Bradbury v. Vandalia Levee & Drainage Dist

• Decision Date: 26 October 1908
• Citation: 86 N.E. 163,236 Ill. 36
• Court: Illinois Supreme Court
• Parties: BRADBURY et al. v. VANDALIA LEVEE & DRAINAGE DIST.

236 Ill. 36

86 N.E. 163

BRADBURY et al.

v.VANDALIA LEVEE & DRAINAGE DIST.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Appellate Court, Fourth District, on appeal from Circuit Court, Fayette County; A. M. Rose, Judge.

Action by John Bradbury and another against the Vandalia Levee and Drainage District. From a judgment of the Appellate Court affirming the judgment of the circuit court for defendant, plaintiffs appeal. Reversed and remanded, with directions.

Brown & Burnside, for appellants.

B. W. Henry and Albert & Matheny, for appellee.

CARTWRIGHT, C. J.

The circuit court of Fayette county sustained the demurrer of appellee, the Vandalia Levee and Drainage District, to the amended declaration of appellants, John Bradbury and Mary Bradbury, filed in this action of trespass on the case for damages to appellants' lands, resulting from the construction by appellee of a levee along the Kaskaskia river and across the bottom lands to the bluffs bordering on the same. Appellants stood by their declaration, whereupon judgment was rendered against them for costs, and on appeal to the Appellate Court for the Fourth District the judgment was affirmed. From the judgment of the Appellate Court, this appeal was taken.

The declaration contains four counts, the first of which avers that the plaintiffs are the owners of and in possession of a tract of land containing about 18 acres, on the west side of the Kaskaskia river, which flows in a southwesterly direction through the county of Fayette; that, before the building of the levee by defendant, the lands were not subject to overflow by the freshets or floods of said river and were valuable farming lands; that the defendant is a drainage district organized on or about September 9, [236 Ill. 40]1902, under the act entitled ‘An act to provide for the construction, reparation and protection of drains, ditches and levees, across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,’ in force May 29, 1879 (Laws 1879, p. 120), together with the amendments thereto; that the plan of the improvement, as fixed by the decree of the county court of said county, included the construction of a levee along the east side of the Kaskaskia river, beginning at the mouth of Lynn creek, about a quarter of a mile down the river from the plaintiffs' lands, and extending down the river about 12 miles, and also a levee from the mouth of said creek in an easterly direction to the bluffs; that during the summer of 1904 the defendant caused said levee to be erected about 8 feet in height and 4 1/2 feet wide on top, with no outlet from the river into the lands lying on the east side; that at the time of floods and freshets said river overflows its banks and inundates a strip of land about 2 miles in width; that, by reason of the construction of the levee, the flood channel below the lands of plaintiffs is narrowed and in some places does not exceed 300 feet; that by reason of the construction of the levee the waters of the river were caused to rise much higher on the west side of the river and above the levee, and to thereby overflow the plaintiffs' lands in time of freshets; that their lands were damaged and injured, the crops growing thereon were destroyed, the soil was washed away, and the lands rendered unwholesome and unhealthy and depreciated in value, and that, by reason of section 2 of said act under which the defendant was organized, it became liable to pay the plaintiffs their said damages. The third count is substantially the same as the first, and the second and fourth contain the same averments as the first respecting the plaintiffs' lands, the organization of the district, and the effect of the levee as an obstruction to the flow of the waters, but they charge that the defendant wrongfully caused the levee to be constructed, and that before the building of the levee the plaintiffs' lands were only overflowed in times of extreme floods, whereas since that time they are overflowed and damaged and rendered unwholesome in times of only moderate floods and freshets. The demurrer is both general and special, and alleges as special ground of demurrer that the declaration charges that other lands besides those of the plaintiffs have been damaged. The declaration avers that the levee caused the waters of the river to rise much higher on the west side and above the levee, which might include lands not owned by the plaintiffs, but there is no averment of damage to any lands except those of the plaintiffs, and no cause of action is stated or attempted to be stated as to any other lands. The lands of the plaintiffs are on the west side of the river above the levee, and the averments as to raising the water on that side and above the levee are only made in connection with those lands. The declaration is not obnoxious to the special ground stated.

The declaration states facts showing injury and damage to the plaintiffs' lands resulting from the act of the defendant in building the levee below them, and thereby obstructing the natural flow of the waters of Kaskaskia river in times of floods and freshets so as to hold the same back upon said lands, and the substantial question raised by the demurrer is whether the defendant is liable for such damage. If an individual owner of the land where the levee was constructed had done the same acts as the defendant, he would be liable for the consequent damage. He would have no right to build a levee which would prevent the escape of the flood waters, and thereby flood the lands of the plaintiffs. In Stout v. McAdams, 2 Scam. 67,33 Am. Dec. 441, the court said: ‘There can be no doubt that every flowing back or throwing water upon the land of another is such an act as entitles the individual injured to his action.’ That case arose from the obstruction of a natural water course by a dam, and the principle has been applied by this court alike to obstructions to the natural flow of surface waters and natural water courses. Gillham v. Madison County Railroad Co., 49 Ill. 484, 95 Am. Dec. 627;Gormley v. Sanford, 52 Ill. 158;Ohio & Mississippi Railway Co. v. Webb, 142 Ill. 404, 32 N. E. 527;Rock Island & Peoria Railway Co. v. Krapp, 173 Ill. 219, 50 N. E. 663;Pinkstaff v. Steffy, 216 Ill. 406, 75 N. E. 163. In Gillham v. Madison County Railroad Co. the doctrine of the civil law by which the owner of lower ground has no right to erect embankments whereby the natural flow of the water from the upper ground shall be stopped was adopted; and in Gormley v. Sanford it was held that there was no difference in principle whether the water comes from the clouds above or has fallen upon remote hills and comes thence in a running stream. The court said (page 162 of 52 Ill.): ‘The cases asserting a different rule for surface waters and running streams furnish no satisfactory reason for the distinction. * * * The right of the owner of the superior heritage to drainage is based simply on the principle that nature has ordained such drainage, and it is but plain and natural justice that the individual ownership arising from social laws should be held in accordance with preexisting laws and arrangements of nature. As water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once so equitable and so easy of application as that which enforces natural laws.’ Again, in Pinkstaff v. Steffy, it was considered that there could be no difference whether the water that submerged the land of Steffy came from the hills above the land or from the overflow of the stream along the same.

Under the rule of the civil law adopted by this court, the right of drainage is governed by the law of nature, and the lower proprietor cannot do anything to prevent the natural flow of surface water and cast it back upon the land above (30 Am. & Eng. Ency. of Law [2d Ed.] 326); and this court recognizes no distinction between surface waters and those flowing in a natural water course. In Burwell v. Hobson, 12 Gratt. (Va.) 322, 65 Am. Dec. 247, it was contended that a riparian proprietor may lawfully protect his property from floods by erecting a dike or other obstruction on his own land, though its necessary effect...