The questions presented by this record arise from the pleadings, which are quite voluminous. The averments of appellant’s declaration are, in substance, that he was the owner of a lot, number 3, in block 5, in Church & Robinson’s addition to the city of Rockford, abutting on Winnebago street. That appellee, in 1883, had permitted some railroad companies to construct a viaduct in said street, thirty feet wide, twenty feet high and 800 feet long, north of appellant’s premises, to permit cars and railway trains to pass under it in crossing that street, with a southerly approach thereto' for the public use and travel on that street, and had fixed a grade of the street, and, in conformity thereto, appellant had, in September, 1884, erected three dwelling houses fronting upon that street, with basements, corresponding to the surface grade of the street; that the viaduct was constructed pursuant to the ordinances of appellee, and that the “ fee” of the street was in the city of Rockford; that the doors and windows of the said dwelling houses, so erected, were fronting upon and faced Winnebago street. The grievances complained of are that in August, 1887, the appellee, by its ordinance, permitted the said viaduct to be further extended southward for a distance of 300 feet, and in front of two of said houses, so erected by the appellant, thereby obstructing the egress and ingress to and from the two north dwelling houses, to and from Winnebago street; that by the extension of the southerly approach to the viaduct, the grade of the street has been raised in front of appellant’s two north dwelling houses, obstructing the light from the windows of those dwellings, causing dust and noxious substances to be blown into the windows and doors of the said dwellings, and greatly depreciating the rental and actual value thereof, and of great damage to appellant. It is further averred that the extension of the viaduct in 1887, in front of the dwellings of appellant, was not necessary, either for the public use and travel of Winnebago street, or for the corporate purposes of the city of Rockford.
The original declaration contained three counts. The second count was withdrawn by appellant by leave of court. The first and third counts were in substance alike. The appellee pleaded the general issue, and three special pleas thereto; to these special pleas appellant demurred', and the court sustained the demurrer to the first and third special pleas, and held the second special plea good.
The plea to which the demurrer was overruled by the trial court was, in substance, that the Chicago, Madison & Northern Railroad Company, with lawful power so to do, with right to take and damage public property therefor by eminent domain, was constructing a railroad across lot three (3), described in the declaration, and across other lands of appellant adjoining it, and which constituted therewith one property, and across Winnebago street west from lot three (3), upon such a line and grade as had been theretofore established according to a survey theretofore made, and which line and grade so established was designated on grade stakes set up on its line of such survey, on the appellant’s land, duly marked, showing such grade, which construction upon such line and grade was of such a character as to entirely cut off and stop travel on Winnebago street, unless a viaduct should be constructed therein, over and across the proposed railroad, at a great height, to wit, twenty-two feet above said street, so as to permit the passage of trains and cars thereunder, and public travel thereon, together with a southerly approach thereto ; that the railroad company was about to construct its railroad so established, and the viaduct across Winnebago street (as a necessary incident thereto, which, by law, it was required to do, in the construction of its road), and in such a manner that appellant’s lands were necessary to such construction, and so that appellant had a right to withhold his land until his damages for such viaduct were paid, and that appellant, with knowledge of the premises, before the committing of the grievances complained of, for the consideration of §55,000, sold and conveyed to the railroad company, by deed, duly executed and acknowledged, a large part of the said lot three (3), describing the part, and other lands; which conveyance was so made for the purpose of enabling the railroad company to construct its railroad and all necessary adjuncts thereto, and all necessary structures therefor ; that the railroad company did construct said viaduct in a proper and skillful manner, doing no unnecessary damage to the appellant, which is the grievance complained of.
