Com'rs v. Vill. of East Peoria

• Citation: 53 N.E. 633,179 Ill. 214
• Parties: CANAL COM'RS v. VILLAGE OF EAST PEORIA.
• Decision Date: 17 April 1899
• Court: Supreme Court of Illinois

179 Ill. 214

53 N.E. 633

CANAL COM'RS

v.VILLAGE OF EAST PEORIA.

Supreme Court of Illinois.

April 17, 1899.

Appeal from appellant court, Third district.

Bill by the canal commissioners against the village of East Peoria. From a judgment of the appellate court affirming a decree dismissing the bill (75 Ill. App. 450), complainants appeal. Affirmed.Chiperfield, Grant & Chiperfield, for appellants.

McCullough & McCullough, Page, Wead & Ross, and T. W. Green, for appellee.

This was a bill in chancey filed by the canal commissioners of Illinois, in their offical capacity, in the circuit court of Tazewell county, on May 18, 1898, against the village of East Peoria, a municipal corporation located in Tazewell county, Ill. The bill was amended September 27, 1897, and alleges, in substance, as follows: That the complainants are the canal commissioners of the Illinois & Michigan Canal, and were legally and duly appointed and qualified, and are now acting as public officers of the state of Illinois for the purposes specified by law; that, as such canal commissioners, they are legally vested with the control and general management of the Illinois & Michigan Canal, the property thereto belonging, and the locks, dams, and other improvements for the navigation of the Illinois and Little Wabash rivers, in said state; that such control extends upon the Illinois river from Peru, Ill., to a point 1,000 feet below the Copperas creek lock, and it is made their duty to cause the said canal, locks, river, and appurtenances to be kept in good and sufficient repair for navigationby water; that the Illinois river between the points aforesaid is a navigable stream, and is appurtenant to the said canal, locks, and dams composing the improvement of the Illinois & Michigan Canal, and that such river between the points aforesaid lies wholly within the state of Illinois, and is kept and maintained in a navigable condition by said canal commissioners, who have expended, and who do now annually expend, large sums of money in keeping the channel of said river in an unobstructed condition; that there has been erected at Henry, Ill., on the Illinois river, by complainants, a dam extending across the said river for the purpose of improving the navigation thereof, and creating above said dam, in and upon the said river, a deeper stage of water than would exist in a state of nature; that they have also erected a lock in connection with said dam, which said dam and lock cost the people of the state of Illinois the sum of $408,437.50; that about 75 miles below the lock and dam at Henry, upon the river aforesaid, a lock and dam have been built at Copperas creek by complainants for the purpose of maintaining a greater depth of water in the channel of said river; that the level of the water in said river at said Copperas creek is raised by said dam four feet and eight inches above the natural level of the water in said stream; that the result of the building of the dams and locks at Henry and Copperas creek has been to increase the depth of the water in said river between the said dam at Copperas creek and the said dam at Henry, which constitutes a permanent improvement of the river by permanently increasing the stage of water in said river; that said lock and dam at Copperas creek cost the people of the state of Illinois $358.832.12, and that said locks and dams were erected and are maintained under the supervision of complainants and their predecessors in office; that, in addition to the expense aforesaid to the people of the state of Illinois, the dam and lock at Copperas creek cost the United States the sum of $62,359.80, making the total cost of the Copperas creek lock and dam $421,191.92; that said locks and dams aforesaid have been maintained, kept in repair, and protected by complainants; that the channel of said Illinois river connecting the said dams has been deepened, widened, dredged, and improved, at the expense of the people of the state of Illinois, from the time of the construction of said locks and dams, by complainants and their predecessors in office; that the receipts of the Illinois & Michigan Canal for navigation thereon depend very largely upon a free and unobstructed use of the Illinois river for navigation between the points aforesaid, and that whatever would impede navigation between the said points would thus result in irreparable injury to complainants; that in the vicinity of the village of East Peoria, Tazewell county, Ill., on said Illinois river, about 2 miles therefrom, and between Peru and 1,000 feet below the said lock and dam at Copperas creek, the defendant, for the purpose of changing the course of Farm creek, and for enlarging certain other creeks and constructing drains, ditches, and levees, for the purpose of providing drainage for certain real estate in said county, is constructing, and about to complete, a certain artificial channel 10,000 feet long, and from 70 to 100 feet in width, and of great depth, into which artificial channel it is proposed to turn the course of the said Farm creek and its tributaries and the surface water of the surrounding country, and thereby to discharge the same into the said Illinois river, opposite the city of Peoria, at a point different and other than the natural place of discharge of the waters of said Farm creek; that the said work is being performed by said defendant with all possible speed, night and day and Sundays, and will probably be completed by the 18th or 19th day of May, 1897, and that for such reason the complainants will have no time to give notice of the intended application for injunction; that the Illinois river at the point last aforesaidis a navigable stream, at the ordinary stage of water, of from 500 to 600 feet in width; that the artificial channel so in process of construction, when completed, will extend into the navigable channel of the river at right angles, and will discharge a vast amount of sand, soil, silt, sediment, débris, and other alluvial matter into the same, and that the direct result of such discharge will to be create in the navigable channel of said stream a bank, bar, or barrier that will extend across the said navigable channel, and prove to be an obstruction that will prevent, retard, and hinder the use of said river for the purpose of nabigation, and will constitute an absolute impediment to the carrying trade of this state for the conveyance and carrying of possengers and freight; that, in the event of said bar being formed, a large expenditure of money would be required for dredging the stream, so that navigation could be maintained upon the said river, and the relief thereby afforded would be but temporary in its nature, and would have to be repeated from time to time, as often as the bar should re-form.

