Clear Creek Drainage & Levee Dist. v. St. Louis

• Decision Date: 16 October 1914
• Docket Number: No. 9540.,9540.
• Citation: 106 N.E. 490,264 Ill. 640
• Court: Illinois Supreme Court
• Parties: CLEAR CREEK DRAINAGE & LEVEE DIST. v. ST. LOUIS, I. M. & S. RY. CO. et al.

264 Ill. 640

106 N.E. 490

CLEAR CREEK DRAINAGE & LEVEE DIST.

v.ST. LOUIS, I. M. & S. RY. CO. et al.

No. 9540.

Supreme Court of Illinois.

Oct. 16, 1914.

Appeal from Union County Court; W. F. Ellis, Judge.

Proceedings by the Clear Creek Drainage & Levee District for the confirmation of an assessment for benefits against the St. Louis, Iron Mountain & Southern Railway Company and against the Illinois Central Railroad Company. From a judgment of confirmation, the railroad companies appeal. Reversed and remanded.

H. L. Browing and L. O. Whitnel, both of E. St. Louis (M. L. Clardy, of St. Louis, Mo., of counsel), for appellant St. Louis, I. M. & S. Ry. Co. I. M. & S. Ry. co.

W. W. Barr and C. E. Feirich, both of Carbondale (Blewett Lee and W. S. Horton, both of Chicago, of counsel), for appellant Illinois Cent. R. Co.

A. Ney Sessions, of Anna (O. B. Dobbins and D. C. Dobbins, both of Champaign, of counsel), for appellee.

CARTER, J.

This is an appeal from the judgment of the county court of Union county confirming an assessment for benefits against the St. Louis, Iron Mountain & Southern Railway Company for $11,807.69 and an annual benefit of $118.08, and against the Illinois Central Railroad Company for $8,224.80 and $82.24 annual benefits, in a proceeding brought in that court by the Clear Creek drainage and levee district under the so-called Levee Act. Hurd's Stat. 1913, p. 920, c. 42.

This district is situated partly in Union county and partly in Alexander county. It is approximately nine miles in length north and south, and extends from the bluffs on the east to the Mississippi river on the west. To the north of the district lies the Preston levee and drainage district and to the south the North Alexander County drainage district. It appears from the record and from the briefs of counsel that the plan of all three of these districts is to build a levee along the east bank of the Mississippi river from the Big Muddy river on the north to Gale, located on the south line of said North Alexander County drainage district, thus preventing an overflow of the lands, each of the districts to take care of the surface and other waters naturally within its boundaries. In the Clear Creek drainage and levee district there are large bodies of swampy land and at some points shallow ponds or lakes. Along the eastern boundary of said district is a natural waterway, called Clear creek, which has its outlet into the Mississippi river at the southwesterly corner of said district. From the record before us it appears that this district plans to build a levee across the mouth of said Clear creek near the point where it enters the Mississippi river and then to drain the waters of that creek through the main outlet of said district, this outlet to extend about six miles southerly through the territory of said North Alexander County drainage district, entering the Mississippi river at or near Gale. The evidence shows that no ditch has been constructed for said six miles to constitute such outlet, but that the authorities of this district were, at the time of the confirmation judgment relying on said outlet being constructed by the authorities of said North Alexander County drainage district, said Clear Creek drainage and levee district paying a part of the cost of digging and constructing said outlet ditch through said North Alexander County drainage district. The report of the commissioners of the district here in question stated that it ‘will be compelled to pay to the North Alexander County drainange district, or the owners of land therein, compensation for a release of damages because thereof, or acquire the right to drain through the said North Alexander County drainage district in some other manner from the North Alexander County drainage district or said landowner.’ The final order of the county court of Alexander county organizing the North Alexander County drainage district, introduced in evidence on this hearing, makes no reference to the appellee district, except to state that the work proposed in the North Alexander County drainage district will be a benefit to the appellee district. The evidence discloses that the North Alexander County drainage district has not acquired all of its right of way for said outlet; that no assessment roll has been filed for the construction of said outlet; that while the commissioners of the two districts have had talks with reference to connecting the ditches of the two districts, no written agreement, setting forth the terms and conditions upon which such connections should be made in the future, had been entered into at the time this case was tried below; that at that time appellee had no record of any agreement on this subject with said North Alexander County drainage district or any one else. Some statements are made in appellee's brief indicating that such an agreement had been made since that date, but we cannot take cognizance of any agreement or understanding between the districts not a part of this record.

[1] Appellants filed certain written objections to the confirmation of the assessment roll in the trial court. Several of these objections were stricken on motion of appellee, among others, one that the right of way for the proposed outlet had not been obtained, the argument in support of this objection being that it would be improper to proceed to confirm the...