Property Taken for Public Use.

The term "damaged," used in section 13 of the Constitution of 1870, relating to the rights of persons whose property has been taken for public use, refers to a damage not merely exceeding in amount the damage sustained by the public generally, but to a damage greater in kind —that is, greater by reason of its peculiar nature. Chicago v. Burcky, 158 Ill. 108; Parker v. Catholic Bishop, 146 I11. 168; East St. Louis v. O'Flynn, 119 Ill. 206; Chicago v. Union, etc., Ass'n, 102 Ill. 393; Rigney v. Chicago, 102 Ill. 81.

Constitution of 1870.

The term "damaged," used in section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, means damaged specially and individually, in a manner not common to the public. Chicago & W. I. R. Co. v. Ayres, 106 Ill. 517; Chiles v. Alton etc. Co., 158 Ill. App. 512; Metropolitan W. S. E. R. Co. v. Goll, 100 Ill. App. 332.

The intention of the legislature, in adding the word "damaged" in section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, to the word "taken," as used in section 11 of article 13 of the Constitution of 1848, was to require compensation in all cases where, but for legislative authority to do the act complained of, an action would lie at common law. Aldrich v. Metropolitan W. S. E. Ry. Co., 195 Ill. 460; North Shore S. Ry. Co. v. Payne, 192 Ill. 246; Barrows v. Sycamore, 150 Ill. 595; Rigney v. Chicago, 102 Ill. 81; Metropolitan W. S. E. R. Co. v. Goll, 100 Ill. App. 331. Property is "damaged," within the

DAMAGED

meaning of section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, where the tracks of a steam railroad company are elevated in such fashion as to obstruct ingress and egress to such property. Chicago v. Jackson, 196 Ill. 505; Chicago v. Pulcyn, 129 Ill. App. 181.

The term "damaged," used in section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, refers to the damage to the whole tract in question, so that where an improvement has the effect of cutting a tract in two parts, the question is of the damage to the tract not taken, considered as a whole, and not to the two remaining parts. Shawneetown v. Mason, 82 Ill. 344; Page v. Chicago M. & St. P. Ry. Co., 70 Ill. 328.

The term "damaged," used in section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, contemplates an actual diminution of the present value or price of the property, rendering it less valuable in the market, if offered for sale. Shawneetown v. Mason, 82 Ill. 342; Page v. Chicago M. & St. P. Ry. Co., 70 Ill. 328; Chicago & P. R. Co. v. Francis, 70 Ill. 240.

The word "damaged," used in section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for use, refers to real, and not to speculative damages. Chicago M. & St. P. Ry. Co. v. Hall, 90 Ill. 46; Hyde Park v. Dunham, 85 Ill. 572; Shawneetown v. Mason, 82 Ill. 342; Eberhart v. Chicago M. & St. P. Ry. Co., 70 Ill. 349; Page v. Chicago M. & St. P. Ry. Co., 70 Ill. 328; Chicago & P. R. Co. v. Francis, 70 Ill. 240.

The addition of the word "damaged," used in section 13 of article 2 of the Constitution of 1870, relating to the rights of those whose property is taken for public use, to the word "taken," as used in section 11 of article 13 of the Constitution of 1848, is indicative of a deliberate purpose to change the organic law of the state, and declare a rule of conduct dif

DAMAGED

ferent from that declared by the Consti- | tution of 1848, from which springs new rights not formerly existing. Chapman v. Staunton, 246 Ill. 397; Aldrich v. Metropolitan W. S. E. Ry. Co., 195 Ill. 460; Rigney v. Chicago, 102 III. 75.

A tract of land is "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, by the extension of a street through such tract, so as to cut it into two parts. Washington, etc., Co. v. Chicago, 147 Ill. 333.

The term "damaged," used in section 13 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, refers to the pecuniary loss or injury which lessens the value of the property. West Side E. R. Co. v. Stickney, 150 Ill. 383; Elgin v. Eaton, 83 Ill. 537; Shawneetown v. Mason, 82 Ill. 344; Chicago & P. R. Co. v. Francis, 70 Ill. 239.

Property is not "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, by temporary obstructions in a public street, made necessary by the construction of a public improvement, although occasioning inconvenience, loss or expense to abutters. Chicago, etc., Co. v. Chicago, 243 Ill. 271; Lefkovitz v. Chicago, 238 Ill. 29; Osgood v. Chicago, 154 Ill. 198.

Property is "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property has been taken for public use, by the act of a sanitary district in reducing the level of water in the Chicago River, so that canals leading from the river to property of plaintiffs were obstructed. Beidler v. Sanitary District, 211 Ill. 639.

