such route or take private property along it. The same rule must be applied here, and the action of the city of Geneva must be held a nullity so far as establishing a route for the street railway is concerned.

Again, the ordinance does not in its provisions attempt to exercise a power of location. The provision as to each part of the proposed route is conditioned upon the consent of the owner or owners of the private property. The railway company is not authorized to adopt the location by virtue of the ordinance or upon proof of the necessity contemplated by the statute, but the ordinance requires the consent

of the owner of each piece of property. If

the ordinance was an attempt to exercise a supposed legislative power, it was also an attempt to delegate that power to a few individuals who could not exercise it. The ordinance also provides that the railway company may make the location subject to such further conditions as may be imposed by ordinance when the railway company shall adopt the route, and that the ordinance is not to be construed as a grant of rights in any street, but the determination whether such rights shall be granted is reserved until a petition for the same shall be presented by the railway company. The ordinance simply amounts to a prohibition against going over the property of plaintiffs in error where we had held the road might lawfully go. It prohibits the

railway company from going over this private property, and orders it to go on another route, but reserves the right to say in the future whether it shall take the other route or what further conditions shall be imposed.

That is neither a location nor the provision for one. Not only is there no grant of a right to go upon or along the streets on which the ordinance professes to provide for a location, but the city council had no right to make or provide for any location or to grant any such right unless at least 10 days' public notice of the time and place of presenting the petition should be first given by publication in some newspaper. Section 3 of the act in regard to horse and dummy railroads provided, and the present statute governing street railroads provides, that no consent shall be granted unless such notice shall be given. That provision was construed in Metropolitan City Ry. Co. v. City of Chicago, 96 Ill. 620, and it was held the statute intended to give every person interested opportunity for a fair and impartial hearing whether a street should be occupied by a street railway, and that action without such a petition and public hearing was void.

In the case of corporations organized under the act for the incorporation of railroad companies, the power is given to select their own routes, and to lay out, locate, and construct their lines of railway. In case a city provides for the location of such a railroad, the corporation may adopt the location, and take the necessary property therefor. Paragraph 25 relates to such general or commercial railroads, and we have so applied it. Railroad

Co. v. Dunbar, 100 Ill. 110; Tudor v. Railroad Co., 154 Ill. 129, 39 N. E. 136. As to street railways, there are other specific provisions. Section 4 of article 11 of the constitution is as follows: "No law shall be passed by the general assembly granting the right to construct and operate a street railroad within any city, town or incorporated village, without requiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street railroad." Paragraph 24 of said seetion 1 of article 5 of the act for the incorporation of cities and villages relates to street railways, and section 3 of the act in regard to horse and dummy railroads, under which petitioner proceeded, provided: "No such company shall have the right to locate or construct its road upon or along any street or alley, or over any public ground in any incorporated city, town or village, without the consent of the corporate authorities of such city, town or village." These provisions gave the city council control of the location of street railways in the streets and alleys of the city, and cover the entire subject, while the right to deflect from the street is given by the statute in case of necessity. In Dewey v. Railway Co., supra, we said (page 434, 184 Ill., and page 806, 56 N. E.): "The village authorities may refuse to consent to the use of their streets and alleys by a street-railway corporation, but their con

sent or refusal to the use of their streets is the extent of their power. They control the streets, alleys, and public grounds of the village, but they do not control private property. Any attempt of the village authorities, by consenting to a particular location of a street railroad across private property, to cause the street railroad to diverge from the streets, alleys, and public grounds under their control, is void, and confers no right and creates no necessity." The ordinance in terms prohibits the present route of the railway company, while a part of the road had already been constructed in Sixth street and Campbell street under the prior ordinance. The evidence shows that the grant was for an adequate consideration, and it was accepted and the conditions performed by the railway company, so that the ordinance ceased to be a mere license, and became a valid and binding contract. Where a license is acted upon in a substantial manner, so that to revoke it would be inequitable or unjust, or where it is for an adequate consideration accepted by the grantee, it becomes a binding contract. City of Belleville v. Citizens' Horse Ry. Co., 152 Ill. 171, 38 N. E. 584, 26 L. R. A. 681. The ordinance must be held void.

