Chicago Flour Co. vs. City of Chicago, 243 Ill. 218; Peck vs. Chicago Railways Co., 270 Ill. 35, 40.

The above rule has been applied by this court in a number of cases which have recently come before it. Grassle vs. State, No. 2339, decided at the June, 1934, term; Samuel Stein, et el. vs. State, No. 2373, decided at the November, 1934, term.

It is also the well settled law of this State that where a property owner’s right of access to his property has been destroyed or interfered with, he is entitled to compensation for the damages sustained. Rigney vs. City of Chicago, 102 Ill. 64; Barnard vs. City of Chicago, 270 Ill. 27; Lydy vs. City of Chicago, 356 Ill. 230.

The proper measure of damages where property is not taken but is damaged for public use, is the difference between the fair cash market value of the property prior to the construction of the improvement and unaffected by it, and its fair cash market value after the construction of the improvement and as affected by it. Dept. of Public Works vs. McBride, 338 Ill. 347; Dept. of Public Works vs. Caldwell, 301 Ill. 342; Brand vs. Union Elevated Co., 258 Ill. 133.

It must also be remembered that benefits to lands not taken may be set off against damages to land not taken, and that the damages to be allowed must be direct and proximate, and not such as are merely speculative and remotely contingent. Dept. of Public Works vs. McBride, 338 Ill. 347.

Depreciation in the market value of property will not sustain a claim of damages to land not taken unless such depreciation results from a cause which the law regards as a basis for damages. Illinois Power and Light Corporation vs. Talbott, 321 Ill. 538; Rockford Electric Co. vs. Browman, 339 Ill. 212.

The principles of law governing the proper measure of damages, and the elements which may be taken into consideration in determining such damages, were exhaustively considered by this court in the case of Albert J. Moore and Belle Moore vs. State, No. 1957, decided at the present term of court, and no good purpose will be accomplished by a repetition thereof in this case.

This court viewed the premises in question, and considering the evidence submitted, the view of the court, and the principles of law hereinbefore set forth, .as well as the principles enunciated in the aforementioned case of Albert J. Moore, et al. vs. State, No. 1957, we find that the property of each and all of the claimants herein has been depreciated in value as the result of the construction of the improvement in question by reason of interference with the property owners ’ right of access to the street.

We further find that the depreciation in value of each of said several properties, for which the owners are entitled to compensation, is as follows:

Edward Nance, Administrator of the Estate
of Wesley Nance, deceased, et al.........Claim No. 2012— $250.00
Clyde E. Howe............................Claim No. 2013— 850.00
Bert Nichols and William Nichols..........Claim No. 2014— 250.00
Bert King ................................Claim No. 2015— 400.00
Stewardson Homestead and Loan Association. Claim No. 2322— 300.00

It is Therefore Ordered that awards be and the same are hereby entered in favor of the several claimants herein in the following amounts, to-wit:

Edward Nance, Administrator of the Estate of Wesley Nance, deceased; Julia Nance; Nora Nicholas, Frances Sanford, Stuart Nance, Edward Nance; Agnes Lockard; Gussie Swallow; Vera Fogel, Winnie Lance, Louis Nonce, and Grace Frye; Catherine McDaniel and Edward George; Two Hundred Fifty Dollars ($250.00).
Clyde E. Howe, Eight Hundred Fifty Dollars ($850.00).
Bert Nichols and William Nichols, Two Hundred Fifty Dollars ($250.00).
Bert King, Four Hundred Dollars ($400.00).
Stewardson Homestead and Loan Association, Three Hundred Dollars ($300.00).


source: Caselaw Access Project

author: Mr. Justice Linscott

license: Public Domain

text:
    (No. 2427
    National Fireproofing Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    National Fireproofing Corporation, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim is for the sum of $538.04, and was for g*oods purchased for the use of the new Illinois State Penitentiary, at Stateville, Illinois. An itemized statement appears in the record. Claimant also asks the sum of $22.51 as interest because of deferred payment. The claim was filed July 6, 1934. The goods were received by the State with invoices that were not received within time to be paid out of the then biennium appropriation.

“Where the facts are undisputed that the State received supplies as ordered by it and that the bill was not presented for payment before the lapse of the appropriation out of which it could be paid, an award for the amount due will be made.”

Shell Petroleum Corp. vs. State, 7 C. C. R., 224.

The claim for interest, however, in the amount of $22.51 will be denied for the reason that mere delay of payment or the defense of a suit does not authorize interest to be allowed under Section 2 of our Interest Statute, providing for interest on money withheld by any unreasonable and vexatious delay of payment.

An award in the sum of $538.04 is hereby made in favor of claimant.


author: Mb. Justice Linscott

text:
    (No. 2563
    W. Q. O'Neall Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    W. Q. 0 We all Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

This claim was filed on December 31, 1934, for the sum of $41.19, and was for material purchased by Division of Highways, purchase order D-36550 and requisition MG-163. The department advises this is a just claim, and the goods were received.

We have heretofore held that where the facts were undisputed, that the State received supplies as ordered by it and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could be paid, an award for the amount due will be made.

The Attorney General states that this falls within that rule and he makes no objection to payment.

We, therefore, make an award in the sum of $41.19 for the claimant.


text:
    (No. 2304
    Peabody Coal Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    M. J. Cherry, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This is a claim filed by the Peabody Coal Company on December 20, 1933, and contains common counts and also a special count, and alleges that on the 9th day of March, 1932, after a bid regularly made, the State, through its Division of Purchases and Supplies, by purchase order D-27044, signed by A. W. Daily, State Purchasing Agent, a copy of which is attached to the declaration, ordered- shipped to the Kankakee State Hospital, Kankakee, Illinois, five thousand (5,000) tons No. 3 Nut or Chestnut coal at a price per ton of Three and 86/100 ($3.86) Dollars. This price was later reduced to Three and 81/100 ($3.81) Dollars per ton, delivered at the institution grounds; that thereafter shipments were made by the coal company as requested and required by.the Kankakee State Hospital up to and including the 6th day of April, 1933, and this constituted an overshipment of 1,276.75 tons more than the contract called for; that thereafter, the State paid the Peabody Coal Company for 427.5 tons of the overshipment leaving the State indebted to the Peabody Coal Company for $849.25 tons of coal, as shown by the statement contained in a Bill of Particulars which was filed with the case.

On the 26th day of August, 1933, the coal company presented its claim to J. J. Rice, Director of Department of Finance, who advised that the claim be taken up with the Managing Officer of the Kankakee State Hospital, Kankakee, Illinois; that on August 29,1933, this matter was taken up with A. W. Daily, State Purchasing Agent, who advised that this matter be presented to the Chief Clerk of the Kankakee State Hospital, a Mr. Kruger, who upon request was furnished an itemized statement of account showing car numbers, weights and amount due; that on the 27th day of September, 1933, Mr. Kruger, Chief Clerk of the Kankakee State Hospital, advised the Peabody Coal Company that previous thereto, on to-wit: the 5th day of May, 1933, he furnished requisition number 469 to Springfield; that upon receipt of that advice the matter was taken up with J. J. Rice, Director of Department of Finance, A. W. Daily, State Purchasing Agent, and A. L. Bowen, Director of Department of Public Welfare, and up to this date, claimant has not received payment of this claim for the reason, as it has been advised, that appropriations made by the General Assembly have been exhausted and no funds were available to pay said claim.

From the stipulation in the file, it appears that all the averments in the declaration are true. This stipulation was filed by the Peabody Coal Company and by the State Department of Public Welfare, by A. L. Bowen and the stipulation is approved as to form by the Attorney General. In the stipulation, it is admitted that there is due and owning the Peabody Coal Company the sum of Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars for 849.25 tons of Chestnut coal at Three and 81/100 ($3.81) Dollars per ton delivered to the Kankakee State Hospital.

It is further stipulated that the claim is a just one and should be allowed.

Some contention arose as to the payment of this claim because of an overshipment; that is, because more coal was shipped than was in the original contract of 5,000 tons, but it appears from the evidence that this coal was actually ordered by the proper department.

It appearing that the State did receive this coal; that proper officers knew that the claimant was shipping more than provided in the contract, and that they had requested shipment of this coal, and the State having received the use and benefit from the shipments, the claim should be allowed, and the Attorney General recognizes that fact and says that he makes no objection to an award being recommended by this court for the amount of the claim, namely: Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars.

An award, therefore, in favor of the Peabody Coal Company against the State of Illinois is hereby recommended for the sum of Three Thousand Two Hundred Thirty-five and 67/100 ($3,235.67) Dollars.


text:
    (No. 2335
    A. W. Potts, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Jonas & Branson, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

The claimant, A. W. Potts, was employed as a Guard at the Southern Illinois Penitentiary, and worked in what is known as the Convicts Barber Shop.