Property is "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, relating to the rights of persons whose property is taken for public use, when its value is depreciated by the erection and operation of an elevated railroad in the street in front of the property. Aldis v. Union E. R. Co., 203 Ill. 572; Doane v. Lake Street E. R. Co., 165 Ill. 518.

DAMAGES

Property is not "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, relating to a rights of persons whose property is taken for public use, by the construction of a small pox hospital in the vicinity, although resulting in the depreciation of the value of plaintiff's land, where the hospital is erected by a city on its own land, and where there is no unwarranted abuse of discretion in locating or maintaining it, having reference to present necessities, the crowded condition of the locality where it is placed, and other pertinent facts and circumstances. Frazer v. Chicago, 186 Ill. 490.

Property is "damaged," within the meaning of section 13 of article 2 of the Constitution of 1870, relating to the rights of those whose property is taken for public use, by a change of grade of a street in front of such property. Grant Park v. Trah, 218 Ill. 519; Chicago v. Jackson, 196 Ill. 505; Joliet v. Blower, 155 Ill. 416; Bloomington v. Pollock, 141 111. 349; Elgin v. Eaton, 83 Ill. 536.

DAMAGES.

A compensation, recompense or satisfaction to the plaintiff, for an injury actually received by him from the defendant. Holmes v. Holmes, 64 Ill. 297.

Dramshop Act.

An instruction in an action under section 9 of the Dramshop Act (J. & A. 4609) that if it appeared that defendants disregarded notice from the wife of the deceased not to sell liquors to him then if they found plaintiff entitled to "damages," exemplary damages might be assessed for disregarding the notice is not misleading as authorizing the assessment of exemplary damages although no actual damages were sustained, because of the fact that the word "actual" was omitted in the instruction before the word "damages." Killham v. Chaloupka, 195 Ill. App. 186.

Liquidated.

Damages are said to be liquidated where they can be determined from the

DAMAGES WITHOUT INJURY

contract itself or from the contract and the rules of law applicable thereto, and where it is necessary to introduce evidence before plaintiff can prove his case, the damages are said to be unliquidated. Lepman & Heggie v. Inter-State Produce Co., 205 Ill. App. 270.

Unliquidated.

Unliquidated damages are such as are unascertained, as those arising out of a breach of a contract where the amount of damages has not been determined by agreement. Marks v. American Furniture Novelty Co., 208 Ill. App. 186.

DAMAGES WITHOUT INJURY.

Damages suffered without the invasion of a legal right or the violation of a legal duty. Gillman v. Chicago Rys. Co., 268 Ill. 309.

DAMNI INJURIAE ACTIO.

(Lat.) In civil law. An action for the damage done by one who intentionally injured the beast of another. Calv. Lex.

DAMNOSA HAEREDITAS.

A name given by Lord Kenyon to that species of property of a bankrupt which, so far from being valuable, would be a charge to the creditors; for example, a term of years, where the rent would exceed the revenue.

The assignees are not bound to take such property; but they must make their election, and, having once entered into possession, they cannot afterwards abandon the property. 7 East, 342; 3 Campb. 340.

DAMNUM ABSQUE INJURIA.

An inconvenience or loss suffered by one as the result of the lawful use of a neighbor's property is damnum absque injuria. Metropolitan W. S. E. R. Co. v. Goll, 100 Ill. App. 334.

(Lat. injury without wrong.) A wrong done to a man for which the law provides no remedy. Broom, Leg. Max.

Pope-22

DANGEROUS WEAPON

1. Damage sustained without the infraction of a legal right. 25 Conn. 265; 103 Ind. 314.

Injuria is here to be taken in the sense of "legal injury;" and, where no malice exists, there are many cases of wrong or suffering inflicted upon a man for which the law gives no remedy. 2 Ld. Raym. 595; 11 Mees. & W. 755; 11 Pick. (Mass.) 527; 10 Metc. (Mass.) 371. Thus, if the owner of property in the prudent exercise of his own right of dominion, does acts which cause loss to another, it is damnum absque injuria. 2 Barb. (N. Y.) 168; 5 Barb. (N. Y.) 79; 10 Metc. (Mass.) 371; 10 Mees. & W. 109.

What Constitutes.

The building of a jail, police station, or the like, a case of damnum absque injuria, as to an obstruction in a public street, if it does not practically affect the use or enjoyment of neighboring property. Aldrich v. Metropolitan W. S. E. Ry. Co., 195 Ill. 463; Rigney v. Chicago, 102 Ill. 80.

DAN.

Anciently the better sort of men in England had this title; so the Spanish Don. The old term of honor for men, as we now say Master or Mister. Wharton.

DANELAGE.

The laws of the Danes which obtained in the eastern counties and part of the midland counties of England in the eleventh century. 1 Bl. Comm. 65.

DANGEROUS WEAPON.