After crossing the lands of plaintiffs in error the line of the railway between said lands and the south end of Sixth street crosses Batavia avenue and the intersection of Cheever and Shady avenues. It may be gathered from the entire record that defend

ant in error obtained a right to lay its tracks in Sixth street and Campbell street, and built its railway therein, but that it never obtained consent to cross said avenues. That condition, however, existed at all times and on both occasions when the case has been before us. If that fact was a valid reason against taking property of plaintiffs in error and for dismissing the petition, it should have been alleged. On those hearings it was the duty of plaintiffs in error to allege on the first hearing any reason why the petition should have been dismissed, and on the second hearing any fact which would support the action of the court in dismissing the same. The fact existed then if it exists now, and is one which might have been raised and determined. The previous decisions of the court concerning the right to take the property of plaintiffs in error settled every question which might have been raised and every objection that might have been made, whether then raised and made or not. The doctrine of res judicata embraces not only what has been actually determined in the former suit, but also extends to any other matter which might have been raised and determined in it. Hamilton v. Quimby, 46 Ill. 90; Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Ruegger v. Railroad Co., 103 Ill. 449; Gage v. Ewing, 107 Ill. 11; Scates v. King, 110 Ill. 456; Harmon v. Auditor of Public Accounts, 123 Ill. 122, 13 N. E. 161. The decision when the case was last here, that the defendant in error had a right to locate and construct its road across the property of plaintiffs in error, is res judicata, and determined the right, as between them, arising out of all facts which then existed.

If, however, the question whether the consent of the city to cross these avenues is a condition precedent to the right of condemnation be considered, the rule is that it is not such a condition. The Metropolitan City Railway Company was organized under the same act as defendant in error, and located its tracks in Lake and Canal streets, in the city of Chicago, and filed its petition to condemn the property right, interest, or privilege of the Chicago West Division Railway Company in said streets. The defendant set up that the petitioner had not acquired the right to locate, construct, and operate its railroad in said streets, and the proceeding was dismissed out of the circuit court. The judgment was reversed in this court, although it related to an interest in the street itself which the petitioner was desirous of appropriating. The parties were governed by the same law as in this case. It was held that the question whether the petitioner had obtained the privilege to occupy the street was immaterial, and it was said (page 321): "The authority to exercise the right of eminent domain is derived solely from the state, and in this instance it is conferred by the act cited in relation to horse and dummy railways. Obtaining

consent of the common council of the city to laying the track of petitioner's railway in any given street is not a condition precedent to condemning such property right, interest, or privilege as defendant may have previously acquired, by contract or otherwise, in such streets. That consent may, with equal propriety, be obtained afterwards, and it is immaterial when it is secured. The granting of such consent is always a matter of discretion with the municipal authorities. At most, it is a mere license granted by the owner of the fee of the streets, and is revocable any time before it is acted upon. No matter what conclusion may be reached as to the legality of the ordinance, it is not a question that in any degree affects petitioner's right to condemn the property of defendant, or any one else, for the purposes of its organization, and we forbear to remark upon the numerous objections urged against its validity." Metropolitan City Ry. Co. v. Chicago W. D. Ry. Co., 87 Ill. 317.

This decision would seem to settle the question that the want of power to cross Batavia avenue, or any other street or avenue, or the fact that permission to cross the same had not been granted, would not prevent the condemnation. The property of plaintiffs in error is crossed before reaching Batavia avenue or the intersection of Shady and Cheever avenues. The taking or crossing of their property does not involve the taking or crossing of any street or avenue, but the question whether defendant can cross those avenues will arise, if at all, after crossing their property. So far as the question of defendant in error being able to return to the street or highway after deflecting therefrom is concerned, the fact is that it will reach Batavia avenue whether consent to cross it is granted or not. If that should be the terminus of the road, it will be at a public street, with public access, and the accommodation of street travel from that point.

In the case of a general or commercial railroad, which could not construct its railroad upon or across a street in a city without the assent of such city, it was held that such assent was not a prerequisite to the power to condemn private property within the city. Railroad Co. v. Dunbar, supra. In that case the superior court of Cook county enjoined proceedings begun for the condemnation of land belonging to Dunbar, and the decree was reversed by this court. It was held not to be a defense for owners of private property that consent to the construction of the road across streets had not been given, and the court said (page 129): "The law has provided one mode of acquiring the right of way across private property and another mode of acquiring the right of way across streets, but the law has in no way provided the order in which the railway company shall proceed in acquiring its right of way." The judgment of the circuit court is affirmed. Judgment affirmed.

(186 I11. 179) FREEPORT WATER CO. v. CITY OF FREEPORT.