On February 7, 1933, while on duty, he had occasion to go through the main entrance door, the floor of which on the outside was sloping and covered with ice, and he fell. While on duty he is required to carry a “gas-billy”, which contained a gas shell which was subject to discharge from a jar when dropped, and in trying to prevent the discharge of this gas shell, his right arm was doubled under his body, re-suiting in a compound fracture at the end of- the radius bone and also a serious dislocation of the right wrist.

He was a licensed barber, and by reason of his injury, his right wrist and fingers are stiff. He was cared for by the prison physicians and drew his salary while he was unable to work, and then went back to work at what is known as the Visiting Table, his duty being to see that visitors did not give any forbidden articles at the penitentiary or violated any of the rules of the prison pertaining to visitors. He worked there until October 15th when he was returned to the barber shop, remaining there until February 9, 1934.

It appears from the testimony that the claimant suffered an injury which arose put of and in the course of his employment. He was later transferred to Pontiac and then again transferred to Joliet Penitentiary.

It is the evidence of the physicians that he has suffered a 35 per cent loss of his arm. Dr. Copple was of the opinion that he has suffered a 75 per cent total disability on account of his injury to his arm. Dr. E. Ralph May, Prison Physician, was of the opinion that his arm had suffered 100 per cent disability for barber work. Dr. A. F. Barnett was of the same opinion. Dr. O. J. Carlin, physician of the new prison hospital at Joliet, was of the opinion that his arm was disabled 35 per cent, and another physician was of the opinion that his arm had suffered a 75 per cent disability.

Unquestionably, the evidence pertaining to the 100 per cent disability had limited the use of the hand and arm for barber work.

After a careful consideration of all the evidence, we are of the opinion that he suffered a 50 per cent loss of the use of the hand. He is entitled to be paid $13.00 per week for 85 weeks according* to the statute, or the sum of $1,105.00.

We, therefore, recommend an award in the sum of $1,105.00.


text:
    (No. 2550
    J. A. Reece, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    J. A. Reece, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linscott

delivered the opinion of the court:

This claim was filed pro se December 7, 1934. Claimant states he was employed by the State as Superintendent of Quarries at the Southern Illinois Penitentiary, and that his employment required him to be subject to call at any hour of the 24 hours of the day.

It appears that on June 6, 1933 he suffered a fracture of the right fibula two inches above the ankle; that at that time the Southern Illinois Penitentiary did not have an X-ray machine. The Institution doctor was called to reduce the fracture, and he recommended an X-ray be taken. Claimant was conveyed to the office of Dr. B. E. G-ilster at Chester, where an X-ray was taken. An effort was made to reimburse the doctor. The facts are undisputed.

We, therefore, make an award in the sum of $10.00 in favor of claimant.


text:
    (No. 2502
    Reliable Packing Company, a Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Edward J. Warren, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

It appears that on or about February 27, 1933, in accordance with respondent’s Order D-51292, claimant sold to respondent, for the Kankakee State Hospital, Kankakee, Illinois, the goods set forth in the Bill of Particulars attached. It also appears that claimant has repeatedly demanded payment. The goods purchased by the State were for the use of the Kankakee State Hospital, and consisted of 1400 lbs. of frankfurters. An invoice was either mislaid or lost, but it appears from the report of Robert R. Smith, Managing Officer of that Institution, that the claim is a just one but was not received in time to pay out of the appropriation then at hand. This case follows a large number of cases that have come before this court, where we have held that “Where the facts are undisputed that the State has received supplies as ordered by it, and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could have been paid, an award for the amount due will be made.

We, therefore, make an award in the sum of $65.80 in favor of the claimant.


author: Me. Justice Linscott

text:
    (No. 2337
    The Scudder-Gale Grocery Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Claimant, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

This claim was filed March 3, 1934 for the sum of $44.28, and alleges that due to an error in bringing forth the amount of beer on hand as of October 1, 1933, the amount was shown as 3,210% gallons instead of the correct amount, of 752 gallons. Consequently, the claimant overpaid taxes on the same in the amount of $48.78. It appears that this amount was later audited by the Department of Finance, and the amount found due was $44.28. Claimant is no longer an importer of beer.

This court has held that “where it appears from undisputed facts that tax, in excess of amount due was made through mutual mistake of fact, and the Attorney General concedes that claimant is entitled to an award for such excess, an award will be made.”

Commercial Nat. Bank & Trust Co. vs. State, 7 C. C. R 122;

Bates Valve Bag Corp. vs. State, 7 C. C. R. 64;

Cairo Water Co. vs. State, 7 C. C. R. 6.

We, therefore, make an award and recommend payment of same in the sum of $44.28.


text:
    (No. 2254
    Shell Petroleum Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    W. W. Yeager, for claimant.
    Otto Keener, Attorney General; - John Kasserman, Assistant Attorney General, fpr respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This claim was filed October 23, 1933 for the sum of $60.52 for kerosene and gasoline sold to the Anna State Hospital.

It appears that there was a running account with this Institution. In the files there is a stipulation between counsel for both sides, and the amount due the claimant has been agreed upon, which is the sum of $60.52.

No objection being made on the part of the Attorney General, and it appearing to the court that this claim is just and equitable, and should be paid, we make an award for the amount due, which is the amount of $60.52.


text:
    (No. 2405
    Spellman & Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Spellman & Company, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Justice Linscott

delivered the opinion of the court:

This was a claim, filed by Spellman & Company for 28 squares of 2-ply roll roofing at $1.75 per square, furnished at the request of proper authorities of the Lincoln State School and Colony Farm at Lincoln, Illinois. This material was furnished January 23, 1933, and the entire bill amounts to the sum of $49.00. The bill was sent to the Institution and no action taken thereon.

In a report dated August 7, 1934, from John C. Weigel, Fiscal Supervisor, it is stated:

.“The original contractor that put up these buildings refused to make certain repairs in January, 1933, and to prevent water coming into the buildings, the institution ordered Spellman & Company to furnish 28 squares of two ply roll roofing at $1.75 per square, amounting to $49.00.
“The then Chief Clerk, Mr. Wertheim, apparently ‘lost’ this bill and the institution did not follow it up until the 57th biennial appropriation had lapsed.”

The facts are undisputed and the State Institution did receive the supplies ordered by it. The bill was not presented for payment before the lapse of the appropriation out„ of which it could have been paid. We have frequently held under such circumstances that an award should be made, and the Attorney General states he has no objection to the payment of this claim.

An award, therefore, in the sum of $49.00 is made in favor of the claimant.


text:
    (No. 2327
    Sutliff & Case Co., Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Gael Behrman, for claimant.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Me. Justice Linscott

delivered the opinion of the court:

Claimánt filed its claim with the Clerk of this Court on February 15, 1934 for the sum of $69.30, and alleges that on December 19, 1930, the State became indebted to it in the sum just mentioned, and claimant filed a Bill of Particulars showing goods purchased from it, and avers that it never paid for the same, and that the goods furnished were hospital supplies that were furnished to the Anna State Hospital.

No question arises as to the facts, and we have heretofore held that “where the facts are undisputed, that the State received supplies as ordered by it and that the bill therefor was not presented for payment before the lapse of the appropriation out of which it could be paid, an award for the amount due will be made.”

Shell Petroleum Co. vs. State, 7 C. C. R. 224.

Franklin County Coal Co. vs. State, 7 C. C. R. 114.

H. Channon Co. vs. State, 7 C. C. R. 97.

We, therefore, make an award in the sum of $69.30 in full payment of the above claim.


author: Mb. Justice Linsoott

text:
    (No. 2391
    T. C. Taylor, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    T. C. Taylor, pro se.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mb. Justice Linsoott

delivered the opinion of the court:

The claimant is Sheriff of Johnson County, Illinois, and during the month of March 1933, upon the order of the Circuit Court of that County, he conveyed Oneal Wood, Herbert Allen, Ray Beggs and Carlos Green to the Southern Illinois Penitentiary at Menard. He has never been paid for such services.

The claim was filed June 1, 1934 for the sum of $53.40. The claimant filed a claim with the Department of Public Welfare, but this claim has not been paid because the appropriation covering the 57th biennium lapsed September 30, 1933. In a report dated June 28, 1934 from A. L. Bowen, Director of the Department of Public Welfare, it is stated that the Department would have passed the voucher for payment had it been presented at the proper time, and no objection is made to the allowance of same. It is admitted that all of these prisoners were delivered to the Penitentiary at Menard.

Section 19 of the Fee and Salaries Act provides that its Sheriffs, for conveying prisoners to the Penitentiary or Reform School of any County, should be paid fees out of the State Treasury. Where only one convict is conveyed at and after the rate of twenty-five cents for each and every mile necessarily traveled in going to the penitentiary or reform school from the place of conviction. Where more than two are conveyed, he shall be allowed twenty-five cents per mile for the first, fifteen cents per mile for the second, and ten cents per mile for each of the others.

