delivered the opinion of the court:
Appellant first contends that the peremptory instruction offered at the close of all the evidence should have been given, because the law, as heretofore announced by this court, does not permit the plaintiff to show that his property was damaged by the construction of the sidewalk.
In this connection numerous decisions of this court are called to our attention where it has been held that the determination by a village board or city council that a sidewalk shall be constructed by special taxation is a determination that the property so specially taxed is benefited to the extent of such tax, and that the question whether the decision of the village board is correct cannot be inquired into by the courts; and appellant urges that it necessarily follows from those decisions that such determination by the village board is also a finding that the property has not been damaged, and that the courts are concluded from investigating that question except in cases where the ordinance under which the improvement is made is unreasonable or oppressive.
The decisions referred to by appellant were rendered in cases which arose upon application for judgment for delinquent taxes levied under the Sidewalk act of 1875 or under other statutes providing for the making of local improvements by special taxation. They are not applicable to a case brought by a property owner to recover damages occasioned by a change of grade, even though such change of grade is made while constructing a sidewalk or other local improvements, for reasons which are apparent upon a consideration of the question.
In the case at bar, the sidewalk, without taking into consideration the change of grade, was a benefit to the property, while the change of grade, without taking into consideration the sidewalk, was a damage to that property. The village board had authority to determine the extent of such benefit, (White v. People, 94 Ill. 604; Pierson v. People, 204 id. 456;) but it had no power to determine' the extent of such damages, because the change of grade was a damage to private property within the meaning of section 13 of article 2 of the constitution of 1870, which provides that “private property shall not be taken or damaged for public use without just compensation,” and which guarantees appellee the right to have his damages ascertained by a jury. City of Chicago v. Jackson, 196 Ill. 496.
The separate consideration of the benefits derived from an improvement and the damages caused to the property from making such improvement has been recognized by this court in City of Bloomington v. Pollock, 141 Ill. 346, Harwood v. City of Bloomington, 124 id. 48, Osgood v. City of Chicago, 154 id. 194, Lake Shore and Michigan Southern Railway Co. v. Baltimore and Ohio and Chicago Railroad Co. 149 id. 272, and City of Chicago v. Lonergan, 196 id. 518.
No provision is contained in the Sidewalk act of 1875 for ascertaining the just compensation to be made for damages caused to private property by reason of changing the grade in the construction of the sidewalk, and it necessarily follows that appellee is entitled to have such damages ascertained in this suit.
The peremptory instruction was therefore properly refused.
Appellant also complains of the refusal of the following instruction:
“The court instructs the jury that it is conclusively presumed in this case that the sidewalk in question has benefited the plaintiff’s property to the extent, at least, of that part of the cost of said sidewalk which the ordinance in this case provides that plaintiff shall pay.”
It was not error to refuse this instruction, for the reason that it stated an abstract proposition of law which was apt to mislead the jury without a further statement in the instruction telling the jury what application they should make of the principle of law announced by the instruction.
The court gave to the jury, on behalf of appellee, an instruction stating that before making any deduction of benefits from damages they should first subtract from the benefits the amount of the special tax which had been charged against plaintiff’s property. This instruction is objected to on the ground that there was no evidence that appellee had paid the tax or that the county court had rendered judgment against the property therefor. This point is without merit. The plaintiff was liable to pay the special tax mentioned in the instruction to the collector holding the warrant for the collection thereof, and in default of such payment to have his property returned delinquent and sold to satisfy the tax. This case was tried on the theory that the ordinance under which the sidewalk was built was valid. A stipulation was made in the trial court between the parties hereto that the ordinance was legally passed and published. Plaintiff would therefore be estopped from urging that the ordinance was invalid upon application for judgment and sale of his property for the satisfaction of this tax. We think it is immaterial whether the tax had been paid or whether judgment had been rendered for it if the plaintiff is liable to pay the tax, and this is the only difference between this instruction and one which was approved in City of Bloomington v. Pollock, 141 Ill. 346. For the same reason it was not error to refuse the instruction offered by appellant to the effect that the jury should not take into consideration the special tax in estimating the damages to be awarded to plaintiff.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.