Subsequently, and at the April term of the Winnebago Circuit Court, appellant by leave filed an additional count to his original declaration. In this count appellant avers that on or before the date of his deed of conveyance to the railroad company, above stated, December 29, 1886, he was the owner of the lot three (3) in question; that the lot abutted on Winnebago street, and on a level therewith; avers that on the 1st day of December, 1886, the appellee, having control of said street, by its ordinance authorized and permitted the Chicago, Madison & Northern Railway Co. to enter into possession of that street, and to erect a superstructure or approach to the southern end of the viaduct, then upon said street. And in pursuance thereof, the said railway company entered into possession of said street and obstructed the same in front of and along appellant’s land, with such superstructure, by means whereof the tenants occupying the two north dwellings upon said lot vacated the premises, and appellant was unable to obtain other tenants therefor, and the same have become and are unproductive in consequence of the noise and confusion, falling of dirt and dust caused by the travel in the said street over the viaduct, and the value of said buildings is greatly depreciated; avers that said superstructure was not necessary for any purpose of public travel over said street; that the ordinance allowing such use to the railway company was passed ¡November 30, 1886, and approved December 1, 1886, and sets out the ordinance.
It is further averred that the land purchased by the railway company from appellant was filled in some six feet in height within the railway company’s right of way on both sides of Winnebago street, which filling elevated said viaduct and thereby prolonged the approach thereto on the south unnecessarily in front of appellant’s said dwellings, and from no necessity of public travel upon the street or use for the corporate purposes of appellee, by means whereof the rental and market value of appellant’s two north tenement houses situate upon said lot are permanently injured and damaged to the amount of S3,000.
To this additional count, appellee filed the general issue and one special plea, in which special plea appellee sets out the same alleged facts in substance and effect, but more in detail, as it had before interposed in its second special plea to appellant’s original declaration as above set forth. To this special plea appellant replied, “de injuria,” and upon the filing of that replication appellee demurred, specially assigning as cause of demurrer, among other causes, that the special plea set up and stated a positive legal right in the railway company to erect and maintain the structures complained of in the appellant’s declaration, and not mere matters of excuse. The trial court sustained the demurrer.
Thereupon appellant filed a special replication to appellee’s second special plea to the first and third counts of the original declaration, and also replied specially several matters, by leave given, to appellee’s special plea to the additional count of appellant’s declaration, and joinder upon the appellee’s plea of not guilty.
Both of the above special replications of appellant conclude to the country, and to each appellee interposed a special demurrer which the trial court sustained, whereupon appellant abided his replication and prosecuted this appeal.
Two questions are made upon this record by counsel for the respective parties, which we are asked to consider: First, were the pleas interposed to the original declaration and the amended count thereof, as pleaded, sufficient to bar a recovery; and second, were the replications filed thereto obnoxious to the demurrers interposed as held by the trial court.
First. It is a well settled rule of law that a city has absolute control over the grade of its streets; it can make the grade light or heavy, and elevate and lower it at pleasure, and adjacent lot owners can not call it to account for errors of judgment in these respects or demand damages because they may incur inconvenience or expense in adjusting the level of their own premises to that of the 'street, for the purpose of ingress or egress thereto. It has the same power, and no more over its streets, that a private individual has over his own land, but it can not be permitted to exercise such dominion to the injury of another’s property in a mode, or to such, an extent, as would render a private individual responsible in damages, without being itself responsible. Nevins v. The City of Peoria, 41 Ill. 502, and cases cited.