(Supreme Court of Illinois. June 21, 1900.) WATER COMPANIES-REGULATION OF RATESCONSTITUTIONAL LAW.

The act of June 6, 1891, empowering cities to fix reasonable water rates for the supply of water furnished by any corporation, is not unconstitutional, as impairing the obligation of contracts, notwithstanding a city had, prior to passage of such act, entered into a contract with a private corporation organized under the general incorporation act, which authorizes such regulations as the legislature deems advisable, by which the rentals for water had been fixed during the period of the franchise.

Appeal from circuit court, Stephenson county; John D. Crabtree, Judge.

Assumpsit by the Freeport Water Company against the city of Freeport. There was judgment for defendant, and plaintiff appeals. Affirmed.

On the 6th of June, 1882, the city of Freeport, organized under the general law for the incorporation of cities and villages, passed an ordinance granting to one Nathan Shelton or his assigns the exclusive right, for the term of 30 years, of supplying the city and citizens thereof, by a system of waterworks to be constructed as in said ordinance prescribed, with water, the terms and conditions of which ordinance were accepted by said Shelton on June 7, 1882, and by which the city agreed to pay during the full term of 30 years, to said Shelton or his assigns, an annual rental of $100 per annum for the first 100 hydrants, and for all hydrants over 100, and up to 150, the sum of $80 per hydrant, and for all hydrants over 150 an annual rental of $50 per hydrant; the rentals being payable semiannually, on the 15th days of January and July of each year. The city is given the free use of water for flushing gutters and sewers, on notice to the person in charge of the waterworks, free water for the fire department, for city hall and offices, for public schools and all churches of the city, and for four public fountains for drinking, only, and one fountain in the public square, should the city erect the same. On the Sth of August, 1882, Shelton sold and assigned all his rights under this ordinance to the plaintiff; and under it the plaintiff had, on and prior to January 1, 1896, constructed and placed 121 hydrants, up to which time the city paid all rentals called for by the said ordinance. This suit was brought by the appellant, in assumpsit, against the city, to recover the sum of $5,840, alleged to be due it on the 15th day of July, 1896, for hydrant rentals from January 1 to July 1, 1896. The plaintiff's declaration consisted of two special counts setting out the original ordinance in hæc verba, and a third containing the consolidated money counts. The defendant filed two special pleas, by which it was alleged, in substance, that the rates fixed by the Shelton ordinance were and had remained, from the time of its enactment until the subsequent

action of the city council, unjust, unreasonable, and oppressive; that on the 10th day of February, 1896, the said ordinance being then in force and effect, the city council, by an ordinance then and there enacted, approved, and published, readjusted and fixed such water rates so as to make the same just, reasonable, and fair, and that said ordinance then became and was a legal and valid enactment of the defendant (which amendatory ordinance is set out in hæc verba, and fixes the price for each hydrant at $50 per year, payable semiannually, on the 15th days of July and January of each year); that since the date of its passage and publication the same has ever since been, and now is, in force, and that the water rates and charges therein fixed and stated are obligatory on plaintiff, and are fair, just, and reasonable; and that on the 10th day of July, 1896, the defendant paid to the plaintiff all sums of money due it, as fixed by the original ordinance, up to the 11th day of February, 1896, and all sums of money due plaintiff since the enactment of such subsequent ordinance, according to the rates therein fixed, up to July 1st. To these pleas plaintiff demurred. The court overruled the demurrer to the pleas, and, plaintiff electing to stand by entered its demurrer, judgment was against it and in favor of the defendant for costs. Appellant assigns as error, and insists, that the ordinance of February 10, 1896, and the statute of the state of Illinois on which said amendatory ordinance is based, (being the act of June 6, 1891, in force July 1, 1891), are each in violation of section 10, art. 1, of the constitution of the United States, and of section 1, art. 14, of the amendments to said constitution, as impairing the obligation of contracts, and in depriving appellant of its property without due process of

law.

Fry & Hyde, for appellant. Douglas Pattison, Corp. Counsel, and Robert B. Mitchell, City Atty. (R. N. Botsford, of counsel), for appellee.