There is no question but that the claimant earned and was entitled to the fees for which claim was filed, and that same would have been paid if the bill therefor had been presented before the appropriation lapsed.

We, therefore, make an award in favor of the claimant in the sum of $53.40.


author: Mr. Chief Justice Holeerich

text:
    (Nos. 1934, 1935, consolidated
    George Treharne and Rosie Treharne, No. 1934, Russell Youngman and Laura M. Youngman, No. 1935, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Hbrget & Hoffman, for claimants.
    Chester H. Barnet, Corporation Counsel, for City of Peoria.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Holeerich

delivered the opinion of the court:

The above claims arise as the result -of the construction of the east approach to the Cedar Street Bridge on S. B. I. Route No. 121 in the City of East Peoria; — and by agreement of all parties interested, have been consolidated for the purpose of this hearing.

These cases, together with 28 similar cases, are known as “East Peoria Bridge Cases”, and inasmuch as all of such cases grow out of the same transaction and involve the same subject matter, the facts, so far as they apply generally to all of such cases are set forth herein, in order to avoid the repetition thereof in each of such cases.

The aforementioned Cedar Street Bridge crosses the Illinois River and connects the cities of Peoria and East Peoria. The construction of such bridge was originally undertaken by the City of Peoria, but when it was about two-thirds completed, the money appropriated for the purpose became exhausted, and no further construction work was done for several years.

Prior to the construction of the approach, no attempt was made to secure the consent of the claimants therefor, nor was any attempt made to agree with them as to the damages they would sustain by reason of the making of the contemplated improvement.

Thereafter the respondent, through the Division of Highways, undertook the completion of such bridge and the east approach thereto, pursuant to an agreement between the City of Peoria and the respondent.

In pursuance of such agreement, the City Council of the City of Peoria on the 15th day of September, 1931, adopted an ordinance authorizing and directing the Mayor of said City to make application to the United States Fidelity and Guaranty Company for a surety company bond in the sum of $30,000.00, to indemnify the State against all lawful claims which should be established in the Court of Claims by property owners along and in the vicinity of the Cedar Street Bridge; and also authorizing the Mayor, City Clerk and Comptroller to execute the bond in question on behalf of the City and deliver said bond, when executed by all parties thereto, to the Department of Public Works and Buildings of the State of Illinois. Such application was duly made, and the. bond was thereafter executed by the aforementioned officers of the City of Peoria and by the United States Fidelity and Guaranty Company, and delivered to the Department of Public Works and Buildings of the State of Illinois.

All of the property involved in the East Peoria Bridge cases is located in Richland Place Addition to the City of East Peoria, and lies just south of S. B. I. Route 121 as now constructed.

In traveling* east from the bridge on said S. B. I. Route, the first public highway to the right is Sanford Street which forms the western boundary of Richland Place Addition. Continuing in an easterly direction, the streets in said Addition which intersect S. B. I. Route No. 121 in their proper order are as follows:* Clark Street; Monson Street; Globe Street; and Franklin Street. Maple Street is an east and west street, 60 feet in width, which parallels S. B. I. Route No. 121, being* about 200 feet south thereof. Elm Street is an east and west street 15 feet in width which parallels Maple Street, being about 365 feet south thereof, and being the south boundary line of Richland Place. Lots numbered 533, 543 and 535, and part of Lots 536 to 543 inclusive, immediately adjoin the south right-of-way line of S. B. I. Route No. 121 and have a 15-foot alley at.the rear. All other lots in said Addition (except those parts of lots hereinafter referred to, which lie north of S. B. I. Route 121) front on the north and south streets. Lots 565 to 569, both inclusive, front on the east line of Sanford Street; Lots 570 to 574, both inclusive, front on the west line of Clark Street; Lots 575 to 579, both inclusive, front on the east line of Clark Street; Lots 580 to 584, both inclusive, front on the west line of Monson Street; Lots 585 to 589, both inclusive, front on the east line of Monson Street; Lots 590 to 594, both inclusive, front on the west line of Globe Street; Lots 595 to 599, both inclusive, front on the east line of Globe Street; — and all of such lots (except Lots 595 to 599 inclusive) have a 15-foot alley at the rear thereof.

Prior to the construction of the approach in question, Roosevelt Street extended in a westerly direction from Washington Street to and beyond Sanford Street, and formed the north boundary line of Lots 533 to 564. The right-of-way for such approach was procured by the City of Peoria, and the ■ approach itself, that is to say, S. B. I. Route No. 121, is just south of Roosevelt Street and extends over part of Lots 536 to 564 inclusive, to wit, over and across the north portion of Lots 536 to 540; over and across all of Lots 541, 542 and 543, except the south end thereof; over and across all of Lots 544 to 548 inclusive, except the north end thereof; over and across all of Lots 549 to 564, inclusive, except the north one-quarter thereof. A portion of Lots 544 to 564, inclusive, still remains between the south boundary line of Roosevelt Street and the north right-of-way line of S. B. I. Route 121. For all practical purposes Roosevelt Street has been abandoned for use as a highway as it is considerably lower than S. B. I. Route 121. As one of the witnesses for the Respondent stated, it exists only on paper. The western portion of S. B. I. Route 121, to wit, commencing at the western line of Monson Street and extending westward, curves to the north, and extends along and across Roosevelt Street to the bridge proper. S. B. I. Route 121 is approximately sixty feet in width at the top' of the fill; — the concrete roadway being forty feet in width. The base of the fill is approximately ninety feet in width, except at the east and west ends, where it is wider.

Claimants George Treharne and Rosie Treharne own Lot No. 534, and claimants Rnssell Youngman and Laura M. Youngman own the adjoining lot to the east, to wit, Lot No. 535. Each of such lots has a frontage of 33 feet on what is now S. B. I. Route No. 121, and what was formerly Roosevelt Street in the City of East Peoria, and each lot is 125 feet deep.

The grade or fill at the junction of S. B. I. Route No. 121 and Sanford Street is approximately 20 or 21 feet above the level of the ground there, and descends gradually to the East, being about 16 feet 2 inches high at the east line of the Treharne lot and 14 feet 5 inches high at the east line of the Youngman lot. The fill on S. B. I. Route 121 at the point where it intersects the west line of Clark Street is eleven feet four inches above the level of the ground; at the point where it intersects the west line of Monson Street is eight feet above the level of the ground; at the point where it intersects the west line of Globe Street is seven feet four inches above the level of the ground; and at the point where it intersects the east line of Franklin Street is six feet two inches above the level of the ground.

The grade on Sanford Street is to' the south and the elevation of the fill on such Street descends from twenty or twenty-one feet at the Y to nine feet at the south end of the Treharne lot, and reaches the ground level at the north line of Maple Street, a distance of approximately 340 feet from the junction.

The Treharne and Youngman lots are both located in the Y formed by the junction of S. B. I. Route 121 and Sanford Street.

The base of the fill on Route 121 is from twenty-seven and one-half feet to forty-one feet north of the north line of the Treharne lot, and from ten feet to thirty feet north of the north line of the Youngman lot. The Treharne and the Youngman houses are each twenty feet south of the north property line.

The Treharne property is improved by a one-story frame dwelling about fifteen feet in height, with stained shingle siding and rubberoid roof. The kitchen and dining room have modified lean-to roofs. The house has an area of 6,087 cubic feet, rests on a cement block foundation, is without basement, is equipped for electricity, but has no plumbing and no sewer or gas connection. The floors and trim are of pine, and the inside walls of plasterboard construction. There is an outdoor toilet and storm cellar, but no walks or curbs.

The dwelling now on the Youngman property is about fifteen feet in height, is similar in construction to the Trehame dwelling, but consists of two rooms with an area of 3,438 cubic feet; there is also an outdoor toilet, a shed and a well, but no walks or curbs, and no sewer or gas connection. The building which was on the property at the time of the construction of the approach was burned in the Spring of 1932, and the present building was constructed shortly thereafter.

The contract for the grading in connection with the construction of the approach was let November 20, 1931, work was commenced shortly thereafter, and the grading was completed June 23,1932. The entire improvement was completed and opened for traffic on January 6, 1933.

Complaints were filed in this court on June 24, 1932, claimants George Treharne and Rosie Treharne claiming the sum of $3,500.00, and claimants Russell Youngman and Laura M. Youngman claiming the sum of $2,000.00.

