delivered the'opinion of the Court.
Henry and John Herrmann sued the city of East St. Louis in an action on the case for damages to their property, situated in that city, arising from the construction of a viaduct in and over the street in front of their property for the use of the traveling public in crossing Cahokia creek and certain railroad tracks. The viaduct in front of the property in question was eighteen feet above the grade of the street and thirty-six feet wide, and was calculated to cut off free access to the property and in many other ways to interfere with the use and enjoyment thereof. A verdict was returned in favor of the city, and this appeal has been prosecuted from the judgment rendered on that verdict.
The record is voluminous, but the case may be disposed of without a detailed statement of the evidence produced upon the trial.
The court, at the request of the city, gave the following instructions to the jury :
“ The court instructs the jury that the question to be determined is whether the property in question has been damaged by the viaduct; if not, then there can be no recovery. If the jury believe from the evidence said property was worth as much after said viaduct was built as before, then no damage can be said to have accrued thereto. There can be no damage to property without a pecuniary loss. If there has been no depreciation in the market value of the property, there is no damage and should be no recovery.”
“The court instructs the jury that the measure of damages is confined to the difference between the market value of the property just before and after the building of the viaduct in question. And if the jury believe from the evidence that the market value of the property now is the same or greater than just before building the viaduct then the jury will find for the defendant.”
The measure of damages thus laid down was reiterated in other instructions given at the request of the city, and the instructions given for the Herrmanns were so modified as to announce the same doctrine. In fact, the rulings of the court on this point were consistent throughout the trial. In passing upon the evidence it was repeatedly stated and held by the court that the measure of damages was the difference between the market value immediately before and immediately after the construction of the viaduct, and this, although the construction of the viaduct may have been an absolute damage, and the market value may have been kept up, in spite thereof, by the general appreciation of property resulting from other causes.
The Herrmanns contended that extensive improvements, aside from the building of the viaduct, were in progress in the city, the effect of which was to enhance the value of property very considerably; that if these improvements had not been made, the building of the viaduct would have caused the property of the Herrmanns to become greatly depreciated in value; and that it was only because of the general appreciation of property from all these improvements, that appellant’s property in question continued to be worth in the market as much after the viaduct was built as before.
Some evidence tending to support this theory ‘crept into the record, notwithstanding the vigilance of the court in excluding such evidence from the jury. Some such evidence was excluded by the court of its own motion, against the objection of plaintiffs in error. The case may be properly considered on the theory that there was evidence actually before the jury, or which would have been before the jury but for the rulings of the court, tending to show that extensive improvements, other than the building of the viaduct in question, were going on in' the city, whereby there was a general rise of value throughout the city, affecting the property of plaintiffs in error, and that but for this general appreciation of values, the property in question would have been worth less after the construction of the viaduct than before.
If these are the actual facts, why are not the Herrmanns entitled to damages ? All other citizens enjoy the benefit of a general rise of values; but these two, whose property receives no special benefit, who pay taxes for the general improvements, are to be shorn of their advantages from general appreciation by having such increase of value set off against their special damages. That is to say, as has been suggested in the argument, if a certain man has one hundred bushels of corn worth fifty cents per bushel, and another takes fifty bushels from him, the owner is not damaged provided the price of corn should increase to one dollar per bushel! Can this be the law ? We think not.
It may be admitted that in many cases the difference in market value before and after the improvement, furnishes a sufficiently accurate rule for the ascertainment of the damages. Generally, the property does not rise in value to any appreciable extent from other causes during the progress of the work which produces the damages. But suppose a case in which the general growth of the city doubles the value of the property while the particular work is progressing; is the owner to have this general enhancement of values set off against his special damages? Is it more in accordance with the principles of justice to say that, inasmuch as the damages to which one is entitled must be special damages to his property from the particular work, and not damages suffered by the community generally, or arising from other causes, so the benefits set off against such special damages must be special benefits, and not a general appreciation of property arising either from the particular work, or from independent causes.
It seems to be the well settled law of this State that any mere general and public benefit or increase in value received by the property in common with other lands in the neighborhood, should not be taken into consideration in estimating the damages. Page et al. v. C., M. & St. P. Ry. Co., 70 Ill. 324; C. & E. R. R. Co. v. Blake, 116 Ill. 163; Village of Hyle Park v. Washington Ice Co., 117 Ill. 233; Washington Ice Co. v. City of Chicago, 147 Ill. 327; City of Bloomington v. Pollock, 38 Ill. App. 133, affirmed in 141 Ill. 346.
The case of Springer v. City of Chicago, 135 Ill. 552, holds no more than that, in estimating benefits and damages to property not taken, the whole of the particular improvement should be considered, on the ground that part of it might prove a damage, while the entire improvement might prove a benefit. This is but fair, and in no manner contravenes the view of the law announced in this opinion, in which it is held that a general appreciation of property, arising either from a particular work or from independent causes, can not be allowed as a set-off against damages produced by the particular improvement.
For the errors indicated the judgment is reversed and the cause is remanded.