delivered the opinion of the court:
This suit was brought by appellants against appellees to recover damages alleged to have been sustained to their property from the construction of an elevated railroad in *134the street upon which the property abuts. Appellants’ property fronts east on Wabash avenue, in the city of Chicago, and is situated between Jackson and VanBuren streets. Upon the request of the parties the jury viewed the premises, and appellants introduced on the trial the testimony of Christian Florup, who was engaged in the real estate business, and was, and had been since prior to the construction of the elevated railroad, agent for the property and collector of rents of the building. He was the only witness offered upon the question of damages. At the conclusiqn of the evidence for appellants, the court, on motion of appellees, instructed the jury to return a verdict of not guilty. A motion by plaintiffs for a new trial was overruled, judgment rendered on the verdict and plaintiffs appealed to this court. The court, being of opinion no constitutional question was involved authorizing an appeal direct to this court, transferred the case to the Appellate Court for the First District. That court affirmed the judgment of the superior court and granted a certificate of importance, upon which plaintiffs below brought the case by appeal to this court.
Numerous errors were assigned in the Appellate Court, but counsel for appellants states in his brief that all of them were withdrawn except those raising the question of the correct rule for assessing damages to property not taken but affected by a public use, and this is the only question discussed in the briefs in this court.
Appellees’ elevated structure was completed and the road put in operation in October, 1897. The witness Florup described appellants’ building and its uses, and the effect upon the property and its use by the construction and operation of the elevated railroad. He testified to the rentals received from the building before and after the construction of the road and the value of the property before and after its construction. He placed its value at $4800 per foot before the road was built, and testified that it did not decrease in market value by reason of the construction *135of the road. About three years after its completion the property increased in value to $6500 per foot. The undisputed evidence, therefore, was that the market value of appellants’ property was not depreciated by the construction of the road. It is claimed, however, that this was the result of general benefits common to all property in the neighborhood served by the improvement, and that such benefits should not be considered in determining the damages; that only special benefits, such as are a direct physical improvement to the property, like the draining of a wet, swampy tract of land by the improvement, or building a bridge across a stream running through the land, which enables the “owner to enjoy it with greater advantage by reason of the improvement, should be considered in determining whether the property is damaged. Appellants contend that the benefits to their property by reason of the improvement which operated to prevent a decrease in its market value were general benefits; that there were no special benefits, but, on the contrary, the improvement injuriously affected the use of appellants’ property by obstructing air and light, by noise and vibration, and by interference with access to their property, and they insist they are entitled to recover the damage thus resulting without any reference to the other benefits that may have resulted from the improvement.
This question is not a new one in this State. Since the adoption of our present constitution and the passage of the Eminent Domain act the question has been passed upon by this court a great many times. The first reported cases are Page v. Chicago, Milwaukee and St. Paul Railway Co. 70 Ill. 324, Chicago and Pacific Railroad Co. v. Francis, 70 id. 238, and Eberhart v. Chicago, Milwaukee and St. Paul Railway Co. 70 id. 347. In all three of these cases it was held the true measure of compensation for land not taken by the improvement was the difference between what the property would have sold for unaffected by the improvement, and what it would sell for as affected by it. In the *136 Francis case the co-urt said: “It cannot be said appellee has sustained damage when his property is worth and will sell for as much, or more, than if no road had been built.” That case was cited, and the rule announced adhered to, in the Page case. The decision in the Eberhart case (opinion by Justice Breese) was based upon the Page and Francis cases, and the opinion in the Page case was referred to for a discussion of the proper measure of compensation for property not taken. The rule announced in those cases has, with one exception, been followed in subsequent cases, down to Metropolitan West Side Elevated Railway Co. v. Stickney, 150 Ill. 362. That was a proceeding to condemn the right of way across certain lots, in which proceeding damages were claimed and awarded for injury to the parts of the lots not taken. The court instructed the jury that they could not consider any benefits to the property which might arise from the construction and operation of the railroad unless the evidence showed such benefits were special to the particular property and not shared by it in common with the generality of property, in the vicinity of the line of the proposed railroad. In the opinion the court reviews all its previous decisions since the adoption of the constitution of 1870 and sums up its conclusions in the following language: “It therefore follows that every element arising from the construction and operation of the railroad or other public improvement which in an appreciable degree, capable of ascertainment in dollars and cents, enters into the diminution or increase of the value of the particular property, is proper to be taken into consideration in determining whether there has been damage, and the extent of it. Thus, the situation of the property, the use to which it is devoted and of which it is susceptible, the character and extent of the business to which it is adapted before and after the construction of the public work, and, indeed, every fact and circumstance legitimately tending to show a depreciation or enhancement of the value of the *137property, are proper to be considered, so far as they tend to show the actual value of the land without and with the proposed taking for the public use, while, on the other hand, a consideration of facts or circumstances tending to show those general benefits supposed to flow to the community at large, or to the public generally, from the construction of the proposed railroad or other public work, and the effect of which, in determining the injury or benefit to the particular tract of land, cannot be other than conjectural and speculative, is excluded.”