The records of the City Clerk of the City of Peoria show that claimants George Treharne and Rosie Treharne filed a claim with the City Clerk of that City claiming damages to their property in the amount of $3,000.00. No payment was made by the City of Peoria, but the City Attorney of the City recommended that they be paid $2,000.00 and retain title to the property, or that they be paid $2,200.00 and convey title to the City of Peoria. Claimants refused the recommendation of the City Attorney and no further action was taken on such claim. Subsequently said George Treharne and Rosie Treharne, in their stipulation filed herein, agreed to accept $2,000.00 in full of their damages.

The records of the city clerk of the city of Peoria show that claimants Russell Youngman and Laura M. Youngman filed a claim with the city clerk of the city claiming damage to their property in the amount of $2,700.00. No action was taken by the city of Peoria on such claim. Subsequently Russell Youngman and Laura M. Youngman in their stipuation filed in this cause, agreed to accept $900.00 in full of their damages.

It is not disputed that the embankments on S. B. I. Route 121 and on Sanford Street entirely block ingress to and egress from claimants’ lots except by means of the aforementioned alley at the rear of said lots. Claimants contend that said embankments also interfere with the circulation of air around said lots, deprive them of their natural light, and leave them without proper drainage.

Where private property is not taken, but is damaged for public use, the property owner is entitled to recover the damages which his property has sustained, and the proper measure of damages in such case is the difference between the fair cash market value of the property unaffected by the improvement and its fair cash market value as affected by it. Dept. of Public Works vs. McBride, 338 Ill. 347; Dept. of Public Works vs. Caldwell, 301 Ill. 242; Brand vs. Union Elevated Co., 258 Ill. 133.

In condemnation proceedings, the land is regarded as taken or damaged, as of the date of the filing of the petition, and the value of the land must be fixed as of that date. Public Service Co. vs. Leatherbee, 311 Ill. 505; City of Chicago vs. Collin, 302 Ill. 270; Chicago and State Line Ry. Co. vs. Mines, 221 Ill. 448.

Where, however, the taking or damaging does not arise by virtue of condemnation proceedings, the damage is determined by the difference between the fair cash market value of the property just prior to the time the making of the improvement commenced, and its fair cash market value just after the improvement is completed. Ross vs. City of Chicago, 91 Ill. App. 416.

The experts called by the respondent testified that as the result of the construction of the approach in question, the Treharne and Youngman properties have practically been destroyed from the standpoint of fair cash market value, but state that each property still possesses a small rental value.

The Attorney General suggests that inasmuch as the properties have practically been destroyed from the standpoint of fair cash market value, the respondent should request the claimants to execute and deliver to the Director of the Department of Public Works and Buildings of the State of Illinois proper deeds of dedication to their several lots. Claimants are unwilling to make such deeds of conveyance, and as we view the matter, we have no right to make the execution and delivery of such deeds a condition of an award.

J. H. Finnegan, an expert called by respondent, testified that the value of the Treharne lot as of November 1, 1931 was $1,500.00; that the value of the property was entirely wiped out by the construction of the embankment; that the damages to Treharne by reason of the construction of the embankment was $1,500.00.

Roy C. Montgomery, an expert called by respondent, testified that the value of the Treharne lot as of November 1, 1931 was $1,700.00; that as of January 1, 1933 the property had no value; that the damages to Treharne by reason of the construction of the improvement was $1,700.00.

Donald B. Walker, Assistant Highway Engineer, called by respondent testified that the value of the Treharne lot as of January 20, 1931 was $2,000.00; that the value of the property as of September 21, 1932, considered as if the embankment had not been built, was $1,500.00, on account of declining market value. The value on September 21, 1932, however, is immaterial, as the proper measure of damages is the difference between the fair cash market value of the property just before the making of the improvement commenced, to-wit, about November 1, 1931, and its fair cash market value just after the improvement was completed, to-wit, about January 1, 1933. Ross vs. City of Chicago, 91 Ill. App. 416.

Mr. Finnegan and Mr. Montgomery also testified on behalf of the respondent relative to the Youngman property, and both fixed the damages at $1,150.00. However, Young-mans, by their stipulation, agreed to accept $900.00 in full settlement of their damages, and consequently they are limited in their claim to such amount.

Upon consideration of all of the evidence in the record, we find that the claimants, George Treharne and Rosie Treharne, have sustained damages in the amount of $1,700.00 as the result of the construction of the improvement in question; and the claimants Russell Youngman and Laura M. Youngman have sustained damages in the amount of $900.00 as the result of the construction of such improvement.

An award is therefore entered in favor of the claimants George Treharne and Rosie Treharne, for the sum of Seventeen Hundred Dollars ($1,700.00); and

An award is also entered in favor of the claimants, Russell Youngman and Laura M. Youngman, for the sum of Nine Hundred Dollars ($900.00).


author: Mb. Chief Justice Hollerich

text:
    (No. 2257
    Tri-City Railway Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Thos. P. Sinnett and J. Hays Britton, for claimant.
    Otto Keener, Attorney General; John Kasseeman, Assistant Attorney General, for respondent.
   Mb. Chief Justice Hollerich

delivered the opinion of the court:

Claimant filed its complaint herein on November 1, 1933, and seeks to recover the sum of $1,737.50 which it claims to have paid as a franchise tax for the year beginning July 1, 1933 and ending June 30,1934, in excess of the amount which it was legally required to pay under the terms and provisions of The General Corporation Act of 1919, as amended.

It appears that on February 27, 1933 the claimant, in accordance with the law then in force, filed its annual report with the Secretary of State, in which it stated that the issued capital stock of the Company was $3,495,000.00. Based upon such statement, the amount of the franchise tax due from the claimant under the then existing law was $1,747.50. Notice of the amount of such tax was forwarded by the Secretary of State to claimant under date of May 15, 1933, and was received by it on June 15, 1933. Shortly thereafter claimant issued its check, payable to the Secretary of State, for "the sum of $1,747.50 in full payment of the “tax as so assessed. Such check was received by the Secretary of State on June 22, 1933, and subsequently cashed.

On June 16, 1933 a meeting of the stockholders of claimant corporation was held, and a resolution adopted decreasing the amount of the issued capital stock from 34,950 shares of the par value of $100.00 each, to 100 shares of the par value of $100.00 each; — such decrease being effected in the following manner, to-wit: — by the surrender of the 34,950 issued shares of capital stock, by the holders thereof, and the issue to them in lieu thereof of 100 shares of the par value of $100.00 each, so that each holder received 10/3495ths of a share of stock for each share previously held; and by the creation of a capital surplus of $3,485,000.00.

Pursuant to such resolution claimant made application in regular form to the Secretary of State for a reduction of its capital stock, and on June 29, 1933 the Secretary of State issued his certificate under the seal of the State, setting forth that the claimant had legally decreased its stock as set forth in the aforementioned resolution.

On the same date the Secretary of State also issued and subsequently mailed to the claimant a corrected statement showing a franchise tax due and owing from claimant in the amount of $10.00 on all of its issued capitalization of $10,-000.00. Sometime during the early part of July, 1933 claimant received this corrected statement and on July 20, 1933 issued its check in payment therefor. Thereafter and on the 22nd day of July, 1933, the Secretary of State wrote claimant in part as follows:

"As it would appear that above company paid franchise tax under date of June 22, I am returning check for $10.00.”

Thereafter some correspondence was had between the claimant and its attorneys on the one hand, and the Secretary of State on the other, relative to the matter, and on August 1, 1933 the Secretary of State advised the attorneys for the claimant in part as follows:

“The practice has obtained in this office where a decrease is made on or before June 30 that the company is assessed on the new capital stock for the year following.
“Since, however, these fees were paid before the companies decreased their capital stock and have been turned into the State treasury it would appear that the only way they could be recovered at this time would be by filing a bill in the Court of Clailns.”

The legal principles involved in this case are fully set forth and discussed in the case of Moline-Roch Island Mfg. Co. vs. State, No. 2256, in which case the facts are almost identical with the present case, and the law as there laid down applies with equal force to this case.

In that case we held that the ‘claimant was entitled to an award for the amount of the franchise tax overpaid by it; and for the reasons there set forth we hold that the claimant in this case is entitled to an award for the amount so overpaid by it.

Award is therefore entered in favor of the claimant for the sum of Seventeen Hundred Thirty-seven Dollars and Fifty Cents ($1,737.50).


text:
    (2415
    Russell Ulery, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Frank R. Eagleton, 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 21, 1934 for $129.55 to cover doctor bills incurred by reason of an accident received on October 7, 1932 while claimant was employed by the Division of Highways, his duties being to drill test cores from concrete pavement by means of a power drill. It appears from the evidence that the services were rendered by the doctor and same were to have been paid for. He does not seek to recover compensation, but asks that his medical bills be paid.

