City of Centralia v. Wright

• Citation: 41 N.E. 217,156 Ill. 561
• Parties: CITY OF CENTRALIA v. WRIGHT.
• Decision Date: 14 June 1895
• Court: Supreme Court of Illinois

156 Ill. 561

41 N.E. 217

CITY OF CENTRALIA

v.WRIGHT.¹

Supreme Court of Illinois.

June 14, 1895.

Appeal from appellate court, Fourth district.

Action on the case by Thomas A. Wright against the city of Centralia. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

This action was brought by Thomas A. Wright against the city of Centralia to recover damages to certain lands caused by the construction of a dam across a certain nonnavigable stream near the city of Centralia, whereby plaintiff alleges water was set back upon his premises, and a ford across said stream and a private way to his land thereby rendered impassable. On a trial before the court, a jury having been waived, plaintiff recovered a judgment for $250, which was affirmed in the appellate court, to reverse which the city of Centralia appealed.Samuel L. Dwight and Frank F. Noleman, for appellant.

W. F. Bundy, for appellee.

CRAIG, J.

It appears from the record that appellee owns 45 acres of land near Centralia, through which a stream of water known as ‘Crooked Creek’ runs. Appellee was a butcher, and used this land for pasturing cattle and other animals purchased for his butcher shop. Several years ago, the Illinois Central Railroad Company constructed a dam across Crooked creek, a short distance below the premises, erected a pump house, established a small system of waterworks, and procured water for their shops, roundhouse, and yards at Centralia. Appellee had a ford where he crossed the creek going to and from his lands, but the dam so erected by the railroad never backed the water over the ford. On the 4th day of March, 1893, the Illinois Central Railroad Company entered into a contract in writing with the city of Centralia, under which the city secured the use and control of the property of the railroad company where its waterworks were located, and all of its plant and machinery, for a period of 20 years, for the purpose of enlarging the waterworks plant, and furnishing a supply of water to the city, and also to the railroad company. The city, among other things, agreed: ‘(1) That it will, as soon as practicable, proceed to establish a system of waterworks upon said demised premises and elsewhere in the said city of Centralia, for the purpose of supplying the public, including the said party of the first part, as hereinafter specified, in the said city of Centralia, with an adequate supply of water; and to that end, and for that purpose, it will alter, improve, and increase the said system of waterworks herein demised, improving and increasing the capacity of the reservor formed in the channel of Crooked creek, by raising the top of said dam to within about four feet of the top of said creek banks, by purchasing and erecting another large boiler and pump, also a large stand pipe and suitable water mains to be erected and placed, so that an adequate supply of water may be furnished to the public and the said party of the first part, at convenient points in the said city of Centralia, and from time to time during the continuance of this contract, increase its said system of waterworks and its facilities for furnishing water, as the demands for the same and the consumption thereof shall require.’ Under this contract, the city of Centralia secured competent mechanics, and removed the top of the old dam until a solid foundation was reached, and then began the construction of a solid stone dam across the entire stream. This dam was raised eight feet, to a point within four feet of the top of the banks of the stream. As a result of the construction of the dam, at the ford where appellee had been in the habit of crossing, the water was three feet, eight inches deep, and spread out sixty feet wide; and, when the creek was raised by rains, the lands of appellee were overflowed.

On the trial in the circuit court, it was contended by the defendant that plaintiff could only recover such damages as had been sustained up to the time the suit was commenced; while, on the other hand, plaintiff insisted he was entitled to recover in the one action all damages for the past, present, and the future. Upon this question the court held in favor of the plaintiff, and this ruling presents the principal question-indeed, the only question of any importance-presented by the record. Under the statute, the city of Centralia, for the purpose of establishing a system of waterworks, had the power to procure and hold all necessary lands, by purchase, lease, condemnation, or otherwise. Hurd's Rev. St. 1893, p. 301. After the lands were acquired for a plant, the city had the power to construct a suitable dam across the stream,...