Chronic v. Pugh
| Decision Date | 30 March 1891 |
| Citation | 27 N.E. 415,136 Ill. 539 |
| Parties | CHRONIC v. PUGH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Clark county.
Golden & Hammill, for appellants.
Newton Tibbs, for appellee.
This was a proceeding brought by Pugh and Dunagan against Mrs. Merium Chronic, under the provisions of sections 4-10 of the approved June 27, 1885, to obtain the right, without the defendant's consent, to construct a tile drain from the plaintiffs' lands onto and part way across an adjoining tract of land belonging to the defendant. At the trial before the justice of the peace the court found for the plaintiffs, and awarded the defendant one dollar as the actual damages which will be sustained by her by the plaintiffs' entering upon her land and constructing said drain, and judgment was thereupon entered in her favor for said sum of one dollar, and costs. From that judgment the defendant appealed to the circuit court of Clark county, where a trial was had before the court and a jury, resulting in a verdict finding no damages for the defendant. Upon that verdict a judgment was rendered against the defendant for the costs incurred in the circuit court, and by a further appeal the defendant has brought the record to this court for review.
The question is raised whether the appeal has been properly brought from the circuit court directly to this court. The right sought to be established by the plaintiffs upon and over the land of the defendant is the nature of a perpetual easement. By the provisions of section 7 of the act above mentioned, the plaintiff, in a proceeding of this character, upon the payment of the judgment for the damages awarded and costs, obtains the right to enter upon the land of the adjoining proprietor and construct his drain, and also the right, at all times thereafter, in proper season, to enter upon said land for the purpose of repairing the drain, and it is made his duty to keep it in good repair; and it is declared that this right and duty shall pass to the heirs and assigns of the land for the benefit of which the drain is constructed. Section 10, moreover, makes it a misdemeanor, punishable by fine, and after the second offense by fine and imprisonment, for any person or persons to willfully fill up, injure, or destroy any drain constructed as in said act required, or to willfully prevent or delay the construction thereof. Clearly the successful issue of a proceeding of this character vests in the plaintiff an estate in fee in the easement sought to be acquired. This, as we have frequently held, is a freehold estate, within the meaning of the statute fixing the relative appellate jurisdiction of this court and the appellate court. Chapling v. Commissioners, 126 Ill. 264, 18 N. E. Rep. 765; Oswald v. Wolf, 126 Ill. 542, 19 N. E. Rep. 28; Fisher v. Forbes, (not reported.) The appeal was properly taken to this court. In the circuit court a motion was made to dismiss the appeal to that court, on the ground that, in cases of this character, the statute makes no provision for an appeal from the judgment of the justice of the peace. It is true that no appeal is expressly given by the terms of the statute itself, but section 5 provides that, when it is necessary to extent drains on or through the land of others to obtain a proper outlet, and the person desiring to drain proposes to construct such extension at his own expense, by means of an ample and properly-made tile ditch, and the owners of the land refuse to consent thereto, the person or persons desiring to drain may cause a summons to issue from any justice of the peace in the county, in the same form, and returnable in the same manner, as other summonses in civil suits, ‘and proceeding shall be had thereon as in other civil causes before justices of the peace.’ It cannot be doubted that the legislature intended by these provisions to subject proceedings of this character to the same rules of practice prescribed by law for the conduct of civil suits instituted and prosecuted before justices of the peace, and by reference to the statute regulating the practice in justices' courts it will be found that appeals from judgments of justices of the peace to the circuit court are there given in all cases. Rev. St. 1874, c. 79, § 62. It would thus seem to follow necessarily that the appeal in this case was properly allowed.
The contrary conclusion, however, is sought to be drawn from the provisions of section 6 of the drainage law. That section provides that the justice, or the jury if one is impaneled, shall hear the evidence, and if they find that the drain, if constructed in the manner proposed, will not empty into a natural water-course, or into a natural depression leading to such water-course, or into a drain in a public highway, they shall find for the defendant; but if they find that the proposed drain will empty into a natural water-course, natural depression, or highway drain, they shall find for the plaintiff, and allow the defendant his damages. The section then concludes with the following provision: ‘The judgment shall be final and conclusive between the parties until after the expiration of two years from the finding in the former case.’ It will be observed that the provision is not that the judgment of the justice of the peace shall be final, but merely that the ‘judgment [that is, the final judgment in the proceeding] shall be final.’ It may therefore just as properly be held to mean the final judgment on appeal as the judgment pronounced by the justice of the peace. The provision here quoted was undoubtedly inserted as a restraint upon repeated attempts by the parties to litigate the right of one party to extend his drain on the land of the other, and not for the purpose of taking away the right of appeal.
A motion was made in the circuit court by the defendant to dismiss the proceeding on the ground that no bond was given and no sketch or plat of the land to be drained filed before the original summons was issued, as required by sections 8 and 9 of the drainage law. Said motion was overruled, and a cross-motion by the plaintiffs for leave to file a new bond and plat, was allowed. The decision of these motions is assigned for error. We think it sufficiently appears that a bond and plat were filed before...
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Payson v. People ex rel. Parsons
...in which private property is sought to be taken for public highways or railroads. That contention cannot be sustained. In Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415, it was said (page 548, 136 Ill., and page 417, 27 N. E.): ‘If the construction of the statute in question adopted at the tri......
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Drainage District No. 2 of Canyon County v. Extension Ditch Co.
... ... N.E. 1031; Thomas v. Boise City, 25 Idaho 522, 138 ... P. 1110; Chaplin v. Highway Commissioners, 129 Ill ... 651, 22 N.E. 484; Chronic v. Pugh, 136 Ill. 539, 27 N.E ... The ... assessments levied against the lands of remonstrants and ... others by the commissioners were ... ...
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Drainage Com'rs of Town of Niles v. Harms
... ... Commissioners of Highways, 126 Ill. 264, 18 N. E. 765;Oswald v. Wolf, 126 Ill. 542, 19 N. E. 28;Tinker v. Forbes, 136 Ill. 221, 26 N. E. 503;Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415;Town of Brushy Mound v. McClintock, 146 Ill. 643, 35 N. E. 159;Waggeman v. Village of North Peoria, 160 Ill. 277, ... ...
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...a perpetual servitude, constituting a perpetual easement in favor of the city, which is a freehold estate in the land. Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415. Such an estate can be acquired only by deed, prescription, or condemnation. A mere license, whether oral or in writing, is not ......