delivered the opinion of the Court:
Appellee, the Peoria and Farmington Bailway Company, filed petitions for the purpose of _ procuring the right of way across the.tracks and grounds of the Peoria and Pekin railway, and two other companies. The cases were consolidated, and tried .as one by the court and a jury. A verdict was found for $1800 damages. A motion for a new trial was entered, overruled, and an order entered under the statute. The defendants thereupon bring the ease to this court by appeal, and seek a reversal.
The first question presented and urged is, that this court has no jurisdiction to hear the case; that the appeal should have been taken to the Appellate Court; that there is neither a freehold nor a franchise involved; that the condemnation only confers an easement to use the property condemned for corporate purposes during the existence of the corporate body; that when the body ceases to exist the easement terminates. In answer to this objection it is only necessary to refer to the 12th section of the Eminent Domain act, which in express terms gives an appeal; and in the ease of Kankakee and Seneca R. R. Co. v. Straut, 101 Ill. 653, it was held that nothing in the Practice act has taken away the appeal to this court, as given by that section. That disposes of this pbjection.
It is next insisted that the petitioning company failed to prove a regular and legal organization under its charter. It obtained its charter in March, 1869, and it is insisted it was required to prove that it had complied with all the requirements of its charter within the period limited by section 2 of article 11 of our constitution, which provides that all charters then existing under which an organization shall take place, or shall not be in operation within ten days from the time the constitution took effect, should thereafter have no validity or effect whatever; that inasmuch as the charter of appellee was granted before that time, it should have been shown that an organization was had within the time thus limited,—in other words, that appellee was a corporation cle jure. On the other hand it is claimed that under the plea of nul tiel corporation the proof of a corporation cle facto answers the plea. The general rule is, that in all collateral proceedings the introduction of the charter, and proof that the company is exercising the franchises granted, are sufficient. The evidence in this case was therefore sufficient to authorize petitioner to proceed to condemn the right of way.
But it is said that this is not a collateral proceeding. This is a misconception. The suit was brought to acquire the right of way on which to place the company’s tracks. It is true this was an exercise of a franchise contained in the charter, and the same is true when the company sues on a contract, or for a trespass to its property. The right to sue and defend suits is a franchise conferred by the charter.
It is, however, urged that the case of Allman v. Havana, Rantoal ancl Eastern R. R. Co. 88 Ill. 521, holds a different doctrine; that in that ease it was held, in a suit on a subscription for stock to the company, the defendant could interpose as a defence that the requisite amount of stock had not been subscribed to authorize the company to collect .assessments on subscriptions. That decision was under the general Bailroad law, and this is under a special charter. This special charter, by the fifth section, fixes "the amount of capital, and authorizes an organization when $10,000 is subscribed and ten per cent is paid in, whilst under the general law an organization cán not be 'had until the whole of the capital stock is subscribed. If this does not distinguish that case from this, it must be limited to cases arising under the general Railroad law, or must be overruled, as on more mature reflection we are convinced it is repugnant to the general doctrine applicable to eases like the present. There was, in addition to the charter, evidence of user of the franchises granted by the charter, and that was sufficient to authorize this proceeding.
It is insisted that the colirt erred in giving appellee’s instructions. This is appellee’s sixth instruction:
“The court instructs you that respondent railway companies can not recover any damages against the petitioner in this case on account of having to stop and start their respective trains at the proposed crossings of the different railroad tracks, in order to comply with the law of the State, and the jury will find no damages against the petitioner on account of any annoyance, damage, delay or expense caused simply by so being compelled by law to stop before passing any of the proposed crossings.”
Appellants claim that this instruction misstates the law, and the jury were misled by it. The law requiring trains to stop before reaching and crossing another road, is a police regulation, and may be maintained or repealed at the pleasure of the legislature. No one can say it is permanent, or how long it may continue. It is subject to repeal at any session of the General Assembly. It would therefore be mere matter of conjecture as to what, if any, damages would be sustained by appellants for the delay, inconvenience and trouble produced by complying with the requiremetits of the statute. Independent of the statute the same duty would be imposed, and it is too vague and uncertain to be an element of damages. Lake Shore and Michigan Southern R. R. Co. v. Cincinnati, Sandusky and Cleveland R. R. Co. 30 Ohio, 604; Boston R. R. Co. v. Old Colony R. R. Co. 3 Allen, 142; Old Colony R. R. Co. v. Plymouth R. R. Co. 14 Gray, 155; Massachusetts R. R. Co. v. Boston R. R. Co. 121 Mass. 124; Boston R. R. Co. v. Old Colony R. R. Co. 12 Cush. 605. There was, therefore, no error in giving this instruction, as it embraced the law as applicable to the case. What has been said'in reference to appellee’s sixth instruction applies to its seventeenth instruction, and disposes of the objections urged against it.
It is claimed that the court erred in excluding as an element of damages the increased danger of crossing appellants’ road on grade, by its sixteenth instruction. If this would increase the danger, it would require increased care and precaution of the employés of the company necessary to avoid it.' Accidents can be avoided by proper care. Nor are we warranted in presuming the employés would be negligent of their duty. If they observe their duty, a collision need never occur. To allow damages on this claim would violate the rule that they can not be allowed on mere conjecture, speculation, fancy or imagination,—they must be real, tangible and proximate. Nor is this rule in conflict with what was said in Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21. In that case it was held that only such injury apd inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damages. ' But nothing should be allowed for imaginary and speculative damages, or such remote or inappreciable damages as the imagination may conceive. The doctrines of that case then, do not condemn the sixteenth instruction, nor do they condemn the seventeenth.
