The statute of limitations might have been successfully interposed, if the suit had been based on injuries, alleged to have arisen from the hammer shop which was erected in 1871. No damages are sought to be recovered on that account, nor does the record show clearly that the shop as originally built and operated, injuriously affected the plaintiff in person or property. In the absence of evidence it would be presumed no injury was occasioned thereby. The removal of the shop, in 1886, to a point almost contiguous to appellant’s residence, and the enlargement of its machinery so as to increase the vibratory action and other offensive features, was alleged to be a fresh and distinct act of appellant, which was not even in part protected by the statute of limitations.
The contrary theory, that the statute was a bar as to so much of the injury as was caused by that part of the works operated by the American Bridge Company for more than five years before the commencement' of this suit, was rightly rejected by the trial court. The case presented was not the magnifying of an existing nuisance, but the act complained of is the original creation of a nuisance disconnected from all preceding acts of the defendant. This is the true view of the case unless the effect upon plaintiff’s property, of the operation of the hammer shop as originally erected, was precisely the same as the operation of the same hammer in the new shop. Whether the effect was the same, was a question of fact for the jury, which was not submitted to them by the instruction requested by defendant on this branch of the case, and for that reason the instruction was properly refused.
The ninth instruction as asked by defendant was as follows:
“ The jury are instructed that in this case the measure of damages to which the plaintiff is entitled can not exceed the depreciation, if any, in the market value of his property caused by the operation of defendant’s works. If the jury believe from the evidence that the plaintiff’s .property would sell for the same amount as before the operation of defendant’s works, independent of a rise in similar property, then the verdict must be for the defendant.”
The trial court refused to give this instruction in that form, but gave the following as a substitute therefor:
“ The jury are instructed that the plaintiff’s claim of damages is made on the ground that the operation of defendant’s works has depreciated the selling value of his property. If the jury believe from the evidence -that the operation of defendant’s works' has not depreciated or impaired the value of the plaintiff’s property.or its enjoyment as alleged by the plaintiff in his said declaration, then the verdict must be for the defendant.”
Appellant complains that this charge pérmitted the jury to find a verdict for plaintiff, if they believed defendant’s works diminished plaintiff’s enjoyment of his property, even though they increased its value. A number of authorities are cited in support of the proposition that as appellee has elected to treat the injury complained of as permanent, the action is of the nature of a condemnation suit, and his recovery must be limited to the depreciation in value of his property, and can not include damages for personal annoyance, discomfort or interference with his enjoyment thereof. However that may be, appellant has barred itself of any advantage it might otherwise have taken of this action of the court, by requesting another instruction involving the same theory of damages to the enjoyment of the premises. Having encouraged the court to adopt that view of the case, the appellant can not complain of the result. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358; Willard v. Swanson, 22 Ill. App. 424
The following instruction, numbered ten, asked by defendant, was refused by the court:
.“The jury are instructed that under the declaration in this case, the plaintiff’s claim of damages is made on the ground that the operation of defendant’s works has depreciated the selling value of his property. If the jury believe from the evidence that since the operation of defendant’s works the selling value of the plaintiff’s property is higher than before, and that the operation of defendant’s works has contributed to that increase of value in the plaintiff’s property by reason of its nearness to the works, then the verdict must be for the defendant.”
At the trial, evidence was given tending to show serious damage was caused by the operation of defendant’s works to the plastering and paint on plaintiff’s house. According to the terms of the instruction, any contribution, however small, by the operation of defendant’s works, to the supposed increase in value of plaintiff’s premises, should be considered by the jury as an offset to any damages, however large, caused by the works to plaintiff’s house. The unfairness of the proposition is apparent. There was no error in the refusal of that instruction.
Finding no error in the record, the judgment is affirmed.
Judgment affirmed.