Paragraph (a) of Section 8 of the Workmen’s Compensation Act provides that the employer shall provide the necessary first aid medical and surgical services and all necessary medical and hospital services thereafter. In a letter from Ernest Lieberman, Chief Highway Engineer, it is, among other things, stated:

“From personal knowledge of this case and from my observation of Mr. Ulery’s condition, I feel that the claim is a just one and that the amount of $129.55, which represents the doctor’s bill, should not be contested.”

This being a claim which the Statute contemplates should be paid by the employer, we order the sum of $129.55 to be paid to claimant for the payment of his doctor bills.


author: Per Curiam:

text:
    (Nos. 1915 to 1930, both inclusive, and Nos. 2276, 2277, consolidated
    Mamie Umdenstook, Nos. 1915, 1930; Edwin Jones and Dorothy P. Jones, Nos. 1916, 1924; Norman W. Gebhardt, Nos. 1917, 1929; Anna B. Skinner, No. 1918; William M. Harris, Nos. 1919, 1926; Mike Couri, Nos. 1920, 1925; L. V. Taylor and Emma Taylor, No. 1921; Henry E. Hanshaw and Stella Hanshaw, No. 1922; Feed Denny and Frances Denney, No. 1923; Elmer Kinsinger, No. 1927; Bessie Ball, No. 1928; Ed. Pollitt, No. 2277; Dallas R. Sweeney and Grace E. Sweeney, No. 2276, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Potts & Allison and Walter G. Cunningham, for claimants.
    Otto Kerner, Attorney. General; John Kasserman, Assistant Attorney General, for respondent.
   Per Curiam:

All of the above claims, as well as certain other claims now pending in this court, arise by reason of the construction by the respondent of the approach to the Cedar Street Bridge in the city of East Peoria, all of which cases are known as East Peoria Bridge cases.

All of the claimants herein are represented by the same counsel, and inasmuch as all of the cases grew out of the same transaction and involve the same questions, it has been agreed by counsel for the respective parties, that the cases be consolidated for the purpose of this hearing.

The facts as to local conditions at and during the time involved in these cases, as well as the facts which apply generally to all of such cases, have been fully set forth in the consolidated cases of George Treharne and Rosie Treharne vs. State of Illinois, No. 1934, and Russell Youngman and Laura H. Youngman vs. State of Illinois, No. 1935, and in the consolidated cases of Albert J. Moore et al. vs. The State of Illinois, Nos. 1957 to 1964, and No. 1974, to which reference is made therefor.

The facts which apply particularly to the several cases under consideration herein, to-wit, the facts as to the location of the several properties and the character of the improvements thereon, if any, are as follows, to-wit:

No. 1915.

Mamie Umdenstook.

Claimant is the owner of Lot No. 571 which is located on the west side of Clark Street, between S. B. I. Route 121 and Maple Street, being approximately one hundred five (105) feet south of said S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; — and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is two hundred seventy (270) feet east of the Sanford Street fill.

This lot is improved by a one-story five-room frame dwelling with concrete block foundation and no basement. The building is equipped for electricity and gas, but has no furnace, no bath, no plumbing fixtures, no cesspool and no sewer connections.

The exterior side walls are of stained shingle, and the building has a shingle roof. The floors and trim are of pine and the interior walls are of plaster. There is a small one-car garage, together with a shed and toilet, at the rear of the lot.

The fill on the Clark Street approach to S. B. I. Route 121 commences at or near the north line of claimant’s lot. The surface of the lot is level with the adjoining street and there is no direct interference with ingress or egress over said street as the result of the construction of the improvement in question.

No. 1916.

Edwin Jones and Dorothy P. Jones.

Claimants are the owners of Lot No. 585 which is located on the east side, of Monson Street, between S. B. I. Route 121 and Maple Street, being approximately fifteen (15) feet south of said S. B. I. Route 121, and one hundred sixty (160) feet north of Maple Street. The north boundary of such lot immediately adjoins the east and west alley which is just south of and parallel with S. B. I. Route 121 at that point. The lot has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is six hundred sixty (660) feet east of the Sanford Street fill.

This lot is improved by a one-and-one-half-st'ory five-room frame dwelling with gable roof of ruhberoid roofing, and has a concrete block foundation and a five-foot basement. The building is equipped for electricity but not for gas, and has no cesspool, no furnace, no plumbing fixtures and no sewer connection. The exterior side walls are of stained shingle, and the interior walls are of plaster. The floors and trim are of pine.

There is a small one-car garage located on the northwest corner of the lot, and an outside toilet.

The fill on the Monson Street approach to S. B. I. Route 121 ranges from one foot six inches in height at the south lot line to five feet in height at the north lot line, and interferes materially with ingress and egress over said Monson Street.

No. 1917.

Norman W. Gebhardt.

Claimant is the owner of Lot No. 569, which is a corner lot located at the northeast corner of the intersection of Sanford and Maple Streets, and is approximately three hundred (300) feet south of S. B. I. Route 121. This lot has a frontage of forty (40) feet on Sanford Street and a depth of one hundred twenty-seven and one-half (127%) feet.

The lot in question is improved by a one-story four-room frame .dwelling, with stained shingle side walls and rubberoid roof, and has a basement the full length of the building. The floors and trim are of pine and the interior walls are of plasterboard.

The building is equipped for lighting but not for gas; has a furnace but no bath, and no plumbing fixtures or sewer connection. There is a one-car garage at the rear of the lot, also a well and an outside toilet.

The Sanford Street fill which constitutes the approach to S. B. I. Route 121, commences just south of the south line of claimant’s lot, and rises gradually to an elevation of two feet and three inches at the north line of the lot, as the result of which there is some material interference with ingress and egress over Sanford Street, as the result of the construction of the improvement in question.

No. 1918.

Anna B. Skinner.

Claimant is the owner of Lot No. 578 which is located on the east side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately 166.3 feet south of said S. B. I. Route 121, and forty (40) north of Maple Street. This property has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is three hundred thirty (330) feet east of the Sanford Street fill.

This lot is improved by a one-story five-room frame dwelling with two porches, and has rubberoid roofing, a concrete block foundation, but no basement. The building is equipped for electricity but not for gas; has no furnace, no bath, no plumbing fixtures, no cesspool, and no sewer connections. The exterior walls are of siding. The floors and trim are of pine and the interior walls are of plasterboard. The property is in poor physical condition and badly in need of repairs. There is a three-car garage, a well, and an outside toilet at the rear of the lot.

The south end of the fill on the Clark Street approach to S. B. I. Boute 121, is approximately eighty (80) feet north of the north line of claimant’s property. The surface of the lot is level with the adjoining street, and there is no interference with ingress or egress over said Clark Street as the result of the construction of the improvement in question.

No. 1919.

William M. Harris.

Claimant is the owner of Lot No. 575 which is located on the east side of Clark Street between S. B. I. Boute 121' and Maple Street, being approximately forty-five (45) feet south of S. B. I. Boute 121, and one hundred sixty (160) feet north of Maple Street; — and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127:1/2) feet. The west or front line of such lot is three hundred thirty (330) feet east of the Sanford Street fill.

The lot is improved by a one-story five-room frame dwelling* house of very cheap construction, which is equipped for electricity but not for gas. The building has a concrete foundation, but no basement. The exterior walls and roof are of rubberoid construction, and the interior walls are of plasterboard. The floors and trim are of pine. There is no furnace, no bathroom and no plumbing fixtures. There is a small garage and an outside toilet at the rear end of the lot.

The north line of this lot adjoins the alley which is immediately south of S. B. I. Boute 121. The fill on the Clark Street approach to S. B. I. Boute 121 commences just south of the south line of claimant’s lot, and.rises gradually to a height of 1.5 feet at the north line of the lot, as a result of which there is some material interference with ingress and egress over said Clark Street as the result of the construction of the improvement in question.

No. 1920.

Mike Court.

Claimant is the owner of Lot No. 565 which is located on the east side of Sanford Street between S. B. I. Route 121 and Maple Street, being approximately one hundred forty (140) feet south of said S. B. I. Route 121, and one hundred sixty (160) feet north of Maple Street; — and has a frontage of forty (40) feet on Sanford Street and a depth of one hundred twenty-seven and one-half (127%) feet.

The lot is improved by a four-room bungalow of cheap construction, having an asbestos shingle roof, a concrete block foundation, but no basement. The exterior side walls are of siding, painted. The floors and trim are of pine, and the interior walls are of plaster. The building is wired for electricity but has no gas or sewer connections, no bathroom, no furnace, and no plumbing fixtures. There is a small garage and an outside toilet.

The north line of this lot borders on an east and west alley, and the west lot line immediately adjoins Sanford Street. The fill on the Sanford Street approach to said S. B. I. Route 121 is six feet six inches high at the south line of claimant’s property and increases gradually to eight feet three inches at the north line of such property, as the result of which, access to the property from Sanford Street is practically destroyed.

