and by its petition that it should be allowed compensation for property damaged but not taken. The whole issue, therefore, was what compensation should be allowed for property taken and for property damaged but not taken, and on this issue the report was prima facie, but not conclusive, evidence for either side. The estimates of the witnesses as to the value of the building varied. The testimony of the appellee's witnesses placed the value of that part of the building north of the partition wall at $8975, which was regarded as totally destroyed. The cost of re-adjusting the wall was placed at $1000, making the whole damage $9975. According to the appellant's testimony the value of the north section of the building was $15,332.88, and it would cost $1629 to make the partition wall comply with the city ordinances. The cost of re-adjusting the remainder of the building after cutting off the eighteen feet, so as to make it tenantable and comply with the city ordinances, would be, according to one witness, $15,724.47, according to another, $16,586.42. Since the cost of re-construction, according to this evidence, would exceed the value of the building, the award for damages to the building could not exceed its value, $15,332.88, and the cost of changing the partition wall, $1629. If the appellee's evidence is followed, the judgment of $11,000 exceeds the appellant's damages to the whole building by more than $1000, but if the appellant's evidence is taken it does not equal the damages by nearly $6000. The court viewed the premises, the finding is within the range of the testimony, and we cannot say that it is not sustained by the evidence.

Tracts F and G together constitute a parcel of land situated at the southwest corner of Twelfth and State streets, having a frontage of fifty-two feet on State street and one hundred feet on Twelfth street. No part of this parcel is under the viaduct or subject to any easement and the appellant owns it in fee. Tract F is the east sixty-six feet of the parcel, and on the north twenty-four feet of the tract, front

ing State street, is a three-story building used for storage and other purposes, extending back sixty feet on Twelfth street. South of this building the east twenty-five feet of tract F are vacant and the west forty-one feet are occupied by a part of the appellant's "out-freight house," which extends south several hundred feet, at which all out-going freight is received and loaded on cars. Tract G is the thirty-four feet immediately west of tract F. It is fiftytwo feet long north and south and is occupied by three railroad tracks and a cross-over. These tracks go north across Twelfth street and about one block beyond it. The two easternmost are known as house tracks, and are used for setting cars and for loading out of and unloading into the freight house on tract F. The westernmost track is a thoroughfare track, by which cars are transferred to the team tracks, yards and freight houses north of Twelfth street. After this switching has been done the track is also used as a team track for loading heavy freight from cars to teams or from teams to cars. The commissioners' report allowed $2 compensation for the land and $4000 for the improvements. The judgment was for $2 for the land and $6117 for the improvements. The appellant insists that these amounts are inadequate. It contends that the judgment of condemnation is for full street purposes, and gives the appellee the right to use the property of the appellant which is condemned, upon the surface, below the surface and above the surface, whenever the interest of the public requires it, and the city may at any time take possession of the land occupied by the appellant's freight house and deprive the appellant of any right to use its property for any purpose except the passage of trains over existing railroad tracks. There is no contest over the award for the improvements or the question of damages to the remainder, either of land or improvements, not taken. The only question is as to the compensation for the land. The whole of tracts F and G is railroad property already devoted to a

public use and actually used by the appellant for railroad purposes in the operation of its railroad. Counsel agree that the measure of the damage to it is the decrease in the value of its use for railroad property caused by the existence and use of the street. The extent to which the use of the street will interfere with the use of the property for railroad purposes is therefore of vital importance in determining the compensation, and this depends upon the method of such use. The appellant insists that this proceeding contemplates the absolute exclusion of the appellant from the whole of tract F and the serious interference with its use of tract G. The ordinance for the improvement provides that upon the entry of an order by the court granting the city the right to take possession of or damage the property described, and in respect to which compensation shall have been made or deposited as provided by law, the commissioner of public works shall forthwith remove any building or part thereof, or any other obstruction which may be located on the land, and put the surface of the land damaged by the widening of the street in such condition that it can be used for public travel. The judgment of the court provides that upon the payment by the city of the sums of money awarded to the respective owners or persons interested, or upon proof of the deposit of such sums as directed by law, the city shall have the right to take possession of and damage the property in respect to which the said compensation shall have been so paid or deposited.

On the trial, the city, in order to show the manner in which it was proposed to improve the street and the method in which it was proposed to make use of the street after the improvement was made, introduced in evidence a contract between the city and appellant and other railway companies for the construction upon East and West Twelfth street, as widened, of a viaduct one hundred and eighteen. feet wide, extending from the Chicago river to a point in the vicinity of Wabash avenue, towards the cost of con

structing which the railway companies agreed to pay $791,350, of which the share of the appellant was $56,502.39. Paragraphs 10 and 11 of the contract are as follows:

"10. Nothing in this agreement contained shall be construed as a grant to the city by the railway companies, or any of them, of right of way for the proposed widening of East and West Twelfth street, nor as a grant of an easement for the construction of the said viaduct over any portion of the property of the railway companies or any of them, nor as a license to the city to enter upon the property of the railway companies, or any portion thereof, for any purpose whatsoever, except for the removal of the present viaduct and for the construction of a new viaduct upon land now owned or hereafter acquired for the construction thereof. Nor shall anything in this agreement contained be construed as a waiver by any of the railway companies of its claim or claims for compensation or damage on account of the taking or appropriation of property for the widening of said street or viaduct, it being the intention of this agreement that the city shall acquire any property necessary for such purpose, whether from the railway companies or others, by purchase or condemnation.

"II. Nothing in this agreement contained shall be construed as a surrender or impairment of the present rights of the railway companies, or any of them, to the occupancy of the present East and West Twelfth street with their railway tracks, or as a waiver of any right or rights which they, or any of them, may possess to lay their tracks across, upon, along or over the said East and West Twelfth street, either in its present width or as it shall be when the city shall complete the proposed widening thereof. The right of each of the railway companies to maintain its existing tracks, buildings, structures and appliances underneath the said viaduct is fully recognized and confirmed, and each of the railway companies shall have the right to extend over said street, underneath said viaduct, additional tracks with

in its adjacent right of way so extended thereover, and to place thereon and therein such buildings, structures and appliances as it may deem necessary or advisable: Provided, such buildings or structures shall not interfere with the free use of said viaduct by the said city or the public: Provided further, however, that in any condemnation proceeding which has been or may hereafter be instituted by the city to acquire additional property to be used in widening East and West Twelfth street across the property of the railway companies, nothing herein contained shall preclude any party hereto from setting up any right, if any, which may be conferred by the terms of this agreement to construct or maintain any tracks, buildings or structures beneath said East and West Twelfth street viaduct as completed."

The ordinance for the improvement was passed on April 5, 1911. The petition for the assessment of damages and benefits was filed on April 7, 1911. The ordinance authorizing the viaduct contract was passed July 2, 1914, and the contract was executed September 10, 1915. Counsel for the appellant objected to the introduction of this contract on the ground that it could not be used for the purpose of reducing the amount of the damages to the appellant's property, for the reason that the petition for condemnation provides for the taking of the appellant's property for full street purposes, and not of an easement, merely, for a viaduct. They further maintain that by proceeding to a judgment without amending the petition to show that an easement for a viaduct, only, was granted instead of for full street purposes, the city repudiated the viaduct contract and the appellant by the judgment has been divested of all its rights guaranteed by that contract and may be ousted from all use of the space under the viaduct except for its tracks.

The condemnation of a street over the property of a railroad company, unless the use is in some way restricted, authorizes the use of the street on the surface or above or below the surface, and the use of the street for public travel