The opinion
•Mr.. Justice Cartwright, dissenting:
My understanding of the law is, that if a corporation authorized to take or damage property for public use by the construction and use of the public work injures the property of the citizen for the use to which he. has devoted his property it must pay the damage; that the corporation has no right to compel the owner to change the use to which his property is applied or meet his claim by showing that the property would not be damaged if devoted to some other use. The court has laid down that rule in various cases, and has frequently said that by any other rule the owner would not be compensated for his damage nor receive the just compensation to which he is entitled. In the case of St. Louis, Jerseyville and Springfield Railroad Co. v. Kirby, 104 Ill. 345 , Kirby had devoted his farm land to a special use as a training track, and in reply to the objection that what the training track was worth to him was not the true measure of damage, the court replied: “Why not? It is said he cannot recover for damage to his business. That may be true in so far as his business does not consist in the use of the land. The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land by which he derives profit, and he is to be deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation.” In Johnson v. Freeport and Mississippi River Railway Co. 111 Ill. 413 , the court reversed the judgment of the trial court because of the refusal to allow proof that the property sought to be condemned had a special value above the general market value. . The court quoted what was said in the Kirby case, with a statement that it was there held competent to show that the land proposed to be taken has a special value to the owner by reason of a special profitable use to which he has devoted it, and that he is entitled to compensation for the loss occasioned by deprivation of that special use. In Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. 112 Ill. 589 , the court again made the above quotation from the Kirby case, and held that the owner of property has a right to the value which his property has in view of the particular use of it which he has adopted. The court said that the owner of property is entitled, under the constitution, to whatever the property is worth to him and is not required to make any pecuniary sacrifices at all. In illustration of the justice and propriety of the rule adopted, the court supposed that the owner of a farm concludes to go into the dairy business and spends several thousand dollars on his farm in preparing the necessary stalls and sheds and making suitable preparations for the handling of milk and converting it into butter and cheese. The court said it was very clear that when the farm was fitted up for that purpose it would have a special value to the owner that it would not have for mere farming purposes. The owner of the farm, under such circumstances, could not be required to change the use of his farm and the court would have no right to dictate to him that he should. In Hercules Iron Works v. Elgin, Joliet and Eastern Railway Co. 141 Ill. 491 , the court again indorsed the doctrine of the previous cases that the recovery of damages must be upon the basis of the actual value taken from the owner; that it is the value which the owner has, and of which he is deprived, that must be made good to him. In Sanitary District v. Pittsburgh, Ft. Wayne and Chicago Railway Co. 216 Ill. 575 , the court again stated the rule that where property, by reason of being applied to a particular use, has a special value to the owner, that value is to be ascertained and allowed as compensation; and in Freiberg v. South Side Elevated Railroad Co. 221 Ill. 508 , the same doctrine was applied. These decisions, as I understand, have settled the law beyond controversy.
In this case William A. McCoy had a leasehold interest in lots upon which he had erected a building for use as a hotel, with á frontage of 108 feet on VanBuren street, and he owned in fee 25 feet on the west which was covered by his hotel, making a frontage of 133 feet on VanBuren street. An elevated railroad was built in VanBuren street, supported by large columns, rendering the premises less accessible from the street and obstructing the passage of light and air to the first story, and, the railroad being put in operation, the noise from the passing trains on a level with the windows of the second floor of the hotel rendered the rooms on the south side of the second and third floors practically unfit for hotel purposes. There was no controversy over the fact that the property was seriously injured and damaged for the purpose to which the owner had devoted it. To meet this undisputed evidence the court admitted evidence that the property would not have been damaged if McCoy had devoted it to some other use. The evidence was, that for the eight years after the damage was done the business of the road- increased enormously, necessarily increasing the discomforts, annoyances and damage to the property for hotel purposes, but the witnesses said that the increased number of trains and passengers benefited the property for some other use. The plaintiff called as a witness an aixhitect familiar with hotel buildings and their rental value, and after he had testified that the construction and operation of the elevated railroad in VanBuren street were a damage to the market value of the property for use as a hotel, the court sustained an objection to giving his judgment as to the amount of injury. The same witness being asked to give an estimate of the effect of construction and use of the elevated railroad on the market value of the premises for hotel purposes on the assumption of a ground value of a certain amount, the court sustained an objection. This court, in the opinion adopted, sustains the rulings of the trial court, and holds that the question whether the rental value of the building for hotel purposes had been lessened was not involved; that the evidence on the part of the defendants tended to show that while the rooms facing the elevated structure on the second and third floors were damaged, they were rendered more valuable for other purposes than they previously were for hotel purposes; that the rental value for hotel purposes might have been totally destroyed by the construction and operation of the elevated railroad while the market value of the premises might at the same time have been increased, and that the court properly sustained the objection to the hypothetical question assuming a certain value of the land, because it related to the market value of the premises for hotel purposes. I do not agree with the opinion on that subject.
The trial court required witnesses to qualify as so-called experts on market values in order to enlighten the jury by opinions on that subject, which was contrary to the rule of law. The market value of real estate, where it can fairly be said to have a market value, is a fact to be proved as any other fact. It is not a question of art or science, and any person who is familiar with the land and has an opinion as to its value is competent to express that opinion. An expert is not required, but, where there is equal credibility, superior opportunity and intelligence would, of course, be entitled to the greater weight, and what weight is to be given to the opinion of a witness is for the jury. White v. Hermann, 51 Ill. 243 ; Keithsburg and Eastern Railroad Co. v. Henry, 79 id. 290 ; Pike v. City of Chicago, 155 id. 656; Johnson v. Freeport and Mississippi River Railway Co. supra.