Direct and immediate damages are alone recoverable in this class of cases, and remote or mere incidental damages can not be considered. It is that injury which depreciates the value of the property, whether by taking a portion of it or rendering the portion left less useful, or, in case of a railroad company or other corporate body, less capable of transacting its business,—such a hindrance and inconvenience as to occasion loss, or diminish and limit its capacity to transact its business, by decreasing the power to transact as much, or necessarily increasing the expense of what may be done, although not diminished. And this hindrance or obstruction must produce immediate or future loss. But when the new structure is made, if it does not necessarily abridge the owner’s capacity without increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, unless the property is depreciated in value these are not elements of damage.
It is insisted that' the appellee’s eighteenth instruction is vicious. It informs the jury that as against the damages to appellants’ road or property, aside from that taken, the jury might set off benefits to the entire property; and if they found it to be damaged, yet if they found that' the construction and operation of the road would produce benefits equal to or in excess of the damages, then they should not find damages in favor of appellants, except compensation for the property actually taken,—and the case of Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290, is referred to as condemning this instruction. Conceding that to be true, still in this ease there was, it is conceded, no evidence on which to base this instruction. It was a mere abstract legal proposition, having no application whatever to the evidence in the case. This being true, we are unable to say it operated in the slightest degree to the prejudice of appellants. Had there been such evidence, the instruction would have been calculated to mislead the jury, and might have required a reversal; but so far as we can see, it was harmless. In such case it must appear or be highly probable that such an instruction has produced injury to appellants, before a reversal will be had.
It is claimed that the court erred in giving the fifth of appellee’s instructions. It informs the jury that the condemnation of the strip across the property on which elevator “A” is situated, will not deprive the owner of the use of the elevator as at present constructed and used, and that the jury should not allow any damages for depriving its owner of the use of the conveyer of grain from the warehouse. The evidence shows that this elevator stands on ground considerably above and some distance from the river; that in transferring grain from the elevator to boats at the wharf, an inclined chute or tube, called a '“conductor,” is used for the purpose. It also appears, from the evidence and plans for the construction of the track of the road across this lot, that the track will be on trestles, and elevated entirely above the chute, and will not, in the slightest degree, interfere with its operation, or with others that may be constructed in like manner. This being the case, there can be no pretense that appellants should be paid damages for injuries that are not or can be sustained. If there is no loss there is no damage.
But it is urged that appellee could not condemn the property to be used in common with the owner of the elevator. It is, however, conceded that the right of way across a railroad track may be condemned, and used in common by both roads; and why not land on which an elevator is situated, when the road and chute from the elevator are not on the same level, and each may be used for its several purposes at the same time, as completely as if the other was not there ? Appellee only desired to obtain the use of so much, and in such a manner, as would answer the purposes of its business, and to injure the owner of the elevator property as little as practicable. The law would not permit appellee to unnecessarily injure the owner of property thus appropriated, whether owned by a natural person or a corporate body, nor can the owner recover for damages that have not and will not be sustained.
But it is urged that this only appears from the plans on which appellee proposes to construct its track over this strip of ground, and that the plans may be altered, and therefore should not have been admitted in evidence. Such evidence has been held to be admissible in a number of cases: Jacksonville and Savanna R. R. Co. v. Kidder, 21 Ill. 131; St. Louis, J. and C. R. R. Co. v. Mitchell, 47 id. 165; Peoria and Rock Island R. R. Co. v. Birkett, 62 id. 332; City of Elgin v. Eaton, 83 id. 535; Hyde Park v. Andrews, 87 id. 229. Under these authorities the evidence was admissible.
It is urged that the court erred in instructing the jury that if the evidence showed there was damage, but they were unable to ascertain the amount, then they should find for such damages a nominal sum. We perceive no objection to this, as a legal proposition. In this class of cases there is a rule by which to measure the damages. It is the loss sustained in dollars and cents, and the amount of the loss must be shown, together with its amount,—not necessarily with precision and accuracy, but approximately; and if damage is shown, but the amount is not approximately proved, there can be no more than nominal damages allowed.
It is claimed that under the evidence the finding was outrageously low. This would no doubt be true if the evidence of appellants’ witnesses were alone considered, especially of those called as experts. Their evidence, based on mere theory that did not stand the test of demonstration by actual experiment, placed the damages at vastly more than the jury allowed. The jury were fully warranted in giving but slight, if any, weight to their evidence, as it was based simply on theory and conjecture.
It is insisted that the jury did not even allow the value of the strip taken. The evidence, as it always is, was conflicting as to the value of tire land. That the land higher up, and above high water mark, was greatly more valuable, is certainly true; but this strip was between high and low water mark, and was therefore of comparatively little value. Men of experience and good judgment placed its value at much less than the jury probably allowed for it. The entire evidence considered, we are unable to say the verdict is contrary to the evidence, especially as the jury went upon and viewed the premises.
The entire record considered, we perceive no error for which the judgment of the court below should be reversed, and it is therefore affirmed.
Judgment affirmed.