Chicago, Rock Island & Pacific Railroad v. Carey

Citations

• 90 Ill. 514

Syllabus

<p>1. Measure or damages—overflowing land by obstructing outlet. Where a railway company, in constructing a second track on its right of way across land, obstructs a prior drainage so as to dam up and flow the water back on the plaintiff’s land, the depreciation in the value of the land, caused solely by the structure, may be considered as the measure of damages as to the real estate injured thereby. But in considering such depreciation, it is necessary to take into account the question whether the injury can be obviated, in whole or in part, by expending money to remove the obstruction. If the injury is permanent and can not be removed, the measure of damages is the depreciation of the property injured.</p> <p>2. If the obstruction causing the injury is upon the company’s right of way, the owner of the land injured has no right to enter thereon to remove the obstruction, and the law will not require him to commit a trespass to remove the same, even if it would cost but a trifle, nor can the company require such owner to enter its right of way for such purpose. In such case, the party injured by the obstruction has the right to claim it as a permanent injury, and the jury to allow damages as such..</p> <p>3. But if the obstruction is upon the plaintiff’s land, he may remove the same, and the jury may consider the cost necessary to restore the property to its former condition, and that cost would be the depreciation in the value of his land.</p> <p>4. Same—damage to crops. Where the usual outlet of water is obstructed so as to overflow the plaintiff's lands, he may recover for the loss of or injury to the crops of hay, etc., or the expense of securing them, in addition to the loss by the depreciation of the land.</p> <p>5. Same—os to other elements of damage. Where, in an action to recover for damage to real estate against a defendant obstructing the drainage of water and causing it to overflow a portion of the plaintiff’s farm, the court instructs the jury, that in