Chaplin v. Com'rs

• Decision Date: 31 October 1889
• Parties: CHAPLIN v. HIGHWAY COM'RS.
• Court: Illinois Supreme Court

129 Ill. 651

22 N.E. 484

CHAPLIN

v.HIGHWAY COM'RS.

Supreme Court of Illinois.

Oct. 31, 1889.

Error to circuit court, Will county.

Rev. St. Ill., Ed. 1889, c. 121, § 8, provides as follows: ‘The commissioners of highways of the several towns are hereby authorized to enter upon any land adjacent to any highway in their town for the purpose of opening any ditch, drain, necessary sluice, or water-course whenever it shall be necessary to open a water-course from any highway: * * * provided, that unless the owner of such land, or his agent, shall first consent to the cutting of such ditches, the commissioners shall apply to any justice of the peace in the county * * * for the purpose of having the damage assessed which such owner may sustain by reason of the digging or opening of such ditches.’E. Meers

and D. Gilmore, for plaintiff in error.

A. F. Mather and A. O. Marshall, for defendants in error.

MAGRUDER, J.

This was a bill filed by appellant in the circuit court of Will county for the purpose of enjoining the appellees, highway commissioners of the town of Wheatland, in said county, from digging a ditch across a portion of appellant's farm in the town of Plainfield, in said county. A public highway runs east and west between the towns of Wheatland and Plainfield, and north of the 80 acres, owned by appellant, upon which it is proposed to open said ditch. On June 20, 1885, the highway commissioners instituted a proceeding before a justice of the peace under section 8 of the roads and bridges act, (Starr & C. St. c. 121, p. 2138; Rev. St. Ill., Ed. 1889, c. 121, § 8,) and therein obtained a verdict assessing the damages for digging the ditch at $12. Appellant took an appeal from the justice to the circuit court, but his appeal was dismissed. The appellees claim the right to open and dig the ditch by virtue of the proceeding before the justice. Appellant charges that such proceeding was illegal and invalid. The facts are more fully stated in Chaplin v. Commissioners, 126 Ill. 264, 18 N. E. Rep. 765. The case is brought here for the purpose of reviewing the decree of the circuit court, which dismissed the bill for want of equity.

Counsel for appellant claim that section 8 of the act approved June 23, 1883, in regard to roads and bridges, etc., is unconstitutional upon the alleged ground that it allows no compensation for property taken. Section 13 of the bill of rights (Const. Ill. art. 2, § 13) provides that ‘private property shall not be taken or damaged for public use without just compensation.’ By the terms of section 8 of the act, the owner is summoned before a justice of the peace ‘for the purpose of having the damage assessed which such owner may sustain by reason of the digging or opening of such ditches or drains.’ Undoubtedly, the owner of the land is entitled to compensation both for the land actually taken for the purposes of a ditch or drain, and also for the damages to the land not taken. He must be paid the value of the ground used for a ditch, and, if his farm is injured by being divided into two parts, or by being partially overflowed, or is otherwise damaged, he must also be paid for such injury or damage. But the language of the section is broad enough to cover compensation for the land taken, and also damages to the land not taken. The jury are to assess the ‘damage’ which the owner may sustain by reason of the digging or opening of the ditch. The word ‘damage,’ as here used, is not to be taken in the restricted sense in which it is used in the constitution as indicating private property which is ‘damaged’ and not ‘taken.’ It is used in the broader sense of indicating the total loss which the owner may suffer by reason of the digging of the ditch or drain. Such total loss consists of the value of the ground which is taken from him to be used for a ditch, and also the injury which the remainder of his land may sustain on account of such use of the part taken. Hence we do not think the section is unconstitutional for the reason insisted upon.

But in the present case there is a serious and fatal objection to the proceeding before the justice for the assessment of damages. Two...