Appellants insist this decision and others in line with it are wrong; that the rule adopted in this State is contrary to the weight of authority in other States and to the views of Mr. Lewis in his work .on Eminent Domain; also, that the rule is in conflict with Keithsburg and Eastern Railroad Co. v. Henry, 79 Ill. 290, and section 9 of the Eminent Domain act. It is quite true, the decisions in this State upon the question here under consideration are not in harmony with the decisions of courts of last resort in some of our sister States, while they are in harmony with the decisions in some States. The conflict between the decisions in this State and the decisions of other States relied upon by appellants is not so much as to a rule of law as it is to the application of the rule. This court is in accord with the cases in other States holding that only special benefits are to be considered in making just compensation for land damaged by but not taken for a public use. The difference is principally as to what are general benefits and what are special benefits. Some courts hold that only those benefits are special which directly and physically operate upon the particular property in a manner different from and not shared in common by other property in the neighborhood and which enable the owner to use it with greater advantage. All other benefits which increase the market value of the particular property in common with other property in the neighborhood are held to be general benefits. This *138view has not been adopted in this State. The rule adopted in this State is thus stated in the Stickney case: “If property is enhanced in value by reason of the improvement, as distinguished from the general benefits to the whole community at large, it is said to be specially benefited, and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may be, to a greater or less degree, likewise specially benefited. (Wilson v. Board of Trustees, 133 Ill. 443.) In other words, it is not such benefit as is special to the particular property, thereby excluding the consideration of such benefits .as are common to other property similarly situated, but is such benefit as that the particular property is by the improvement enhanced in value,—that is, specially benefited. *’ * * If a piece of property is enhanced in value, such enhancement,—or, in other words, benefit to the property,—cannot be said to be common to any other piece of property. Each piece of property especially enhanced in value is thus specially benefited within itself and irrespective of the benefit that may be conferred by the improvement upon other properties. It follows, necessarily, that where the benefits are designated as ‘general benefits,’ ‘benefits common to other property,’ and the like expressions to be found in decided cases, it is meant those general, intangible benefits which are supposed to flow to the general public from a public improvement. * * * By-a practically unbroken line of decisions in this State it is well settled that the test, under the present statute, as to whether land not taken is damaged, is the effect of the improvement upon the value of the land. Under the rule, land is said to be damaged only when there is a diminution in its value,—a depreciation in its price or worth,—and the compensation required to be made is the amount of depreciation or diminution in value occasioned by the construction and operation of the railroad, or other improvement. Special benefits are such benefits flowing from the proposed *139public work as appreciably enhance the value of the particular tract of land alleged to be benefited. As already said, the fact that other property in the vicinity is likewise increased in value from the same cause,—that is, also specially benefited by the improvement,—furnishes no excuse for excluding the consideration of special benefits to the particular property in determining whether it has been damaged or not, and if it has, the extent of the depreciation in value. * * * Hence, all imaginary and merely speculative damages or benefits are excluded from consideration. The consideration of such benefits as tend specifically to enhance the value of the particular property is not setting off benefits against the damage to the property, but is the simple ascertainment of whether the land has been, in fact, depreciated in price or worth,;—that is, whether loss or damage has resulted to the owner,—for if his property is of the same value after as before the improvement he has sustained no loss.”