There was a prayer for relief, asking that the defendant may make answer, etc.; that it may be ordered to desist from further prosecuting the said work, and from connecting or attempting to connect the said artificial channel with the Illinois river, and to refrain from and desist in attempting to discharge said waters of Farm creek through the said artificial channel, or any other artificial channel, into the said Illinois river, and that the said defendant, its agents and servants, and all persons employed by it, may be enjoined from performing the injurious acts above complained of, and from further prosecuting or completing the construction thereof, and that the complainants may have such other and further relief in the premises as the nature of their case may require. The bill was sworn to, and has attached thereto the affidavit of Clarence E. Snively, asking for an immediate injunction without notice; also the affidavits of William Keough and Leon McDonald in support of the facts set out in the bill. Service of summons was had on defendant, and notice that application would be made for an injunction May 18, 1897, before Hon. N. Green, one of the judges of the said court. No application was made at that time, but notice was given of an intended application for an injunction to be heard before Hon. L. D. Puterbaugh, another judge of said court, August 18, 1897. On the hearing, the application for a temporary injunction was denied.

On August 25th the defendant filed its answer, and an amended answer was afterwards filed to the bill, in substance as follows: That the defendant is not advised of the official capacity of the complainants except by the allegations of the bill, but calls for strict proof thereof; that the defendant is not advised, and neither admits nor denies, that the complainants, as such pretended canal commissioners, are by law vested with the control and general management of the Illinois & Michigan Canal, etc., or of the locks and dams and other improvements of the navigation of the Illinois and Little Wabash rivers, in said state, but defendant expressly denies that such jurisdiction, or any jurisdiction for any purpose whatever, extends over 1,000 feet above the lock at Lockport, upon the south branch of the Chicago river, to the termination of the canal basin at Peru, Ill., and from thence upon the Illinois river to a poing 1,000 feet below the Copperas creek lock, and expressly denies that the complainants have any jurisdiction or authority whatever over the Illinois river from a point 1,000 feet above the Copperas creek dam to a point 1,000 feet below the dam at Henry, and denies that within the territorial jurisdiction aforesaid it is made the duty of complainants to cause said canal, locks, river, or appurtenance to be kept in good and sufficient repair and condition for navigation by water; admits that from Peru, Ill., to a point 1,000 feet below Copperas creek dam, in said state, the Illinois river is a navigable stream for the use of boats and commerce, but expressly denies that the same is within the territorial jurisdiction of the complainants, as alleged, or that the same is...