In the case at bar the averments of the pleas are, that the Chicago, Madison and Northern Railroad Company, with lawful power so to do (setting out such corporate power),, were constructing a public railroad, the line for which had been previously surveyed and located, under and pursuant to the powers granted it, through the city of Rockford, crossing Main and' Winnebago streets in that city; that appellant’s lot 3 in block 5, here in question, abutting on Winnebago street on the east, and the lands between Winnebago and Main street for a distance of 48 rods, were owned by the appellant and his wife, and constituted hut one property and body of land, over and across which the line of said railway had been prior thereto surveyed and-located, which line was indicated by stakes driven in the ground, upon which were marked and indicated the proposed grade of its road when constructed. The line so located by its surveys crossed Main street atgrade, and thence westerly across the lands of appellant and those of his wife to Winnebago street, at the point of intersection with which last named street and along the westerly line of appellant’s lot 3, extending north, there was then existing and for several years prior thereto had existed, a viaduct in said Winnebago street with a graded southerly approach thereto, erected by the city for the crossing of said streets by other railroads and passing engines and cars thereof thereunder, which was twenty-two feet above the grade of Main street, and it thereby became impracticable to construct and operate its said railroad upon the grade and line of its survey, without cutting off that viaduct and its approaches thereto, rendering it impassable for public travel and use until a new viaduct could be constructed, from such existing viaduct south, with a new approach thereto, to accommodate public travel upon Winnebago street. That the railway company were bound by law to restore such street to its former state of usefulness without unnecessary damage thereto, which required it to construct an extension of the then existing viaduct and suitable and proper approaches thereto, and for that purpose made application to the city to designate the methods and plans for the construction thereof, which it was the duty of the city to do and which duty and obligation the city discharged by its public ordinance, passed November 30,1886, approved December 1,1886, (and recited in the record before us,) in and by which ordinance, permission and authority were given to said railroad company to construct its railroad crossing over Main street at grade, and to elevate and extend the viaduct on Winnebago street, as the same was thereafter elevated, extended and constructed; that such elevation, extension and construction was a necessary incident to the construction and proper operation of said railway, and the only proper means of restoring Winnebago street to its former usefulness as a street for public travel. That the damages caused thereby to appellant’s lot 3, and land, were such that he had a right to withhold his said lot and land from use by said railway company until the same should be paid, and were such that in condemnation proceedings he would have been entitled to have had definite plans and specifications of such viaduct and the approaches thereto abutting appellant’s said lot, and all his damages paid; and that after the said survey had been so made and its line of railway established, and the stakes over appellant’s land on such line had been driven, showing its line and grade, and after the application by said railway company to said city as aforesaid, and the passage and approval of the ordinance thereof as before stated, and with full knowledge and notice thereof, on the 26th day of December, 1886, the appellant and his said wife, by deed in writing by them duly executed and acknowledged, conveyed to the said railway company the said body of land from Main to Winnebago street for the purpose of construction thereon by the railway company of its depots, buildings and structures necessary and needful in constructing and operating its railroad, including in such conveyance a large part of the said lot 3, for the consideration of §55,000, then paid appellant therefor by the railway company, by means whereof said pleas averred that the appellant conveyed to the railway company the. right to construct and maintain its railroad structures, including the said viaduct and the extension thereof, pursuant to the ordinance of said city, and then avers that such grant and conveyance to said railway was made by appellant and his wife long after the location of its said line, of railway, survey, and establishment of its grade through and across Main street and the lot and lands of appellant and his wife, by its engineers, and the ordinance of said city, raising the said viaduct and extending the southerly approach ther eto, and avers the construction of the viaduct by the railway company, its necessity, and that no unnecessary damage was done, etc., and that nothing was done but what was the duty of the city to require in such construction, and that the erection of such viaduct and extension of the approaches thereto, were the only grievances complained of, etc.
That it was the duty of the city, upon the application of the railway company, to grant permission to construct and operate its railroad through that city, and across the streets thereof, and by ordinance or otherwise, supervise, control and direct the construction and maintenance of such crossings so as to secure and protect the rights of the public in the free use and enjoyment of the streets, and the property owners abutting thereon, will scarcely be denied. Olney v. Wharf, 115 Ill. 519.
That in the discharge of such duties, regard should be had to the needs and requirements of all its citizens and not to the special interests of any one of them is evident. The right of' eminent domain is guarded by constitutional limitations requiring just compensation to be made to' the owners of property taken or damaged by its exercise.
This compensation must be ascertained by agreement, when possible; condemnation can be had only in case of disagreement.
It would seem to follow that such agreement, however evidenced, should receive as liberal construction, and be given as broad a scope in application, as its substitute, i. e, condemnation proceedings.
Under the averments of the plea in the case at bar, if true, and we must so regard them in this investigation, it would be scarcely credible that the appellant made the conveyance of the larger portion of the lot'in question, with the other land of his wife, with the grade stakes thereon, indicating the crossing of Main street at grade, at so short a distance from Winnebago street, at the point of intersection with its proposed line of construction, at which point was then existing a viaduct of more than twenty-two feet in height, and after the city had, by its public ordinance, determined the method of such crossing, and authorized the extension of the approaches thereto, extending such approaches to the tenement building of appellant, then erected and in use, without full knowledge, or at least without knowledge of such facts as should have put him on inquiry of the elevation and construction of said viaduct and the consequent extension of the approaches thereto and the damage to his dwellings, if any, occasioned thereby. But, be that as it may, it is distinctly averred in the pleas that appellant was in possession of actual knowledge of all the facts, and with full knowledge thereof made the conveyance to the railway company for the consideration therein mentioned.