No. 1921.

L. V. Taylor and Emma Taylor.

Claimants are the owners of Lot No. 570 which is located on the west side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately sixty-five feet south of said S. B. I. Route 121, and one hundred sixty (160) feet north of Maple Street; and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The north line of this lot borders on an east and west alley, and the east or front lot line is approximately two hundred seventy (270) feet east of the Sanford Street fill.

The lot is improved by a four-room cottage with concrete block foundation, but no basement. The exterior walls are of stained shingles, and the roof of asbestos shingles. The floors and the interior trim are of pine and the interior walls of plaster. The building is equipped for electricity and gas but has no bathroom, no furnace, no sewer connections and no plumbing fixtures. There is a garage and a shed at the rear of the lot, as well as an outside toilet.

The fill on the Clark Street approach to said S. B. I. Route 121 commences at a point just south of the south line of this lot and increases in height to 1.5 feet at the north end of the lot, as a result of which there is some interference with ingress and egress over said Clark Street.

No. 1922.

Henry E. Hanshaw and Stella Hanshaw.

Claimants are the owners of Lot No. 587 which is located on the east side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately ninety-five (95) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street; — and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is six hundred sixty (660) feet east of the Sanford Street fill.

The lot is improved by a five-room frame dwelling house with composition roof, and concrete block foundation, but no basement. The exterior walls are of siding, painted. The floors and trim are of pine and the interior walls are of plaster. The building is equipped for electricity and gas, but has no sewer connections, no cesspool, no furnace, and no plumbing fixtures. There is a one-car garage, a shed and outdoor toilet at the rear of the lot.

The Monson Street approach to S. B. I. Route 121 commences a short distance north of the north line of this lot. The lot is level with the adjoining street and there is no interference with ingress or egress over Monson Street as the result of the construction of the improvement in question.

No. 1923.

Fred Denney and Frances Denney.

Claimants are the owners of Lot No. 580 which is located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately fifteen (15) feet south of said S. B. I. Boute 121, and one hundred sixty (160) feet north of Maple Street. This lot lies just south of the alley which at this point, parallels said Boute 121 on the south;— has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is six hundred (600) feet east of the Sanford Street fill.

The property is improved by a one-story two-room frame dwelling house of cheap construction, with concrete foundation, but no basement. The exterior side walls and roof are of rubberoid shingle construction. The building is in poor condition, is equipped for electricity and gas, but has no sewer connections, no cesspool, no furnace, and no plumbing fixtures. There is a one-car garage, a coal shed and outdoor toilet at the rear of the lot.

The fill on the Monson Street approach to S. B. I. Boute 121 has an elevation of 1.5 feet at the south line of this lot and increases gradually to five feet at the north line of the lot as the result of which access to said property from Monson Street is practically destroyed.

No. 1924.

Edwin Jones and Dorothy P. Jones.

Claimants are the owners of Lot No. 586 which is a vacant lot located on the east side of Monson Street, between S. B. I. Boute 121 and Maple Street, being approximately fifty-five (55) feet south of S. B. I. Boute 121, and one hundred twenty (120) feet north of Maple Street; — and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is six hundred sixty (660) feet east of the Sanford Street fill.

The fill on the Monson Street approach to S. B. I. Boute 121 commences a short distance north of the south line of this lot, and rises gradually to an elevation of one and one-half feet at the north line of the lot, and consequently there is some interference with ingress and egress over Monson Street as the result of the construction of the improvement in question.

No. 1925.

Mike Court.

Claimant is the owner of Lot No. 566 which is a vacant lot located on the east side of Sanford Street between S. B. I. Route 121 and Maple Street, being approximately one hundred eighty (180) feet south of S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; — and has a frontage of forty (40) feet on Sanford Street and a depth of one hundred twenty-seven and one-half (127%) feet.

The Sanford Street fill is four feet seven inches in height at the south line of this property, and increases gradually to a height of six feet six inches at the north property line, as the result of which, access to the property from Sanford Street is practically destroyed.

No. 1926.

William M. Harris.

Claimant is the owner of Lot No. 576 which is a vacant lot located on the east side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately sixty-five (65) feet south of S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; — and has a frontage of forty (40) feet on Maple Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is three hundred thirty (330) feet east of the Sanford Street fill.

The fill on the Clark Street approach to S. B. I. Route 121 commences near the north line of this lot. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over Clark Street as the result of the construction of the improvement in question.

No. 1927.

Elmer Kinsinger.

Claimant is the owner of Lot No. 574 which is located on the west side of Clark Street between S. B. I. Route 121 and Maple Street, being just north of said Maple Street and two hundred twenty-five (225) feet south of S. B. I. Route 121;— and has a frontage of forty (40)) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the lot is two hundred seventy (270) feet east of the Sanford Street fill.

The property is improved by a one-story three-room frame dwelling house of very cheap construction, without foundation or basement. The exterior walls are of stained shingle, and the roof of rubberoid construction. The floors and trim are of pine and the interior walls are of plasterboard. The building is equipped for electricity but not for gas. There is no sewer connection, no cesspool, no furnace, and no plumbing fixtures. There is a one-car garage and an outside toilet. The dwelling is located at the rear of the lot adjoining the alley.

The south end of the fill on the Clark Street approach to S. B. I. Route 121 is approximately one hundred twenty (120) feet north of the north line of this lot. The surface of the lot is level with both Maple and Clark Streets, and there is no interference with ingress or egress over either of said streets as the result of the construction of the improvement in question.

No. 1928.

Bessie Ball.

Claimant is the owner of Lot No. 589 which is located on the east side of Monson Street between S. B. I. Route 121 and Maple Street, being just north of Maple Street and approximately one hundred seventy-five (175) feet south of S. B. I. Route 121; — and has a frontage of forty (40) feet on Monson Street, and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of the lot is six hundred sixty (660) feet east of the Sanford Street fill.

The property is improved by a four-room dwelling house of cheap construction, and has a concrete foundation, but no basement. The exterior side walls are of siding, and the roof is of rubberoid construction. The floors and trim are of pine and the interior walls are of plasterboard. The building is equipped for electricity but not for gas, and has no sewer, no cesspool, no bathroom, no furnace and no plumbing fixtures. There is a shed and outdoor toilet at the rear of the lot.

The north line of this lot is over eighty (80) feet south of the south end of the fill on the Monson Street approach to S. B. I. Route 121. The surface of the lot is on the same level as the adjoining streets, to wit, Monson and Maple Streets, and there is no interference with ingress or egress over either of said streets as the result of the construction of the improvement in question.

No. 1929.

Norman W. Gebhardt.

Claimant is the owner of Lot No. 568 which is located on the east side of Sanford Street, between S. B. I. Route 121 and Maple Street, being approximately two hundred sixty (260) feet south of S. B. I. Route 121, and forty (40) feet north of Maple Street; — and has a frontage of forty (40) feet on Sanford Street and a depth of one hundred twenty-seven and one-half (127%) feet.

The only improvement on this property is a small building with rubberoid covering, located on the rear of the lot, occupied by claimant as his residence, and which he testified was worth about one hundred dollars ($100.00) at the time the work on S. B. I. Route 121 was commenced.

The Sanford Street fill which immediately adjoins this property on the west, ranges in height from two feet three inches at the south line to three feet five inches at the north line of said lot; as the result of which access to said property from Sanford Street is practically destroyed.

No. 1930.

Mamie Umdenstock.

Claimant is the owner of Lot No. 572 which is a vacant lot located on the west side of Clark Street between S. B. I. Route 121 and Maple Street, being approximately one hundred forty-five (145) feet south of said S. B. I. Route 121, and eighty (80) feet north of Maple Street; — and has a frontage of forty (40) feet on Clark Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of said lot is two hundred seventy (270) feet east of the Sanford Street fill.

The fill on the Clark Street approach to said S. B. I. Route 121 commences about forty (40) feet north of the north line of this lot. The surface of the lot is level with the adjoining street and there is no interference with ingress or egress over said street as the result of the construction of the improvement in question.

No. 2276.

Dallas R. Sweeney and Grace E. Sweeney.

Claimants are the owners of Lot No. 581 which is a vacant lot located on the west side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately fifty-five (55) feet south of S. B. I. Route 121, and one hundred twenty (120) feet north of Maple Street; — and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The east or front line of the Lot is six hundred (600.) feet east of the Sanford Street fill.

The fill on Monson Street which constitutes the approach to S. B. I. Route 121, commences at a point a short distance north of the south line of this lot and reaches, an elevation of 1.5 feet at the north line of the lot, as the result of which there is some interference with ingress and egress over Mon-son Street as the result of the construction of the improvement in question.

No. 2277.

Ed Pollitt.

