City of Aurora v. Gillett
| Decision Date | 30 September 1870 |
| Citation | 56 Ill. 132,1870 WL 6490 |
| Parties | CITY OF AURORAv.WILLIAM B. GILLETT et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONY, Judge, presiding.
This was an action on the case brought by William B. Gillett and Abner Bushee, against the city of Aurora, to recover damages resulting from the flooding of the basement of the Aurora House, in said city, occupied by the plaintiffs, in September, 1867, the flooding occurring, as is alleged, by reason of the gutters on both sides of Main street being filled up, and being otherwise defective. It appears that the Aurora House, which was being used as a hotel, stands on the north-east corner of Main and La Salle streets, and prior to the flooding complained of, the city had extensively graded Main street and put in gutters on both sides of the street, and a culvert across Lincoln avenue, at the top of the hill above the Aurora House, on the south side of Main street, to turn the water from its natural course so as to flow through these gutters down Main street into Fox river, and thus provide, as the city supposed, a better drainage for that street, and the streets crossing it at the top of the hill. It is alleged that by means of such drainage the city had increased the volume of water that would naturally have flowed down Main street. The gutter and the culvert put in by the city drained, at the time of the flooding, a portion of Lincoln avenue and of Main street, above Lincoln avenue, and forced the water from those portions down Main street, where it would not have naturally run, and the volume of the water thus largely increased was forced down Main street, through these insufficient gutters.
A heavy rain occurring, the gutters were filled up with sand and gravel on both sides of the street, and the water about half way down the hill ran across the street (Main street), from the south side, overflowed the platform in front of the Aurora House, and the gutter on the north side of the street being choked up so water could not pass through, the basement of the house was flooded, and the tea, coffee and sugar of the plaintiffs were destroyed, and for the injury this action was brought.
Much testimony was taken on both sides in support and in rebuttal of the theory of the plaintiffs, that the injury was the result of an improper exercise of the power of the city in draining and grading the streets. The court gave to the jury, on behalf of the plaintiffs, the following instructions:
“A city has no more power over its streets than a private individual has over his own land; and it cannot, under the plea of public convenience, be permitted to exercise that dominion to the injury of the property of any one else, in a mode that would render a private individual responsible in damages, without being responsible itself.
If the jury believe, from the evidence, that the city of Aurora, in Main street in said city, fixed the grade and constructed the street and caused to be constructed sewers and drains on said street to carry off the surplus water which necessarily, in case of rains, would run down said street, by reason of said grading; and that, in September, 1867, there came a rain, and said sewers or drains were stopped up, or were otherwise defective, so that they would not carry off the surplus water, and thereby the water from said rain was forced into the basement of the plaintiffs' building, and the plaintiffs thereby damaged, then the jury should find for the plaintiffs to the amount which the proof shows such damage to be.
If the jury believe, from the evidence, that the sewers, drains or gutters on the south side of Main street in the city of Aurora were stopped up or otherwise defective; and that, at the time of the rain storm in September, 1867, the water, by reason of such defect in said sewer, drain or gutter, was forced across Main street toward the premises of the plaintiffs; and that, by reason of the defective drain, sewer or gutter under the railroad track on the north side of Main street, the basement of the Aurora House was flooded by water, and plaintiffs' property damaged, then the jury should find for plaintiffs, to the amount which the proof showed such loss to be.
Although the jury may believe, from the evidence, that prior to the creation of Main street,...
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