PER CURIAM. It appears that the appellant is a corporation organized under the general incorporation law of the state of Illinois. The precise questions presented on this record arose in the cases of City of Danville v. Danville Water Co., 178 Ill. 299, 53 N. E. 118, and Id., 180 Ill. 235, 54 N. E. 224, where it was held that a corporation organized under the general incorporation act agrees to submit itself to such regulations and provisions as the legislature may deem it advisable to make, under section 9 of said act, by which the right of the legislature to regulate the rates at which water shall be supplied to the public by a water company so organized is reserved; that the act of June 6, 1891, empowering cities to fix reasonable water rates, is constitutional and valid, notwithstanding the fact that the city had theretofore entered into a contract with a private

corporation by which the rentals for water had been fixed during the period of the franchise; that the city has no power by virtue of the act of April 10, 1872, and section 1 of article 10 of the city and village act, to bind itself to the payment of a fixed sum for an entire period of 30 years in advance, but that the city might, under the act of June 6, 1891, make a reasonable reduction for future supply. The demurrer to the pleas admits that the rates for hydrant rentals to be paid to the appellant under the amendatory ordinance of February 10th were reasonable and just, and the cases just cited must be held conclusive of this case. The judgment of the circuit court of Stephenson county is affirmed. Judgment affirmed.

(186 111. 104)

HARTFORD DEPOSIT CO. v. CALKINS

et al.

(Supreme Court of Illinois. June 21, 1900.) DAMAGES PREVENTION INSTRUCTIONS TRIAL APPEAL- DISPOSITION OF CAUSEJUDGMENT BY APPELLATE COURT.

1. An instruction that if plaintiff knew that his premises were being damaged, and permitted the damage to continue, when he might have prevented it, he could not recover, was correct, and it was error to modify it by adding "unless defendant directed plaintiff not to do so"; there being no evidence of such direction.

2. Where defendant, in erecting a building adjoining plaintiff's hotel, cut holes in the party wall, admitting dust and cold in some of plaintiffs' rooms, he was not excused from exercising care to shut off the exposed rooms from the rest of the building, in order to lessen the damage, on the ground that defendant's contractor or foreman told him not to do so; such foreman or contractor not pretending to have authority from defendant to give such direction.

3. In an action for several distinct items of damages to plaintiff's premises, the court having given an erroneous instruction, which applied to the question of damages in general, and not to any distinct item, it was error for the appellate court to require a remittitur and affirm the judgment for the balance.

Appeal from appellate court, First district.

Action by J. Vernon Calkins and others against the Hartford Deposit Company for damages to plaintiffs' premises. From a judgment of the appellate court (85 Ill. App. 627) affirming a judgment in plaintiffs' favor, defendant appeals. Reversed.

Appellant erected a 14-story office building in the city of Chicago, upon premises adjoining those of which appellees were in possession as lessees. Upon the dividing line was a party wall, and it became necessary to strengthen the foundations of this, and run steel columns up through channels cut into this wall, in order to support the additional weight of the new structure. As the channels for the steel columns were being cut, it was discovered that the wall grew thinner with each story, and that the channels would break through into the rooms on the third and fourth floors of the appellees' building, which was 4 stories high, and oc

cupied as a hotel. It is claimed by appellant that this discovery was made before appellees came into possession of the hotel as tenants, and that an agreement was made with the former tenant that all the rooms (seven in number) on the north side of the hotel should be closed, and that when the work was done the tenants should be paid for the loss of the rooms at the accustomed rates. Appellees say they knew nothing of this arrangement, and that when they took possession no holes had been cut; that when this work was subsequently done, without their consent, the dust, smoke, and cold air admitted through the openings resulted in continuous damage to their property and business. They claim to have made frequent complaints, and that finally an agreement was made that appellant should pay for all damage to property or business resulting from the work, of which appellees themselves were to keep the account, and it is contended that the conditions complained of continued for more than six months. At the end of this time appellees, through their attorneys, sent a letter containing an itemized statement of the alleged damages, as follows:

Loss of the use of five rooms on the north side of the building on account of dirt, cold, noise, etc., making impossible to rent or use the same, 192 days, at $7.50 per day for the five

rooms

Loss of two other rooms on the north side of the building for 192 days, at $4 per day for said rooms. Damages caused the balance of their building from smoke, noise, dust, and dampness, and the expense of additional coal and help to keep the house comfortable

Paper, and hanging same, in seven rooms Muslin for seven rooms, put on wood partitions

Calcimining and washing two upper floors of the house....