It is true that the deed of conveyance made no mention of the purposes for which the land conveyed thereby was to be used, but it was made to the “ Chicago, Madison & Northern ¡Railroad,” as it is averred, and, by law, railroad companies had power only “to purchase, hold and .use real estate * * * for the construction and use of its railroad and stations,” etc. (Sec. 20, Chap. 114 R. S.; Sec. 5, Chap. 32 R. S., Starr & Curtis), and appellant was bound to know the law.
Pierce on ¡Railways, at page 133, states the following rule:
“ A deed of land to the company for its location, is presumed to include a license to do whatever is lawful in the construction and management of its road, to the same extent and with the same effect as if the land had been compulsorily taken, and it is therefore construed to release a claim for injuries (damages) to the lands of the grantors, or for other damages to which the grantor would have been entitled, if the land had been taken by proceedings in invitum, to sustain which he cites Norris v. Vt. Cent. R. R., 28 Vt 99; Rood v. N. Y. & E. R. R., 18 Barb. 80; Conwell v. Springfield & Nor. R. R., 81 Ill. 283; Hartsman v. Lex. & Cov. R., 18 B. Monroe, 218, and Booth v. Androscoggin R. R. Co., 51 Maine, 318.
Judge Redfield, in his treatise on the law of railways, Vol. 1, pages 218, 219 and notes, says: “ In case of a deed to a railway company of land on which to construct its road, the assent of the company will be presumed, and it will be bound to the conditions of the grant;” and in foot note 6:. “And the rights and duties of the company in such case are precisely the same as if the land had been condemned by proceedings in invitum, under the statute. Such a grant carries with it the incidents necessary to its full enjoyment.” Citing in support thereof, Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99; Hartsman v. Lex. & Cov. Ry., 18 B. Monroe, 218; Louisville & Nash. Ry. v. Thompson, 18 B. Monroe, 733.
In Rorer on Railroads, Vol. 1, 324, it is said, after stating the well known rule of damages in condemnation suits by proceedings in invitum, in a foot note to the text, “And this is so, too, when the right of way is acquired by purchase.” Citing, in addition to those above cited, Ludlow v. Hudson R. R., 6 Lansing, 128; Hatch v. Vt. Cent. Ry., 25 Vt. 49, and J. N. & S. Ry. v. Cox, 91 Ill. 500.
We think the rule stated in the text books above referred to is fully sustained by the authorities cited by the learned authors above quoted.
To the cases above cited might be added the following cases: N. & W. Ry. Co. v. Swank, 105 Penn. St. 555; Hodge et al. v. Lehigh Valley R. R., the opinion in which last case was filed April 29, 1889, reported in Federal Rep. Vol. 39, pages 449 to 456, and in which cases the questions involved m the case at bar are fully discussed and determined in full accord with the views above expressed.
We regard it as settled beyond question that in proceedings in invitum in which damages are assessed, conducted in pursuance of law and without fraud, constitute a bar to an action for all injuries which could legally be included in such assessment. The award in such proceedings is regarded as a judicial act, and, unless appealed from, like a judgment at law, becomes res adjudicate and can not be impeached collaterally.
We think the damages claimed in the suit at bar would have been embraced properly, as well as legally, in the damages in condemnation proceedings, under the act of eminent domain.
