, 1881-03-27

4, 1S6l-TNENI fA0Ei
property~ The principle turns upon mar
row construction OF that clause in the presen
Constitution OF the State which was designed
to protect private property from Invasion TO
public uses. This clause stipulates tha
"private property shall not be taken or dq'n
aged for public use without just compensa
ton" The phraseology OF similar provis
| ion In the old Constitutions omitted the word:
"or damaged" The rulo in the past la:
been to award damages for what Is knowr
as "physieal injury" to PROPERTY. That |:
! 10 say, In the case OF , the construction of :
| Vladuct, the owners Of abutttng houses or
tho approach would be entitled to compensa
! tion to the amount necessary to place thei1
houses on the new grade. and make the street
! and the use thereof just as accessible
as 1t had been before. But the new theory
! Of lazy laid down by the Snpreme Court In;
cludes recognition Of Indirect or conse-
quential damages in cases where there has
been no actual or physical changes in the
condition Of property by reason Of the public
Improvement y
This new element in the law OF damages Is
most serious menace to the taxpayers of
the city. Wherever bridge or viaduct has
been constructed-and both are necessary
to business and essential to public safety
claimants for damages will come forward by
the score and hundred from the cross-strcets
whenever they shall be able to show to a
sympathetic jury any depreciation from
whatever cause in the estimated value Of
their property or in the rental they are able
to obtain for it. 1t is well known that In all
eases where private person is the COM
p]ainant and the city the defendant the SYM
pathy of the jury is with the former, and,
contrary to tho rule Of law, the defendant is
deprived Of the benefit of any doubt. The
municipal corporation. The general tax
payers may be flceced in enormous amounts
under such a construction Of the law as the
Supreme Court has laid down, for specu-'
1atiye lawyers will be ready and eager to
bring suits against the city without retain
ers, and trust to a division Of the spoils for
their fees. The o~per-cent limitation of taxes
does not include the judgments secured
against the city, and the taxes may and must
be Increased to the extent that consequential
damages to property OH the cross-streets
shall be allowed, not merely in the case OF
bridges and viaducts that shall be construct
cd In the future. but also in the case of those
which have already been built within five
years. The only protection which the city
has against tile cr-post.}ucto damages is in
the general statute OF limitations, which pro-
yiles that factions to recover damages for
an injury done to property, real or personal,
. shall be commenced within five years
next after the cause Of action accrued"
It is very plain that tho casa in which this
new rule of indirect damages has been de-
yeoped should have a rehearIng and more
deliberate consideration. The local Courts,
with 4 full knowledge Of the peril which
would be visited upon the Municipal Treas
ury by admitting the theory OF consequential
damages, decided against the complainant.
This decision WIS sustained by the Appellate
Court, which followed the old rule. The re-
vcrsal by the Supreme Court seems to have
been determined by the Judges who have
not Ind the same opportunities to estimate
the great cost to cities, tho defeat OF needed
public Improvements, and the large amount
from this new and sweeping theory Of dam
ages.
II the opinion of the Supreme Court Is to
stand, then the proceeding In every PROPOSE
tion for a new viaduct In any part of the city
must be cautious and provisional. 1t will
not be safe to order the construction of any
public improvement, in fact, without first
legal release from all property
owners whose interests may be affected in
the most remote and indirect manner Of all /
claim for damages. Amy other process will
involve the general taxpayers in a risk Of
serious loss to which their representatives |
fairly subject them. II 1t shall be-
come necessary to approach every public !
with such great caution, the |
'esult will certainly be to retard the progress
IT great and growing city like Chicago.