delivered the opinion of the Court:
As the lands described in the petition and cross-petition were owned by one Bennett at the time the railroad in question was constructed, and the defendants in error purchased them from Bennett subsequent to the building of the road, it is insisted that whatever damage was done to the lands •described in the cross-petition by reason of grading the roadbed and constructing the railroad, was to Bennett, and that, in the absence of all evidence on that subject, it may be presumed the railroad company adjusted the damages with him; that if Bennett did not insist upon the payment of these damages, defendants in error can not.
In Dupuis et al. v. Railroad Co. 115 Ill. 97, an instruction which declared the law to be that the cash market value of the land taken is the proper measure of damages for land taken by a railroad, and as to lands damaged, the measure of damages is the difference between the value of the land before and after the construction of the road, was held to be correct. And in Page v. Chicago, Milwaukee and St. Paul Railway Co. 70 Ill. 328, such measure of damages was expressed to be the difference between what the whole land would have sold for unaffected by the railroad, and what it would have sold for as affected by it, and the court there ■say, the damages must be for an actual diminution of the market value of the land. This being the measure of damages to land not taken, it would seem to follow that the damages thereto became fixed and determined when the railroad was constructed. The railroad was then upon the land, a permanent structure. Its damage to the land for all time was then assessable, and would have been assessed in a condemnation proceeding. The damage was then done to the land, and sustained in the depreciated value of it by reason of the railroad, and the injury was suffered by Bennett, the then owner of the lands. When the defendants came to buy the land of Bennett, they bought with the disadvantage of the railroad upon it, and with the deduction, as must be supposed, of the amount of that disadvantage. They paid the market value of the land, it must be presumed, as it then was, with the railroad upon it, and not its market value without the railroad upon it. In addition to such presumption, there is the testimony of Hamilton himself, that at the time they purchased, the land would have been worth, without the railroad upon it, $20 an acre, or at least $15; that they purchased the ,548r5Jff acres for $6500, so that if it was worth, at the time they purchased, $20 an acre without the railroad upon it, they paid $4470 less than that value; or, if the land was worth $15 an acre without the railroad upon it, there was paid $1727.50 less than such value. Defendants have been compensated for the damage of the railroad in the reduced price which they paid for the land because of the railroad being upon it, and to allow their claim for damages in this proceeding, would be giving them pay for the damages a second time, and compensation for an injury which was done to another, viz., Bennett, the former owner of the land, and who sustained the damage from it in the depreciated price which he received for the land because of the railroad.
Toledo, Wabash and Western Railway Co. v. Morgan, 72 Ill. 155, supports this view. The court there say: “It is charged the company wrongfully constructed its railroad on the lands of appellee, across the natural drains and outlets, so as to obstruct the same, whereby large bodies of water accumulated, and rendered the lands unfit for cultivation. There is a total want of evidence to support a recovery on either of these counts. The appellee did not own the lands when the company graded and constructed its road at that point. Whatever damage was done by reason uf the grading of the road-bed, was to his grantor. In the absence of all evidence on that subject, it may be presumed the company adjusted the damages with him. If the former owner did not complain, certainly his grantee can not. He purchased the land with the incumbrance of the railroad embankment upon it. It was open and visible. He could see exactly how the farm was affected by the construction of the railroad. ” Mr. Mills, in his work on the Law of Eminent Domain, sec. 66, says: “The claim for damages and of title to land may be distinct. Damages for taking and injury to land belong to the owner at the time of the injury, and do not pass to a subsequent vendee. The owner alone can take advantage of a claim for damages, and if he does not claim, his subsequent vendee can not.” And see Chicago and Eastern Illinois Railroad Co. v. Loeb, ante, 203; Kutz v. McCune, 22 Wis. 628 ; Memmert v. McKeen, 112 Pa. St. 315.
It is answered to the Morgan case, that the rule there announced does not apply here, because that was an action on the case. The principle of that decision was, that the owner of land can not recover for damages which accrued to it before he purchased the property, and would seem to apply to any case where such damages were sought to he recovered, whether in a proceeding to condemn or any other form of action.
The case of Chicago and Iowa Railroad Co. v. Hopkins, 90 Ill. 316, is relied upon by defendants in support of their claim. In that case, land was advertised for sale under a decree of court against the heirs of one Ward, and pending the advertisement of sale under the decree, and a few days before the sale took place, the railroad company entered upon the land and constructed its road over it. Hopkins purchased the land at the sale, and in the subsequent condemnation proceeding he was allowed compensation for the taking of the land by the railroad company. The court there say: “The title of the Ward heirs was unincumbered by any right of way in the company, and their title to the whole land, including the so-called right of xvay, passed by the judicial sale and deed to Hopkins. ” The title which Hopkins acquired at the sale related back and vested in him as of the date of the decree under which he purchased, so that it was his land upon which the railroad company entered and constructed its railroad, and of course it was he who was entitled to the compensation therefor. We do not consider that that case at all overrules or conflicts with the decision in the Morgan case, or is at variance with our present decision.
But what has been said is with reference to the railroad as it was then constructed, at the time defendants purchased the land. At that time the embankment of the railroad was solid and continuous over the land, or a portion of it; but since then, and after the plaintiffs came into possession of the road, there occurred a break in the embankment, which, instead of filling up, plaintiffs left as a permanent opening for the passage of water, and put in a bridge. The evidence tends to show that this opening and bridge in the embankment have been adopted by plaintiffs as a permanent feature in the construction and maintenance of their road, and that it is a cause of additional damage to the land. For any increase of damage which results to the land from this alteration in the embankment, we think the defendants are entitled to recover, and that they may do so in this proceeding, and not be put to another action for such damage, as contended for by defendants’ counsel, on the ground that a proper construction and maintenance of the embankment required the break in question to be filled up. There was not a mere negligent maintenance of the embankment, but, as the evidence tended to show, an alteration in the method of the permanent construction of the embankment by the adoption of this opening in it. And no matter whether that would be a proper construction of the embankment or not, if that was the plan of construction which the railroad company had adopted, the assessment of damages in a condemnation proceeding should be upon the basis of a road thus constructed. We think it may be treated, here, as if the application were to have the damages assessed because of the alteration in. the embankment, of this opening in it.
It follows that there was error in the court below, in not. restricting the inquiry and assessment 'of damages to the particular damages which resulted from the alteration in the construction of the railroad embankment by the adoption and. maintenance of this opening in it.
The judgment is reversed and the cause remanded.
Judgment reversed.