Total

$1,440

768

1,000

50

25

75

$3,358

No part of the bill being paid, appellees began an action for damages in the Cook circuit court; the bill of particulars filed with the declaration setting forth the foregoing statement, with the additional item of "other damage and loss to plaintiff's business, $1,500." Upon a hearing before a jury in January, 1898, a verdict was rendered in favor of the plaintiffs for $4,029.60. The sum of $629.60 was remitted, and judgment was entered for the remainder, $3,400. Upon appeal to the appellate court for the First district the judgment below was affirmed upon condition that appellees within 10 days remit the further sum of $1,000 from their judgment; otherwise, the cause would be remanded for new trial. Appellees elected to accept the reduction of the judgment to $2,400. Appellant brings the cause to this court upon further appeal.

Charles H. Baldwin, for appellant. Henry T. Helm and John B. Brady, for appel lees.

WILKIN, J. (after stating the facts). The only ground of reversal urged by appellant is that the trial court erred in modifying the following instruction asked by appellant: "The jury are instructed that a person can in no case recover for damages to his business or property which he permits to go on, knowing that it is going on, and without making every reasonble effort and taking active steps to prevent it or have it stopped. If you believe from the evidence that plaintiffs knew their premises were being damaged, and that they permitted the damage to continue, when by their own efforts the damage might have been stopped or prevented, then the defendant is not liable for the damage so caused, and plaintiffs cannot recover in this suit for any such damage, unless the jury further believe from the evidence that the defendant directed the plaintiffs not to do so." The last clause, "unless the jury further believe from the evidence that the defendant directed the plaintiffs not to do so," was added by the court in modification of the instruction. The appellate court, in its opinion by Mr. Justice Freeman, properly disposed of this question, and what is there said with reference to this instruction may be adopted here: "The instruction as presented to the court, and before its modification, stated, we think, substantially the correct rule of law, and was applicable to the case, in view of the evidence. The law requires that appellees should make reasonable efforts, at least, to protect themselves from unnecessary injury, and they cannot recover damages occasioned by their own neglect. In Hamilton v. McPherson, 28 N. Y. 72, it is said by Judge Selden: "The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this, and if the injured party through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.' It is said in Hogle v. Railroad Co., 28 Hun, 363: 'If it were in the plaintiff's power by reasonable efforts to prevent the increase of the wrong, he should use that power.' To the same effect are the cases of Miller v. Mariners' Church, 7 Me. 51; Mather v. Butler Co., 28 Iowa, 253; Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717. The modification complained of is, we think, erroneous. We find no evidence tending to show that the 'defendant directed the plaintiffs not to' make any effort to prevent the damages alleged to have been caused to the latter's premises, generally by smoke and dust and cold weather. The testimony of one of the appellees is that the latter did not make any effort to shut off the exposed rooms from the rest of the building, because they were told they could not do so by the contractor or a foreman; but the witness is

not positive that the contractor did so tell him, and there is no evidence that either the contractor or any foreman had, or pretended to have, authority to so represent the appellant. The contractor testified that he had no foreman, and that the work was all sublet. No reason appeared why the rooms in question could not readily have been shut off from the rest of the house. Such statement, if made, could not justify appellees in neglecting their plain duty of protecting themselves, so far as they reasonably could, from unnecessary damage." In 1 Suth. Dam. (2d Ed.) § 88, it is said: "The law imposes upon a party injured by another's breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss-that which was avoidable by the performance of his dutyfalls upon him." It would be most extraordinary for one who had committed a tort to direct the injured party not to use the reasonable diligence imposed upon him to prevent an increase of the damage, and certainly there is no evidence in this record tending to show that the plaintiff did give any such direction. We concur, therefore, in the view of the appellate court that the modification was erroneous. But, in our view, it should work a reversal and remandment of the cause for another trial. We are unable to see how the appellate court, having found reversible error in the record, could, under the facts of this case, correct that error by assuming that it only affected the appellant to the amount of $1,000. The instruction, on its face, applies to no particular item of damage. It may have induced the jury to include in its estimate of damage a part of the $1,500 item set forth in the bill of particulars, as well as the $1,000 item. It may, also, have influenced the verdict as to the amount of damage done to the seven rooms. An error in an instruction applying generally to several items of damage claimed in an action cannot be cured by requiring a remittitur as to any one of those items. We think the appellate court, in its conclusion as to the error in the instruction, should have reversed the judgment, and remanded the cause for another trial, so that a jury, upon instructions without error, might estimate and fix the damages. Reversed and remanded.