delivered the opinion of the court:
The case of Illinois Central Railroad Co. v. City of Chicago, 141 Ill. 586, in which the same extension of these streets was involved, fully sustains the ruling of the court below in denying the motion of appellant to dismiss the proceeding. In that case, among other things, it was said: “So far as the extension of Eighty-second and Ninetieth streets is concerned, the language of paragraph 89 is broad enough to authorize the extension across the railroad ‘yard’ as well as across the tracks or right of way.” And since the motion to dismiss was unadvisedly filed, it necessarily follows that all evidence offered in support of it was properly excluded.
The exclusion of the offered testimony of the witnesses Peirce and Morehouse presents a more troublesome question. When the streets are' extended across the right of way the city will not have the exclusive use of those parts of it, within the lines of the streets, where no tracks are laid. Its rights over those parts will be no greater than its rights are in respect to the parts where the tracks are laid. The company may still go on, notwithstanding the extensions of the streets, and put down additional tracks upon the now unoccupied parts of the right of way, or use such parts for any other railroad purpose that would be consistent with a joint use by itself 'and the city. But at the same time, the fact that such parts were used for public streets would necessarily prevent their being used for erecting thereon depots, warehouses, grain elevators, or any like structures for railroad, purposes ; and there can be no question but that the company, under its charter, has the right to locate upon the parts of its right of way sought to be taken for the streets, not only structures such as are mentioned above, but any “other buildings necessary for the construction, completing, altering, maintaining, preserving and complete operation” of its railroad. (Laws of 1851, p. 61, sec. 3.) The extension of the streets across the right of way, then, deprives the company, in part, of its property rights in respect to portions of the land within the lines of the streets.
The constitution of the State provides thát “private property shall not be taken or damaged for public use without just compensation.” In Rigney v. City of Chicago, 102 Ill. 64, this court said: “Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which it is used in the constitution.” It is to be noted that the lands here sought to be condemned for the streets are devoted to a special use, and therefore have no market value.
In Lake Shore and Michigan Southern Railway Co. v. Chicago and Western Indiana Railroad Co. 100 Ill. 21, we said, that although the right of way is limited to the use of the land for the construction, maintenance and operation of a railroad upon it, yet this limited use is property, and as much so as if the use were an absolute one; and further said, that the land was devoted to a special use, and that estimates of its value with reference to such use, by those competent to speak in that regard, should have been received.
In St. Louis, Jerseyville and Springfield Railroad Co. v. Kirby, 104 Ill. 345, it was said that the value of land consists in its fitness for use, present or future, and that before it can be taken for public use the owner must have just compensation.
In Chicago and Evanston Railroad Co. v. Jacobs, 110 Ill. 414, it was held,—citing Haslam v. Galena and Southern Wisconsin Railroad Co. 64 id. 353,—that reference may be had not merely to the uses to which the land is actually applied, but that its capacities may also be taken into consideration.
In Johnson v. Freeport and Mississippi River Railway Co. 111 Ill. 413, the rule was formulated by the late Chief Justice Scholfield thus : “If property has a special value, from whatever cause, that special value belongs to the owner of the property, and he is entitled to be paid it by the party seeking condemnation. In determining the value of real property, in such cases, to the owner, witnesses may give their opinions, and any special circumstances upon which those opinions are founded, for what they are worth.”
In Dupuis v. Chicago and North Wisconsin Railway Co. 115 Ill. 97, this court held that if lands are devoted to some particular use, and in consequence of such use have an intrinsic value, the owner, in order to get just compensation, is entitled to receive whatever they are worth for the use or purpose to which they may be devoted. And in Calumet River Railway Co. v. Moore, 124 Ill. 329, it was held that the fact that the lots there in question were located with a frontage on the river, at a £>lace where they could, at some future time, when demanded, be made available as dock property, thus enhancing their present value, would be competent and proper to be shown, and be considered by the jury in estimating the damages ; and it was there said that it can make no difference that there might be no present demand for docks upon these lands.
The logic of the law and of our former decisions leads irresistibly to the conclusion, that in the case at bar the trial court erred in excluding the proffered testimony of the witnesses Peirce and Morehouse. And see, in this connection, the late case of Lake Shore and Michigan Southern Railway Co. v. City of Chicago, 151 Ill. 359.
It is urged that when it is considered that the strips of ground sought to be condemned for the streets are but parts of the continuous right of way of the railroad company, it is apparent that the evidence sought to be introduced was clearly fictitious and speculative. We do not see how we could arrive at any such conclusion as matter of law. If the parts of the land not occupied by tracks, and proposed to be taken for the streets, are but portions of the continuous right of way of the company within the limits of the city, and are no better adapted, on account of particular locality or from other causes, for depots, warehouses, engine houses, shops or other structures for railroad purposes, than are the other unoccupied parts of the continuous right of way, then that presents a question of fact, and is a matter for the consideration of the jury or trial court in determining the amount of the compensation or damages.
As we understand the second proposition of law that was tendered by appellant, it involves the same question that arose in regard to the evidence of Peirce and More-house. This being so, it was error to refuse to hold the same.
Other objections are raised by appellant to the judgment and to the rulings of the trial court; but like objections have been overruled by this court in numerous recent cases, and it is not deemed necessary to restate the grounds of those decisions. It is not considered that anything held in this case is in conflict with the decisions of this court in Chicago and Northwestern Railway Co. v. City of Chicago, 140 Ill. 309, and subsequent cases of like character.
For the errors indicated herein, the judgment of the Superior Court is reversed and the cause remanded.
Reversed and remanded.