Chaplin v. Comm'rs of Highways of Wheatland Tp.

• Decision Date: 15 November 1888
• Citation: 18 N.E. 765,126 Ill. 264
• Parties: CHAPLIN v. COMMISSIONERS OF HIGHWAYS OF WHEATLAND TP.
• Court: Illinois Supreme Court

126 Ill. 264

18 N.E. 765

CHAPLIN

v.COMMISSIONERS OF HIGHWAYS OF WHEATLAND TP.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, Second district.

Bill filed in the circuit court of Will county by James Chaplin to enjoin the commissioners of highways of Wheatland township of said county from constructing a drain through complainant's land. The circuit court dismissed the bill, and complainant appealed to the appellate court. From a decree of the latter court, affirming of the circuit court, complainant again appeals.

E. Meers and D. Gilmore, for appellant.

A. F. Mather and A. O. Marshall, for appellees.

BAILEY, J.

This case comes here on appeal from the appellate court, without any certificate by the judges of that court that it involves question of law of such importance, either on account of principal or collateral interests, that it should be passed upon by this court. It does not involve $1,000. The damages awarded the complainant by the jury in the condemnation proceedings were only $12, and none of the witnesses upon the hearing in the court below estimated the complainant's damages by reason of the digging and maintaining of the proposed drain as high as $1,000. The complainant himself, in his testimony, places his damages to both the land taken and the land damaged at $400. It is plain, then, that we have no jurisdiction of the appeal, unless the case involves a franchise or freehold, or the validity of a statute. If either of those questions is involved, an appeal lies from the appellate court to this court, without reference to the amount involved, by virtue of the express provisions of the constitution. On such appeal, however, so long as the statute does not vest the appellate court with jurisdiction of appeals in cases involving a franchise, a freehold, or the validity of a statute, we cannot entertain the appeal for the purpose of passing upon the merits of the case, but only for purpose of reversing or vacating the judgment of the appellate court, and remanding the cause to that court, with directions to dismiss the appeal. It cannot be pretended that any franchise is involved in the present case. Does it involve a freehold, or the validity of a statute? The bill was filed to restrain the commissioners of the township of Wheatland from entering upon the complainant's land for the purpose of digging, opening, and cleaning a ditch or drain to carry off the water from a public highway, and, in effect, to set aside and cancel the proceedings by which said commissioners had undertaken to acquire, by process of condemnation, the right to construct and maintain such ditch or drain across said land. Said condemnation proceedings were had under the provisions of the eighth section of the statute in relation to roads and bridges, which authorizes commissioners of highways to enter upon any land adjacent to any highway in their town ‘for the purpose of opening any ditch, drain, necessary sluice, or watercourse, whenever it shall be necessary to open a water-course from any highway to the natural water-courses, and to dig, open, and clean ditches upon said land for the purpose of carrying off the water from said highways, or to drain any slough or pond on said highway.’ Said section provides that, in case of the failure of the commissioners to obtain the consent of the owner of such land to the cutting of such ditches, a proceeding may be instituted before a justice of the peace of the county for the purpose of having the damages which such owner may sustain by reason of the digging or opening of such ditches or drains assessed by a jury. The mode of proceeding is prescribed, and it is provided that the jury ‘shall assess such damages, and render a verdict therefor, which shall be final and conclusive of the amount of damages sustained by such person; and the amounts so awarded shall be paid before the commissioners of highways shall be warranted and empowered to enter such lands, and dig, open, and clean such drains, ditches, and watercourses, as aforesaid, for the purposes contemplated by this act.’ The circumstance which rendered it necessary to have a ditch or drain dug from the highway at the point in question across the complainant's land was the construction by the owners of the land on the opposite side of the highway of a tile-drain, running for a considerable distance across their lands, and discharging large quantities of water into the highway at the point. It thus appears that the necessity for suitable drainage by means of the ditch in question was a permanent one. It was not the case of a temporary accumulation of water, demanding an outlet only for the time being, but one which required a means of drainage as perpetual as the highway itself. It cannot be doubted, then, that the right sought to be condemned was that of casting a permanent burden upon the complainant's land. The interest acquired by the exercise of the right of eminent domain in lands taken for railroads, highways, streets, or alleys, or other like purposes, where the statute does not give the power to condemn the fee, is in the nature of a perpetual easement. Mills, Em. Dom. § 49. The right to construct and maintain a ditch across the complainant's land, sought to be condemned in this case, was, in the same sense, and to the same extent, a perpetual easement. Is a perpetual easement which one party may have in the lands of another a freehold estate? An estate, to be a freehold, must possess these two qualities: (1) Immobility,-that is, the property must be either land, or some interest issuing out of or annexed to the land; and (2) a sufficient legal indeterminate duration. Whart. Law Dict. As said by Mr. Washburn: ‘An easement always implies an interest in the land in or over which it is enjoyed. The interest of an easement may be a freehold or a chattel one, according to its duration.’ Washb. Easem. 5. Blackstone defines a freehold to be ‘such an estate in lands as is conveyed by livery of seizin, and in tenements of any incorporeal nature, by what is equivalent thereto.’ 2 Bl. Comm. 104. In another place he says that such equivalent mode of transferring the property in incorporeal hereditaments, or things wherein no livery can be had, is by grant. Id. 317. It is therefore said that freeholds of corporeal hereditaments lay in livery, and of incorporeal hereditaments in grant. 1 Prest. Est. 13. The same author, in discussing the doctrine of...