Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago

• Decision Date: 05 October 1929
• Docket Number: No. 19360.,19360.
• Court: Illinois Supreme Court
• Parties: COAL CREEK DRAINAGE & LEVEE DIST. v. SANITARY DIST. OF CHICAGO.

336 Ill. 11

167 N.E. 807

COAL CREEK DRAINAGE & LEVEE DIST.

v.SANITARY DIST. OF CHICAGO.

No. 19360.

Supreme Court of Illinois.

June 19, 1929.

As Modified on Denial of Rehearing Oct. 5, 1929.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Schuyler County; Fred G. Wolfe, Judge.

Action by the Coal Creek Drainage & Levee District against the Sanitary District of Chicago. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Reversed and remanded.

See, also, 328 Ill. 360, 159 N. E. 805.

Farmer, C. J., dissenting.Maclay Hoyne, of Chicago, W. H. Dieterich, of Beardstown, and John W. Beckwith and Walter E. Beebe, both of Chicago, for plaintiff in error.

Thomas E. Bottenberg, of Rushville, and Barnes & Magoon, of Lacon, for defendant in error.

HEARD, J.

This cause is here on certiorari to review a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of Schuyler county in favor of defendant in error, against plaintiff in error, in the sum of $98,089.62, damages resulting from an alleged unlawful overflowing of the property of appellee. The trial court, upon a hearing, fixed the sum of $15,000 as reasonable attorney's fees for defendant in error to be taxed as costs, and also an additional fee of $5,000 in the event the case should be appealed.

This suit was brought under section 19 of ‘An act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois rivers,’ in force July 1, 1889 (Laws 1889, p. 125), which provides that every sanitary district shall be liable for all damage to real estate within or without such district which shall be overflowed or otherwise damaged by reason of the construction, enlargement or use of any channel, ditch, drain, outlet or other improvement under the act, and provides that action to recover damages may be brought in the county where such real estate is situated or in the county where such sanitary district is located, at the option of the party claiming to be injured. Said section further provides that upon notification of the trustees, before suit is commenced, of intention to sue, in case judgment is rendered against such district the plaintiff shall recover his reasonable attorney's fees.

The declaration originally consisted of two counts. A demurrer to a plea was carried back and sustained to the first count and plaintiff abided by the count. The second count of the declaration is in substance as follows: That the said defendant from the 1st day of January, 1921, until the date of the commencement of this suit, willfully, recklessly, unlawfully, improperly, and without any authority of law, by discharging waters from a certain sanitary district channel owned and operated by it into the Illinois river, did overflow, flood, injure, break down, wash away, and destroy the levees, dikes, pumping station, ditches, and tile drains of the plaintiff, a drainage district duly organized under the laws of the state of Illinois, and which were located in the county of Schuyler, and did thereby hinder and prevent plaintiff from having the use, benefit, and enjoyment thereof in so large and ample a manner as it might and otherwise would have done, and did put plaintiff to great cost and expense in the repair, rebuilding, and reconstruction of the same, to sit, the sum of $250,000.