Claimant is the owner of Lot No. 588 which is located on the east side of Monson Street between S. B. I. Route 121 and Maple Street, being approximately one hundred thirty-five (135) feet south of said S. B. I. Route 121, and forty (40) feet north of Maple Street; and has a frontage of forty (40) feet on Monson Street and a depth of one hundred twenty-seven and one-half (127%) feet. The west or front line of such lot is six hundred sixty (660) feet east of the Sanford Street fill.

The property is improved by a one-story four-room frame dwelling with brick foundation, but no basement. The exterior side walls are of siding, and the roof is of rubberoid construction. The floors and trim are of pine, and the interior walls are of plaster. The building is not equipped for electricity or gas, has no sewer connections, no cesspool, no furnace, and no plumbing fixtures.

The south end of the fill on the Monson Street aproach to S. B. I. Route 121 is approximately fifty (50) feet north of the north line of this property. The surface of the lot is level with the adjoining street, and there is no interference with ing’ress or egress over said Street as the result of the construction of the improvement in question.

Claimants contend that their several properties have been depreciated in value as the result of the - construction of the improvement in question, and base their claims upon the following elements of damage, to wit:

1. Dust blowing from the roadway.

2. Fumes from, and noise of passing automobiles.

, 3. Interference with the circulation of air over said properties.

4. Interference with their right of access.

5. Interference with the natural drainage, and failure on the part of the Respondent to provide proper drainage.

A review of the authorities on the legal questions involved in claimants’ contentions is fully set forth in the consolidated cases of Albert J. Moore, et al. vs. The State, Nos. 1957 to 1964, inclusive, and No. 1974, to which reference is made therefor.

As in the .consolidated cases of Albert J. Moore, et al, hereinbefore referred to, and in order that this opinion may not be unduly extended, we will not attempt to set forth herein the application of the principles of law involved, to the facts in each particular case but will recite briefly the conclusions at which we have arrived.

Upon consideration of all of the evidence, so far as the same applies to the several claimants, and the view of the several properties as taken by the court, and upon consideration of the law as the same applies to the facts in each case, we have concluded as follows, to wit:

1. As to the claims for damages on account of dust blowing from the "roadway, fumes from passing automobiles, and interference with the circulation of air over the premises of the several claimants; — none of the claimants have shown any depreciation in the value of their respective properties,for which they are entitled to damages.

2. As to claims for damages on account of interference with the natural drainage, etc., Lots 565, 566, 570, 571, 575, 576, 580, 581, 585, and 586 have each been depreciated in value to some extent, ás the result of the construction of the improvement in question, the amount of depreciation in each case varying with the particular lot. Future damages can be obviated in each case by connecting the open ditches or other means of drainage of such lots with the sewer system installed by the Respondent.

3. As to claims for damage on account of interference with the right of access, each and all of the lots involved in this proceeding have been depreciated in value to some extent as the result of the construction of the improvement in question, the amount of such depreciation in each case varying with the particular lot.

4. The total depreciation in value of each and all of the lots involved in this proceeding, as hereinbefore set forth, as the result of the construction of the improvement in question is as follows:

Lot 571 — Mamie Umdenstock.............................. $400.00
Lot 585 — Edwin Jones and Dorothy P. Jones............... 900.00
Lot 569 — Norman W. Gebhardt............................. 400.00
Lot 578 — Anna B. Skinner................................. 200.00
Lot 575 — William M. Harris................................ 550.00
Lot 565 — Mike Couri...................................... 900.00
Lot 570- — L. V. Taylor and Emma Taylor................... 500.00
Lot 587 — Henry E. Hanshaw and Stella Hanshaw........... 350.00
Lot 580 — Fred Denney and Frances Denney................ 400.00
Lot 586 — Edwin Jones and Dorothy P. Jones............... 100.00
Lot 566 — Mike Couri...................................... 200.00
Lot 576 — William M. Harris............................... 75.00
Lot 574 — Elmer Kinsinger ................................ 100.00
Lot 589 — Bessie Ball......'................................ 175.00
Lot 568 — Norman W. Gebhardt............................ 200.00
Lot 572 — Mamie Umdenstock ............................. 75.00
Lot 588 — Ed Pollitt ...................................... 100.00
Lot 581 — Dallas R. Sweeney and Grace E. Sweeney......... 100.00

It is Thebefobe Ordebed that awards be and the same are hereby entered in favor of the several claimants herein as follows, to wit:

No. 1915 — Mamie Umdenstock, owner of Lot 571, Four Hundred Dollars ($400.00).
No. 1916 — Edwin Jones and Dorothy P. Jones, owners of Lot 585, Nine Hundred Dollars ($900.00).
No. 1917 — Norman W. Gebhardt, owner of Lot 569, Four Hundred Dollars ($400.00).
No. 1918 — Anna B. Skinner, owner of Lot 578, Two Hundred Dollars ($200.00).
No. 1919 — William. M. Harris, owner of Lot 575, Five Hundred Fifty Dollars ($550.00).
No. 1920 — Mike Couri, owner of Lot 565, Nine Hundred Dollars ($900.00).
No. 1921 — L. V. Taylor and Emma Taylor, owners of Lot 570, Five Hundred Dollars ($500.00).
No. 1922' — Henry E. Hanshaw and Stella Hdnshaw, owners of Lot 587, Three Hundred Fifty Dollars ($350.00).
No. 1923 — Fred Denney and Frances Denney, owners of Lot 580, Four Hundred Dollars ($400.00).
■ No. 1924 — Edwin Jones and Dorothy P. Jones, owners of Lot 586, One Hundred Dollars ($100.00).
No. 1925 — Mike Couri, owner of Lot 566, Two Hundred Dollars ($200.00).
No. 1926 — William M. Harris, owner of Lot 576, Seventy-five Dollars ($75.00).
No. 1927 — Elmer Kinsinger, owner of Lot 574, One Hundred Dollars ($100.00).
No. 1928 — Bessie Ball, owner of Lot 589, One Hundred Seventy-five Dollars ($175.00).
No. 1929 — Norman W. Gebhardt, owner of Lot 568, Two Hundred Dollars ($200.00).
No. 1930 — Mamie TJmdenstock, owner of Lot 572, Seventy-five Dollars ($75.00).
No. 2277 — Ed Pollitt, owner of Lot 588, One Hundred Dollars ($100.00).
No. 2276 — Dallas R. Sweeney and Grace E. Sweeneyi owners of Lot 581, One Hundred Dollars ($100.00).


text:
    (Nos. 1948, 1950, consolidated
    Boy O. Yenerich and Wesley Yenerich, Lester Yenerich and Verda Yenerich, Minors, by Boy O. Yenerich, Guardian and Next Friend, No. 1948, George Beetz, No. 1950, Claimants, vs. State of Illinois, Respondent.

      Opinion filed June 1, 1935.

    Jones & Heflin, for claimants.
    Otto Keener, Attorney General; John Kasserman, Assistant Attorney General, for respondent.
   Mr. Chief Justice Hollerich

delivered the opinion of the court:

The above named claimants have filed their respective claims herein for the recovery of damages which they claim to have sustained as the result of the construction by the respondent of S. B. I. Route 70 along the west side of certain land owned by the claimants Roy 0. Yenerich, Wesley Yenerich, Lester Yenerich, and Ver da Yenerich. All claimants are represented by the same counsel, and by agreement of all parties concerned, the cases have been consolidated for the purpose of this hearing.

The claimants in No. 1948, Roy 0. Yenerich, Wesley Yenerich, Lester Yenerich, and Ver da Yenerich, are the owners in fee of the West Half (W%) of the Southwest Quarter (SWVt) of Section Nine (9), Township Thirty-six (36) North Range One (1) East of the Third (3d) Principal Meridian, in LaSalle County, Illinois.

Claimant in No. 1950, George Beetz, is the owner of the East Half (E%) of the Southwest Quarter (SW%) of said Section Nine (9), being an eighty-acre tract lying adjacent to and immediately east of the Yenerich tract.

Prior to the 13th day of April, A. D. 1928, the physical conditions surrounding the aforementioned tracts of land, briefly stated, were as follows:

An unpaved public highway extended in a northerly and southerly direction along the west side of the Yenerich tract, and an unpaved public highway extended in an easterly and westerly direction along the south side of both tracts.

There was an open ditch on the east side of the public highway just west of the west fence line of the. Yenerich tract, which ditch turned to the east at the southwest corner of said tract and extended in an easterly direction along the north side of the aforementioned east and west road, about two hundred fifty (250) feet, thence southerly across such east and west road, thence in a southerly and southwesterly direetion through the land known as the Hagerty farm, and on to the land known as the G-uilfoyle farm.

