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then it is not damaged. If the benefits received from the making of the improvement are equal to or greater than the loss there is no depreciation in the value. There can be no damage to the property without a pecuniary loss. If property is enhanced in value by reason of the improvement, as distinguished from a benefit to the whole community at large, it is said to be specially benefited, notwithstanding that other pieces of property upon or near the improvement are likewise specially benefited. Each piece of property especially enhanced in value is thus especially benefited within itself, irrespective of the benefit that may be conferred by the improvement upon other properties. By the term "general benefits," as used in the decided cases in this State, is meant those general, intangible benefits which are supposed to flow to the general public from a public improvement. The effect of such general benefits upon a particular piece of property would, however, be impossible of ascertainment in money value, and therefore too speculative to be considered on the question of damages to the remainder. The fact that other pieces of property in the vicinity are also specially benefited by the improvement furnishes no excuse for excluding from consideration special benefits to the particular property in determining whether or not it has been damaged, and if it has, the extent of the depreciation. If property is increased in value by an improvement it is a special benefit to the property. The benefit must be such as affects the market value of the land, and where this market value is increased as the effect of the improvement a special benefit results. Any benefits which are not conjectural or speculative and which enhance the market value of such property are to be considered as special benefits and not as general benefits. Special benefits do not become general benefits because they are common to other property in the vicinity. (Metropolitan West Side Elevated Railway Co. v. Stickney, 150 Ill. 362; Metropolitan West Side Elevated Railroad Co. v. White, 166 id. 375; Davis v. Northwestern Elevated Railroad Co. 170 id. 595; Fahnestock v. City of Peoria, 171 id. 454; City of Chicago v. Lonergan, 196 id. 518; Peoria, Bloomington and Champaign Traction Co. v. Vance, 225 id. 270; Eldorado, Marion and Southwestern Railroad Co. v. Everett, 225 id. 529; Brand v. Union Elevated Railroad Co. 258 id. 133.) The jury might understand, in reading the clause inserted by the court in connection with the rest of the instruction, that they had no right to take into consideration, or to offset against any damages which might be sustained, any benefits common to other property in the vicinity of the proposed improvement although such benefits might materially enhance the value of such property, even to the extent of showing there was no depreciation caused by the construction of the said improvement. Under the rule laid down in the decisions just cited this must be held reversible error. Instruction No. 7 given on behalf of appellee was even more misleading in this regard. The jury were told in that instruction that they "should exclude from their minds all consideration of benefits, if any, to accrue from the improvement to the lots or parts of lots not taken, which are common to all the property in the immediate vicinity in which the property in controversy is situated."
Counsel for the appellant contend that the court further erred in giving for appellee the following instruction :
“The court instructs the jury, if you find, from the evidence and your view of the premises, that the property has a certain amount of Calumet river frontage, and further find that such frontage was of a peculiar and special advantage to the property and of value, then you should take the value of such frontage, if any, into consideration in assessing your award for the land taken.”
As has already been stated, the question whether appellee owned any riparian rights or river frontage should not have been submitted to the jury. This was a preliminary question for the court to decide. If the court found that the appellee had river frontage and was entitled to riparian rights, then the other part of this instruction might properly have been given. Much evidence was submitted on both sides as to the navigability in fact of the Calumet river adjoining this property. Many, if not all, of the witnesses for appellee, in giving an estimate of the value of the property, considered as one of the material elements of value the river frontage and riparian rights, and apparently also considered as material elements of said value the navigability in fact of the Calumet river. The evidence showed that the stream at this point had not been meandered by the government. The court refused to give for appellant the following instructions:
“The court instructs the jury that a party who alleges or claims that a stream is navigable has got the burden of showing that fact, if it be a fact."
"You are instructed that a stream, to be navigable, must furnish a common passage capable of floating vessels for the transportation of property conducted by the agency of man, and a stream is navigable in fact only where it affords a channel for useful commerce and of practical utility to the public as such. The fact, if it be a fact, that there is water enough in places or at certain seasons of the year for row boats or small launches is not sufficient to make the stream navigable in fact.”
"A stream of water to be navigable in fact must in its ordinary and natural condition furnish a highway over which commerce is or may be carried in the customary mode in which such commerce is conducted by water.”
Under the holdings of this court in People v. Economy Light and Power Co. 241 Ill. 290, these instructions stated the law correctly. This is admitted by counsel for appellee, but it is argued that the evidence so clearly showed the navigability of the stream at this point that the refusal to give them was harmless error. With this we do not agree. There were no instructions given to the jury covering the
same questions, or, for that matter, any instructions as to when a river is navigable in fact.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.
CLARA L. KERN et al. Appellees, vs. FRANK J. BEATTY,
Opinion filed February 17, 1915.
1. Trusts—presumption that conveyance of legal title to wife of purchaser is a gift may be rebutted. The presumption that a conveyance of the legal title to the wife of the person who furnished the consideration was intended as a gift or advancement is not conclusive but may be rebutted.
2. Same-when equity will enforce a trust irrespective of section 9 of the Statute of Frauds. Where a conveyance of the legal title is made to the wife pursuant to an oral agreement with her husband, who furnished the consideration, that she will hold the property as the joint homestead of herself and husband as long as she shall live and will make a will devising the property to her husband at her death, or, in case he be dead, to his two sons, a constructive trust is created by reason of the fiduciary relationship of the parties, which a court of equity will enforce notwithstanding section 9 of the Statute of Frauds.
APPEAL from the Circuit Court of Rock Island county; the Hon. R. W. OLMSTED, Judge, presiding.
A. B. JOHNSON, and J. T. & S. R. KENWORTHY, for appellant.
J. B. & J. L. OAKLEAF, for appellees.
Mr. Justice CRAIG delivered the opinion of the court:
Appellee Clara L. Kern filed a bill in the circuit court of Rock Island county for the partition of certain property in the city of Rock Island of which she alleged her sister,
Matilda Beatty, was seized in fee simple at the time of her death, January 24, 1913. The bill alleges that Matilda Beatty died intestate, leaving no husband or child or children or descendants of a deceased child or children, but left her surviving as her only heirs-at-law, appellee and certain nephews and nieces, who were made parties defendant to the bill; that appellant, Frank J. Beatty, and his wife, Nellie Beatty, are in possession of the premises as tenants from month to month but have no other right or interest in the property, and it prays for partition of the same among the heirs-at-law of Matilda Beatty named in the bill. Appellant and his wife filed their answer, in which they denied the material allegations of the bill and alleged title in appellant and his brother, Samuel Beatty, as the children and heirs-at-law of John G. Beatty, deceased, who was the husband of Matilda Beatty in his lifetime. Appellant also filed a cross-bill setting up the same facts, to which Clara L. Kern and the other parties to the original bill and Samuel Beatty were made parties defendant. A general demurrer was sustained to the cross-bill, and appellant electing to abide by his cross-bill, a decree was entered dismissing the same for want of equity. From this decree an appeal has been prosecuted to this court, and the only question presented for our consideration is the sufficiency of the cross-bill.
It is alleged in the cross-bill that the appellant and his brother, Samuel Beatty, are the sons and only heirs-at-law of John G. Beatty, deceased, who in his lifetime was the husband of Matilda Beatty; that at the time of their marriage John G. Beatty was possessed of some means and property but that Matilda had no property whatsoever; that after their marriage they lived and resided together as husband and wife until his death, on January 21, 1913; that Matilda Beatty raised appellant and his brother, who were children of John G. Beatty by a former wife, and treated them with such kindness that they did not learn