Chicago & A.R. Co. v. Glinney

• Decision Date: 13 November 1886
• Citation: 9 N.E. 203,118 Ill. 487
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. GLINNEY.

118 Ill. 487

9 N.E. 203

CHICAGO & A. R. CO.

v.GLINNEY.

Supreme Court of Illinois.

November 13, 1886.

Appeal from appellate court, Second district.

C. Beckwith, for appellant.

Wing & Goodspeed, for appellee.

CRAIG, J.

This was an action brought by Dennis Glinney against the Chicago & Alton Railroad Company, to recover damages for an alleged diversion of water by the company from its natural course, resulting in an injury to a certain portion of a tract of land owned by the plaintiff. The plaintiff, as appears from the record, owns the N. E. 1/4 of section 4, township 32, range 9 E. of the third principal meridian, in Will county. The railroad runs north-east and south-west through the township. Coming from the north, it enters the township near half section line of section 3, and it leaves the town on west line, near half section line of section 19. The road, as located, does not run over any part of plaintiff's land. The nearest approach to plaintiff's land is at the south-east corner, where it is 10 rods distant from the quarter corner. Killgore slough heads about three-quarters of a mile south-east of the railroad in this township. It runs across the railroad, and crosses the plaintiff's land, running in a north-westerly direction, until it empties into the Claypool run, several miles distant from plaintiff's land. The land in the locality is generally flat, but at the same time it slopes gradually from the south-east to the north-west. Braidwood is located on sections 7 and 8, some two miles south-west of plaintiff's land. Between plaintiff's land and Braidwood there are certain valleys and corresponding ridges, running from south-east in a north-west direction. In the construction of the railroad across these depressions the flow of water was, to some extent, no doubt, interrupted, and the railroad company, for the purpose of relieving its track of water, 15 years before the commencement of this action constructed a ditch along the east side of its track, from a point a short distance south of Braidwood to Killgore slough. In consequence of the construction of this ditch, the plaintiff claimed that the volume of water in Killgore slough has been increased to such extent that, in a wet season of the year, the slough overflows upon a portion of his land, and that some 45 acres of the W. 1/2 OF N. E. 1/4 of section 4 has been seriously damaged; that prior to the construction of the ditch it was fine meadow land, but since that time it has become almost worthless.

On the trial of the cause, among other defenses, the railroad company claimed that other persons had constructed drains into the ditch which it had constructed along its line of road, and thus greatly increased the flow of water into Killgore slough, and that the railroad company could not be held responsible for such increased flow of water. Upon this branch of the case the witness Riley, on his cross-examination, testified as follows: ‘The water complained of comes from off the prairie,-off section 17. Section 17 lies south-east of Braidwood. They opened ditches, and let the water from section 17 into the railroad ditch. I don't know who opened the ditches; the railroad company did not. The water from section 17 would not have hurt me or Glinney if it had not been let into the ditch. There is a ditch cut from section 17 down to the railroad ditch. The railroad company did not cut this ditch, and there are other cuts running into this ditch. There is a road near me, with ditches on either side, which ditches run into the railroad ditch. The railroad company did not dig these ditches. There is a large body of low land to the east of the railroad, through which a road is graded,...