The only case in this State that is out of line with the Stickney case and those previously and subsequently decided is Keithsburg and Eastern Railroad Co. v. Henry, supra, and that case has not been followed in any subsequent decision.
Counsel is in error in saying the author of the opinion in the Stickney case failed to mention section 9 of the Eminent Domain act. It is expressly referred to on page 373 in commenting upon the Page case, and that part of the section relied upon by appellants is quoted. The section was also quoted in the Page case. The Stickney case and the previous decisions, with the one exception referred to, have been since uniformly followed and adhered to. The last cases to which our attention has been called are Peoria, Bloomington and Champaign Traction Co. v. Vance, 225 Ill. 270, and Eldorado, Marion and Southwestern Railroad Co. v. Everett, 225 id. 529. In the Vance case the court said: “Since the adoption of the constitution of 1870 it *140has been -uniformly held by this court, in such cases as this, that the measure of damages to land not taken is ‘the difference in the fair cash market value of the land before and after the construction of the railroad/ or ‘the amount, if any, which lands not taken will be depreciated in their fair cash market value by the construction and operation of the proposed road.’ * * * Under the rule adopted in this State for determining whether, or in what amount, property not taken will be damaged by the construction and operation oí a railroad, any benefits which are not conjectural or speculative, and which actually enhance the market value of such property, are to be considered as special benefits and not as general benefits, within the meaning of the rule that general benefits cannot be considered in determining whether, or in what amount, property not taken will be damaged. Special benefits do- not become general benefits because the benefits are common to other property in the vicinity. The fact that other property in the vicinity of the proposed railroad will also be increased in value by reason of the construction and operation thereof furnishes no excuse for excluding the consideration of special benefits to the particular property in determining whether it has been damaged, and if it has, the extent of the depreciation in value.” In the Everett case the court said: “The real question submitted to the jury, as repeatedly stated in the decisions of this court, was the value of the land not taken, at the time of filing the petition, with and without the improvement, and the fact that other property in the vicinity is increased in value by the construction and operation of the road furnishes no excuse for excluding special benefits to the particular property in determining whether it has been damaged or not. * * * The lands, generally, along the.line in this vicinity were coal lands, and might all be benefited bj' reason of improved facilities for mining and transporting coal. Considering benefits which enhance the value of the particular property is not setting off benefits *141against damages, but is simply ascertaining whether there are damages or not. If the property is of the same value after as before the improvement the owner has sustained no loss. Damages cannot exist if the value of the property is not lessened, and the benefit which the land owner secures as an owner of the property is a special benefit. In determining whether land has or has not been damaged the jury should consider whether the market value of the property remaining will be enhanced by the improvement, although other property in the vicinity will be likewise benefited. (Metropolitan West Side Elevated Railway Co. v. White, 166 Ill. 375.) It is true that general benefits affecting the whole community, whether owners of property along the line of a railroad or not, such as increased facilities for travel, the increase of population and enhancing the general prosperity, are not to be taken into account: but benefits flowing from the proposed improvement which appreciably enhance the market value of the particular tract of land and offset injuries to it are to be considered, for the purpose of determining the ultimate question whether there are damages to the lands hot taken.”
We are not disposed now to enter upon a discussion of the correctness of the rule adhered to for forty years, nor do we feel at liberty, even if we were so inclined, to overrule the large number of decisions that would have to be overruled to justify a reversal of this judgment. The judgment is in harmony with the law in this State, and is therefore affirmed.
Judgment affirmed.