The right alleged to have been invaded by appellant was one appurtenant to the whole of lot 3, the greater portion of which is averred to have been conveyed to the railway company for the purpose of construction and use of its railroad; and in condemnation proceedings, by the taking for the construction and maintenance of its road over said lot, appellant would have been entitled to all damages sustained, not only by the taking of that part of the lot conveyed, but all the damages’ caused by the construction, as well as the use, of a railroad to the remaining portion of said lot appurtenant to Winnebago street, whether such damages arose from embankment, or excavation, or in the construction of a viaduct in the approach thereto in Winnebago street, as should be necessary and proper to be made in such construction and maintenance. It is to be observed that appellant, in his declaration, does not aver or complain that the location of the line of railway,, its grades or the construction thereof was not in all respects proper and necessary, and the result of good engineering, nor that the viaduct and the southerly approach thereto were not constructed in the most suitable and proper manner, and necessary to be erected and maintained to subserve the use of the street by the public; but the complaint is that a fill of six feet from Main to Winnebago streets created the necessity of raising the viaduct in Winnebago street, and the consequent extension of the approach thereto. It will be further observed that the pleadings disclose that the crossing of Main street at grade was fixed by the city, and it is to be presumed was done in the interest of its citizens and the public in the use of that street, and that good engineering required the fill of six feet for the proper construction of the railway; besides, it is alleged, complainant was fully apprised as to the location of the line of railway and its proposed grade of construction, and consequent necessity of elevating the viaduct and the approaches thereto, at the time of the execution of such conveyance. Appellant should not be favored in splitting up his damages. In whatever was the manner of that adjustment, it should be regarded as final. The appraisement of damages in proceedings in invitum embraces all past, present and future damages which the improvement may thereafter reasonably produce. Mills on Eminent Domain; C. & A. Ry. v. S. & N. W. Ry., 67 Ill. 142; K. & E. Ry. v. Henry, 79 Ill. 290; Sioux City R. R. v. Weimer, 16 Neb. 272; Parker v. Boston & N. E. Ry., 2d Cushing R. 116; Buckner v. C., M. & St. P. Ry., 56 Wis. 403; N. & W. Branch R. R. v. Swank, supra; Norris v. Vt. Central R. R., 28 Vt. supra; Hodge et al. v. Lehigh Valley R. R., supra.
If we adopt the canon of construction claimed by the learned counsel for appellant in the exhaustive argument before us, the same result follows. It seems to us, therefore, that the facts averred in the pleas interposed by the appellee, by necessary legal implication, show full and legal satisfaction for the damages complained of in the declaration, and each and every count thereof, and constitute a legal bar to the action and were properly pleaded, and that the trial court rightfully so held.
Second. Were the replications filed thereto obnoxious to the demurrers?
To the first plea, above, as stated, the appellant filed the replication, "de injuria.” This replication is not proper in a case where the plea to which it is interposed, sets up some authority in law, which prima facie would be a legal defense or justification for the act complained of.
The appellant will not be allowed to enter the plea to show an absence of that authority so as to convert appellee into a tort feasor, db initio, 3 Vol. Bouvier’s Institution, title, “ De Injuria; ” 1st Smith’s Leading Cases, 53 to 61. The plea here shows authority in law under the ordinance of the city and also by a deed from appellant to railroad company to make the viaduct, and necessarily the approach thereto. The demurrer thereto was, therefore, rightfully sustained. This defense as set up in the pleas is in the nature of an estoppel, or authority by the appellant to the railroad company to build the viaduct and approach thereto, in consideration of an amount of money paid by it to him for a deed of certain real estate and right of way, including consequential damages to his remaining property, caused by the injury complained of. The plea is not pleaded as an excuse, but in assertion of a claim of legal right and is therefore a plea to which the general replication, "de injuria ” could not be pleaded. Stevens on Pleading, 163, 164, original paging, 8th Am. Ed.; Allen v. Scott, 13 Ill. 80, and cases cited.
The other two replications are improper. They take issue with no proper allegation of the plea. In a legal form, it seemingly is an attempt to set up matter which should have been alleged in the declaration, if requisite or proper to be set up at all; are argumentative, and do not appear to contain any of the legal elements of a replication at law. The jilea, as we have attempted to show, in our judgment, set up a jierfect defense to the action, as set forth in the declaration, and there being no replication adequate or proper to overcome the defense interposed by the pleas, which stand admitted, the judgment of the trial court in favor of that defense set up by the pleas was therefore proper, and we must so hold.
The judgment of the Circuit Court is affirmed acc irdingly.
Judgment affirmed.