By leave of court an additional count was filed, which, after being amended, alleged, in substance, the organization of plaintiff as a drainage and levee district by the order of the county court of Schuyler county, entered on the 28th day of December, 1896; that after said organization it acquired certain rights of way for the purpose of constructing the works of said drainage district thereon, and from thence hitherto has been the owner and in possession of said rights of way; that afterwards, in the year 1897, and at divers times subsequent thereto and prior to the commencement of this suit, plaintiff constructed its levees, interior open ditches, tile drains, pumping station, dwelling house, buildings, and other works on the rights of way. It alleged the organization of defendant, the Sanitary District of Chicago, the construction of its dams, canals and channels, and that on January 17, 1900, defendant turned therein the waters from Lake Michigan, the Chicago river, and the watersheds adjacent thereto, and the sewage from the district, and caused the same to flow into the Illinois river above the plaintiff district; that said waters increased in quantity during each succeeding year, and defendant constructed controlling works, by which it could regulate and control the amount of water and sewage flowing through the canal into the Illinois river; that by the act of the Legislature authority was granted to defendant to flow and discharge waters from Lake Michigan and from said district through the drainage canal, and thence by divers channels and water courses into the Illinois river, and that the amount of said flowage was to be based upon the number of people resident within the district; that there was required to be a steady, uniform flowage based upon said population, with the right and authority to increase the same as the population increased; that up to a period ending five years prior to the commencement of this suit the population of the sanitary district was not to exceed 2,400,000 people, and that, based thereon and thereunder, the sanitary district was authorized to discharge and did discharge,through the drainage canal a large quantity of water, to wit, 480,000 cubic feet per minute, which flow of water plaintiff avers was ample at all times to properly dilute the sewage of said district and to keep and maintain the waters of the canal so that the same should be neither offensive nor injurious to the health of any of the people of this state; that, with the period beginning five years prior to the commencement of this suit, defendant, not regarding said statute, willfully, wrongfully, improperly, and unlawfully and for the purpose not only of carrying away and diluting the sewage of the city of Chicago and the area within the sanitary district, but also in part for the purpose of generating electrical power for the use, profit, and benefit of the sanitary district, did discharge through the sanitary district canal a much greater flow and quantity of water from Lake Michigan and from said district through the Chicago river, and also through the sanitary district canal, than was necessary or required for the purposes of said act or authorized or permitted by it-that is to say, to keep the water of the district in such condition that the same should be neither offensive nor injurious to the health of any of the people of the state of Illinois, and vastly in excess of the amount and quantity which it was authorized and permitted to flow by and under the laws of the state of Illinois; that defendant during said period of five years prior to the commencement of this suit so discharged not less than the quantity of 1,400,000 cubic feet per minute of water from Lake Michigan and from the sanitary district through the Chicago river, and also through the sanitary district channel, at various times and periods during the five years immediately prior to the commencement of this suit; that particularly in times of flood in and upon the Illinois river, when the waters thereof were swollen and filled the natural channel of the stream to its full capacity and overflowed the same, defendant willfully, wrongfully, unlawfully, and without any authority of law discharged all of the waters from Lake Michigan and from the sanitary district through the Chicago river and other channels into the Illinois river that could be sent by it through the channel of the drainage canal, and that at times the flow of water in said channel amounted to 1,600,000 cubic feet per minute, which respective flows of the sanitary district, as above set forth and averred, exceeded the flow thereof prior to the commencement of the five-year period prior to the commencement of this suit by a large amount, to wit, the respective quantities as above set forth per minute more than had been theretofore flowed through the canal and channel during the period from the commencement of the flow through the channel and ending with the period five years prior to the commencement of this suit; that during said period of five years prior to the commencement of this suit, wholly without right or authority, it has continued continuously and unlawfully to discharge said quantity of water wrongfully and in disregard of the rights of those persons owning property adjacent to the Illinois river, and particularly in disregard of the rights and property of the plaintiff herein; that the effect of said excessive discharge was to raise the level of the Illinois river in times of flood and high water in the river to a greater height than it otherwise would have been raised, to wit, to the height of three feet, and in times of low water was to raise the level of the water in said river to a greater height than it would otherwise have been raised, to wit, to the height of six feet above the stage of water in the Illinois river, had the same been confined to the natural flow of water in the Illinois river and the authorized flow of defendant herein as the same had been flowing for a period prior to five years before the commencement of this suit; that prior to the five years before the commencement of this suit the lands of plaintiff within the drainage district had not been overflowed or flooded since the date of the construction of the drainage district by the water of the Illinois river adjacent thereto nor had its dikes and levees been overflowed or destroyed; that from and after a period beginning five years prior to the commencement of this suit, solely and entirely by reason of the unlawful flow and discharge from ...