The surface of both of the aforementioned tracts was low and quite level, but there was a slight fall to the west and southwest. The natural drainage was to the open ditch on the west side of the Yenerich tract. Both of above tracts were tile-drained; — the Beetz tract drained into and connected with the tiles on the Yenerich tract, which tiles extended in a westerly or southwesterly direction to, and (with the exception of the west two or three strings) drained into, the aforementioned open ditch on the west side of the Yenerich tract.

The drainage by way of the aforementioned open ditch on the west side of the Yenerich tract was supplemented by a 24-inch tile commencing at the southwest corner of the Yenerich tract and extending southerly under the east and west road, along the east side of the north and south road for a distance of about nine hundred (900) feet, thence southwesterly across said east and west road, and joined the natural ditch previously referred to, on the G-uilfoyle farm. Such line of 24-inch tile was approximately 1,224 feet in length and was constructed some thirty or thirty-five years ago by the township and a previous owner, for the purpose of draining a sort of slough that existed there. There was a drop box or catch basin at the inlet of said 24-inch tile, and the mouth of the tile was covered by a steel grating. Concrete retaining walls were constructed around the mouth of the tile and extended therefrom both in an easterly and in a westerly direction.

The tile drainage on the Yenerich tract consisted of a string of 10-inch tile at the north end of said tract, and about eight strings of 6-inch tile at varying distances between the 10-inch tile and the south boundary line of the tract. Two or three of the most southerly lines of 6-inch tile drained into the drop box or catch basin at the intake of the 24-inch tile, and the remainder of the 6-inch tile as well as the 10-inch tile, drained into the open ditch along the west side of the Yenerich tract.

In 1928 S. B. I. Route 70 was constructed from Mendota to Rochelle, over the right-of-way of the aforementioned public highway extending northerly and southerly along the west line of the Yenerich tract. Construction work on such route was commenced on April 13th, 1928 and the same was completed and accepted by the Division of Highways on April 25,1929. In the construction of said S. B. I. Route 70, a tract of land approximately forty-six feet in width and 1,200 feet in length along the west side of the Yenerich tract, containing approximately 1.77 acres, was taken and used by the respondent as a borrow pit from which soil was removed for use in making fills. The bottom of this borrow pit was about a foot lower than the open ditch it replaced, and in the removal of soil from said borrow pit, each and every string of tile which drained into the former open ditch or into the catch basin was dug up.

The owners of the Yenerich tract contend that they are entitled to be compensated for 1.77 acres of land taken for a borrow pit; also for the value of a fence which was in existence along the west line of the property prior to the construction of S. B. I. Route 70 and which was not there after the improvement was completed; also that they are entitled to damages for depreciation in value of their lands which they claim has resulted from interference with the drainage system by reason of the construction of the improvement in question.

The owners of the Beetz tract contend that their property has depreciated in value as the result of the construction of S. B. I. Route 70, by reason of the interference with the drainage tile on the Yenerich tract, and that they are entitled to be compensated for the damages so sustained.

There is considerable discrepancy in the testimony as to the comparative efficiency of the tile system prior to and since the construction of S. B. I. Route 70, as well as to the extent to which such drainage system was interfered with, by the construction of such highway.

Claimants produced testimony to show that prior to the construction of S. B. I. Route 70 the field tile were in good working order, the water drained off properly, and the land raised good crops; that the 2'4-inch tile was in satisfactory working order and functioned properly; that the respondent in driving its heavy machinery over the 24-inch tile in the work of constructing S. B. I. Route 70, broke a number of such tile; that large sink holes afterwards appeared at the places where such breaks occurred, and that such tile thereby became obstructed; that respondent removed the steel grating from the mouth of such 24-inch tile; that as the result thereof weeds and other debris were carried into such tile and helped to obstruct the same; that the obstruction of the 24-inch tile also interfered with the efficient operation of the smaller tile; also that the respondent damaged a large number of the smaller tile by driving its tractors over them; interfered with the entire drainage system by the construction of the borrow pit and the removal of all drain tile therefrom; that by reason of such interference water does not run off the premises as it previously did; that the outlets of the tile which drained into the borrow pit, as well as the outlet of the 24-inch tile are now clogged up, and that the land has become sour and does not raise as large crops as it previously did.

The respondent produced testimony to show that some of the 24-inch tile were broken before the work of construction of S. B. I. Route 70 was commenced; that sink holes then existed above such tile; that the broken tile were removed and replaced by new 24-inch tile and the sink holes filled by the respondent before the work of construction commenced; also that other broken 24-inch tile were removed and replaced by respondent during the progress of the work or after the completion thereof; that in replacing such 24-inch tile it was noticed that the same was disintegrating and that said string of tile was practically obsolete; that the inlet to said 24-inch tile was obstructed by debris before the work of construction commenced, and that the outlet was approximately two feet below the normal stream bed on the G-uilfoyle farm.

No attempt was made to agree with the owners of the Yenerich tract as to the value of the land taken for the purpose of a borrow pit, nor were any condemnation proceedings commenced in connection therewith, nor was any attempt made to agree with any of the claimants herein as to the damages, if any, to the property not taken.

Testimony was introduced by the claimant as to the cost of cleaning the tile which were obstructed, replacing those which were broken, and making such repairs as claimants considered necessary to place the drainage system in as good condition as it was prior to the time of the construction of S. B. I. Route 70. Testimony was also introduced by the respondent as to the cost of such repairs or replacements as it considered necessary to put the several outlets of the tile on the Yenerich tract in good working condition. The estimated cost of such replacements and repairs, as made by the claimants, was $3,045.00, while the estimated cost of the repairs suggested by the respondent was $300.00.

The cost of such replacements and repairs, however, is not the proper measure of damages in this case. The proper measure of damages for land taken for public use, is the fair cash market value of the land at the time of the taking; and the proper measure of damages for land not taken but damaged for public use, is the difference between the fair cash market value of the property prior to the construction of the improvement and unaffected by it, and the fair cash market value of the.property after the improvement and as affected by it. Dept. of Public Works vs. McBride, 338 Ill. 347; Dept. of Public Works vs. Caldwell, 301 Ill. 242; Brand vs. Union Elevated Co., 258 Ill. 133.

Upon consideration of all of the evidence as to the Yenerich tract, we find as follows:

1. That the respondent has taken 1.77 acres of land off of the west side of such tract.

2. That the fair cash market value of the remainder of such tract has been depreciated as the result of the interference with the drainage thereof by the construction of S. B. I. Route 70.

3. That the owners of such tract, to-wit, Roy O. Yenerich, Wesley Yenerich, Lester Yenerich and Verda Yenerich, are entitled to compensation for the land taken, to-wit, 1.77 acres, at the rate of $210.00 per acre, to-wit, $371.70.

4. That the owners of such tract are entitled to damages for depreciation in the fair cash market value of their land as the result of the construction of S. B. I. Route 70, as aforesaid, in the sum of $2,000.00.

5. That the total of such awards is payable as follows: To Roy O. Yenerich, one-third thereof; to Wesley Yenerich, Lester Yenerich and Verda Yenerich, each two-ninths thereof. Wesley Yenerich, Lester Yenerich and Verda Yenerich being minors, their respective shares will therefore be paid to Roy 0. Yenerich who is their legal guardian pursuant to appointment by the Probate Court of LaSalle County, Illinois.

Upon consideration of all of the evidence as to the Beetz tract, we find as follows:

There is no material or substantial evidence as to any damage to such tract resulting from the constructing of the improvement in question. No part of such tract is within a quarter of a mile of the center of S. B. I. Route 70. There is some evidence of a depreciation in the value of the property, but nothing to connect such depreciation with the construction of the highway in question.

As to Claim No. 1950, George Beetz, It is Thebefobe Obdebed that award be denied and the case dismissed.

As to Claim No. 1948, It is Thebefobe Obdebed that an award be entered in favor of the aforementioned owners of the Yenerich tract in the total sum of Twenty-three Hundred Seventy-one Dollars and Seventy Cents ($2,371.70),- and that the same be paid as follows:

To Roy 0. Yenerich, the sum of Seven Hundred Ninety Dollars and Fifty-five Cents ($790.55).

To Roy O. Yenerich, as guardian of Wesley Yenerich, the sum of Five Hundred Twenty-seven Dollars and Five Cents ($527.05).

To Roy O. Yenerich, as guardian of Lester Yenerich, the sum of Five Hundred Twenty-seven Dollars and Five Cents ($527.05).

To Roy O. Yenerich, as guardian of Ver da Yenerich, the sum of Five Hundred Twenty-seven Dollars and Five Cents ($527.05).

It is Fubtheb Obdebed that the payment of said awards be conditioned upon the execution and delivery by said claimants to the proper officers of the respondent of a deed of conveyance, conveying to the respondent the aforementioned tract of 1.77 acres so taken by the respondent for the purpose of .a borrow pit as aforesaid.