Beidler v. Sanitary Dist. of Chicago

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1118,211 Ill. 628
• Parties: BEIDLER et al. v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

211 Ill. 628

71 N.E. 1118

BEIDLER et al.

v.SANITARY DIST. OF CHICAGO.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Circuit Court, Cook County; E. F. Dunne, Judge.

Action by George Beidler and others against the Sanitary District of Chicago. Defendant had judgment on demurrer, and plaintiffs appeal. Reversed.William J. Lacey, for appellants.

Seymour Jones and William Beebe (James Todd, of counsel), for appellee.

This suit was brought in the circuit court of Cook county by George Beidler and others, who are owners as tenants in common of the lots hereinafter mentioned, against the Sanitary District of Chicago, to recover as damages the amount expended by plaintiffs in deepening or lowering the canals hereinafter referred to, and in repairing certain docks fronting on said canals and the South Branch of the Chicago River, and for permanent injury to said lots, the nature of which is not specified. The form of the action was trespass on the case. A declaration was filed, setting up the following facts as a cause of action:

More than 20 years prior to January 17, 1900, the South Branch Dock Company, a corporation, was the owner of a large tract of land, divided into lots, in Green's South Branch Addition to the city of Chicago. Some of these lots fronted on the South Branch of the Chicago River, which is and was a natural navigable water course opening into Lake Michigan, but a large majority of them lay north of the lots which fronted on the river. The dock company had excavated and constructed a number of large canals through the property so owned by them, extending north from said river several hundred feet and connected therewith, and then so subdivided their property that each lot not fronting on the waters of the river would front on one of the canals. The canals opened into the river, which, in turn, emptied into Lake Michigan. The river supplied them with sufficient water to keep their depth at about 17 feet at all times. This was their only source of water supply. They varied in length, the longest extending back from the river 2,560 feet, and were wide enough to admit large barges, steamboats, ships, and other vessels, and such vessels passed to and from points within each of said canals into Lake Michigan by means of said canals and river, and conveyed lumber, goods, and merchandise to and from such points by means thereof. Plaintiffs' premises, fronting on the canals and on the river, contained valuable docks which were used in connection therewith for loading and unloading said vessels.

After constructing this system of canals, the dock company sold 66 of the lots belonging to it to Jacob Beidler, and at the latter's death the lots passed to plaintiffs by descent. Seven of these lots front on said South Branch of the Chicago River. Each of the remaining lots fronts on one or another of the canals. The lots are leased to tenants, who use them for lumber yards and for dock purposes, under leases which provide that the lessors shall at all times keep a sufficient amount of water in said canals to furnish means of access for vessels to said premises. The lots fronting on the river extend to the middle thereof, and the ones fronting on the canals extend to the middle of such canals.

The defendant drainage district, which is a public corporation, on January 17, 1900, connected its drainage channel, constructed for sanitary purposes, with said branch of the Chicago river, and large quantities of water have ever since flowed from said river into said channel, which diminished the supply of water in the river and in each of the canals, lowering the water six feet, which made the canals too shallow for the large vessels to enter the canals or reach the premises of the plaintiffs which fronted on the canals. Plaintiffs were therefore compelled to excavate and deepen the canals to the extent that the water had been lowered therein, which they did at a cost of $10,000. The docks along the canals and along the river were also rendered useless by reason of the water being lowered therein by the drainage channel, and plaintiffs repaired them at a cost of $15,000.

The defendant filed a general demurrer to the declaration, the demurrer was sustained, and judgment entered in favor of the defendant. Plaintiffs appealed to this court, claiming that there has been a taking of property without compensation, within the meaning of section 13 of article 2 of the Constitution of this state; that sections 8 and 19 of the drainage act of May 29, 1889 (Starr & C. Ann. St. 1896, c. 42, pars, 8, 19), under which appellee was created, gives them a right of action; and that they are entitled to recover under their common-law rights, as riparian owners, for a diversion of the water, whereby they have been injured.

SCOTT, J. (after stating the facts).

Appellants are the owners of sixty-six lots, all of which they claim were damaged by the act of the Sanitary District of Chicago in lowering the general level of the water in the South Branch of the Chicago River. Seven of these lots front or about on this branch of the river. The others front on canals leading from the South Branch at right angles to the general course of the stream. It is contended by appellee that appellants have no riparian rights appurtenant to those lots which do not abut on the river, and this presents the first question for our determination.

At the time the canals were excavated, the real estate through which they extend was all property of one owner. More than 20 years intervened the construction of the canals and the opening of the principal channel of the sanitary district, the opening of which reduced the level of the water. After the canals were opened the owner of the land subdivided the same into lots facing or abutting upon the canals, except a few immediately contiguous to and fronting upon the river. These lots the owner sold from time to time without any reservation.

Under the law of this state, the owner of lots on each side of a river, such as the Chicago river, is also the owner of the bed of the stream to the center of the stream (McCartney v. Chicago & Evanston Railroad Co., 112 Ill. 611), subject only to the right of the public to the free and undisturbed navigation of the river (Chicago & Pacific Railroad Co. v. Stein, 75 Ill. 41). A riparian owner has the right to use the water in the stream. This includes the right to take a reasonable quantity of the water for his own purposes. The limitation and extent of the use of the water is that it shall not interfere with the public right of navigation, nor in a substantial degree diminish and impair the right of use of the water by other riparian owners. Washington Ice Co. v. Shortall, 101 Ill. 46, 40 Am. Rep. 196.

These canals had been continuously supplied with water for more than 20 years prior to the opening of the sanitary channel. This court has on several occasions held that the right to have water flow in an artificial channel, and to flood land which it would not overflow naturally, may be acquired by prescription. Vail v. Mix, 74 Ill. 127;Ballard v. Struckman, 123 Ill. 636, 14 N. E. 682;Totel v. Bonnefoy, 123 Ill. 653, 14 N. E. 687,5 Am. St. Rep. 570. In other states it has been frequently held that one who, by an artificial channel or waterway, has taken water from the original channel, and who has continued to divert and enjoy it for a period beyond the statute of limitations as to real actions, acquires by prescription the right to use the water in that particular manner and to continue the diversion of it in the same way. Murchie v. Gates, 78 Me. 300, 4 Atl. 698;Mathewson v. Hoffman, 77 Mich. 420, 43 N. W. 879,6 L. R. A. 349;Townsend v. McDonald, 12 N. Y. 381, 64 Am. Dec. 508;Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697;Cowell v. Thayer, 5 Metc. (Mass.) 253, 38 Am. Dec. 400;Campbell v. Talbott, 132 Mass. 174;Belknap v. Tremble, 3 Paige, 605;Shepardson v. Perkins, 58 N. H. 354;Messinger's Appeal, 109 Pa. 285, 4 Atl. 162;City of Reading v. Althouse, 93 Pa. 400;Adams v. Manning, 48 Conn. 477. It is suggested by appellee that these cases all involve the relative rights of private parties, and that no such right can be acquired by prescription against the public. The right of the public in this stream is the right to navigate it. No right can be acquired by prescription which will interfere with this right of navigation. It does not appear from the declaration in this case that filling these canals with water from the river interfered in any wise with navigation. In view of the length of the canals and the amount of water necessarily required to fill them to the level of the river, the diversion of the waters to the canals was an appropriation of the water adverse to the rights of other owners of abutting...