A weapon calculated to cause death or great bodily harm. Guns, swords, knives, and the like, are dangerous weapons, as a matter of law. 110 N. C. 497; 1 Baldw. (U. S.) 78. Others are dangerous or not, according to their capability of causing great bodily harm in the manner in which they are used. Thus, a champagne bottle (33 Ga. 207), a chair (3 Tex. App. 13), a club (104 N. C. 786),

In civil law. A giving by the debtor and receipt by the creditor of something in payment of a debt instead of a sum of money.

It is somewhat like the accord and satisfaction of the common law. 16 Toullier, Dr. Civ. note 45; Poth. Vente, note 601. Dation en paiement resembles in some respects the contract of sale; dare in solutum est quasi vendere. There is, however, a very marked difference between a sale and a dation en paiement. First, the contract of sale is complete by the mere agreement of the parties;

DAY

the dation en paiement requires a delivery of the thing given. Second, when the debtor pays a certain sum which he supposed he was owing, and he discovers he did not owe so much, he may recover back the excess; not so when property other than money has been given in payment. Third, he who has in good faith sold a thing of which he believed himself to be the owner is not precisely required to transfer the property of it to the buyer; and, while he is not troubled in the possession of the thing, he cannot pretend that the seller has not fulfilled his obligations. On the contrary, the dation en paiement is good only when the debtor transfers to the creditor the property in the thing which he has agreed to take in payment; and if the thing thus delivered be the property of another, it will not operate as a payment. Poth. Vente, notes 602-604. See 1 Low. (U. S.) 53.

DAY

which elapses between two successive midnights. 2 Bl. Comm. 141.

Generally, in legal signification, the term includes the time elapsing from one midnight to the succeeding one (2 Bl. Comm. 141), but it is also used to denote those hours during which business is ordinarily transacted, frequently called a "business" day (5 Hill [N. Y.] 437), as well as that portion of time during which the sun is above the horizon, called, sometimes, a "solar" day, and, in addition, that part of the morning or evening during which sufficient of his light is above for the features of a man to be reasonably discerned. Coke, 3d Inst. 63.

By custom, the word "day" may be understood to include working days only (3 Esp. 121), and, in a similar manner only, a certain number of hours less than the number during which the work actually continued each day (5 Hill [N. Y.] 437).

A day is generally, but not always, regarded in law as a point of time, and fractions will not be recognized. 15 Ves. 257; 2 Barn. & Ald. 586. And see 9 East, 154; 4 Campb. 397; 11 Conn. 17.

As Meaning from Sunrise to Sunset.

The term "day" does not always mean twenty-four hours, but is frequently used to designate the time from sunrise to sunset. People v. Keating, 247 Ill. 78.

Natural Day.

A natural day consists of twenty-four hours, or the space of time which elapses while the earth makes a complete revolution on its axis. People v. Hatch, 33 Ill. 137. To the same effect see Aimo v. People, 122 Ill. App. 400.

Artificial Day.

An artificial day contains the time from the rising until the setting of the sun, and a short time before rising and after setting. People v. Hatch, 33 Ill. 137.

Employment Act.

It is within the power of the legislature to declare what shall be a day for particular purposes, as for example, section

DAY

1 of the act of 1867 (J. & A. 15286), providing that eight hours of labor, between the rising and setting of the sun, in all mechanical trades, arts and employments, shall constitute a day. People v. Keating, 247, Ill. 78.

Courts Act.

Section 17 of the act of 1874 (J. & A. 3015), relating to circuit courts, providing that if no judge shall attend before four o'clock on the afternoon of the second "day" of a regular or special term of the court it shall stand adjourned till the next succeeding term, does not mean, by the quoted word, a space of twentyfour hours, but mean, that portion of time from midnight, the close of the first day of the term, till four o'clock in the afternoon of the second day, so that a placita reciting that a term of such court convened on such second "day" means that it convened before the legal expiration of such day. People v. Keating, 247 Ill. 79.

Election Act.

Section 79 of the Election Act (J. & A. 14805), forbidding the sale of liquor on any election "day," means, by the quoted word, the natural day of twenty-four hours, commencing and terminating at midnight, and not merely the hours of the day during which the polls are open. Aimo v. People, 122 Ill. App. 400.

When Not Indivisible Unity.

There is no indivisible unity about a day which prevents considering its component hours, in legal proceedings where it becomes important to the ends of justice, the rule that the law knows no divisions of a day being purely one of convenience, which must give way whenever the rights of parties require it. Grosvenor v. Magill, 37 Ill. 241.

Term of Court As.

A term of court is regarded, in law, as but one day or a unit of time, and all acts done within the term are regarded as contemporaneous. People v. Wells, 255 Ill. 453; Krieger v. Krieger, 221 Ill. 484.