Daum v. Cooper
| Decision Date | 17 February 1904 |
| Citation | 208 Ill. 391,70 N.E. 339 |
| Parties | DAUM v. COOPER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lee County; O. E. Heard, Judge.
Bill by John Daum against Ira Cooper. From a decree dismissing the bill, plaintiff appeals. Affirmed.
Geo. D. O'Brien and Henry S. Dixon, for appellant.
D. W. Baxter, for appellee.
This was a bill in chancery filed by the appellant, praying that appellee be enjoined from cutting a ditch in his (appellee's) farm, and causing water to flow out of its natural course to and upon the lands of appellant. The cause was heard upon bill, answer, replication, and proofs produced in open court, and a decree was entered dismissing the bill for want of equity, from which decree this appeal has been perfected.
A motion submitted by the appellee to dismiss the appeal for want of jurisdiction was reserved to the hearing, and will be overruled for reasons that will be made apparent in the course of the opinion.
The appellant and the appellee are the owners of adjoining farm lands in the town of Alto, in Lee county. The lands are all situated in section 29, town 39 north, range 2 east. The appellant is the owner of the west half of the southeast and the east half of the southwest quarter of said section, and the appellee's lands are described as the east half of the northwest and the northeast quarter of the said section. Appellee's dwelling is located on the northeast corner of the west half of the northeast quarter, which tract, together with the 80-acre tract immediately west of it, will be designated hereafter as the appellee's home place. A public highway runs east of this home tract of appellee's land, dividing it from the east half of the northeast quarter, which latter tract will be, for convenience, hereafter called the ‘rody Place.’ This highway runs south along the east side of the lands of the appellant. There is a highway along the north side of appellee's lands. The following plat will aid to a clearer understanding of the location of these lands, and of what will hereafter be said in this opinion as to ditches and water courses:
Image 1 (4.59" X 4") Available for Offline Print
Two small water courses ran from the Rody place across the highway westwardly into appellee's home tract, and another water course entered his home tract near the center thereof, on the north side. The natural flow of the water from all of these water courses was to the west and southwest. It seems from the testimony that the water did not flow in any well-defined channels in the westerly or southwesterly portion of appellee's home place, but that the land there was low and flat, and the water found its way in slight depressions to the west and southwest. The appellee contended, and the testimony in his behalf tended to show, that a portion of this water flowed from his land onto a portion of the northwestern corner of the lands of the appellant; but the testimony in behalf of the appellant tended to show that the water would, in a state of nature, flow across appellee's west line of his home place at points from 20 to 60 rods north of the northwest corner of the lands now owned by the appellant. The northwest portion of appellant's land and the southwest portion of appellee's land were flat and low and wet, and the truth of either contention could not be well declared from the proof.
The lands belonging to the appellant formerly belonged to one Jeptha Mitten. In the year 1871 the appellee and the said Jeptha Mitten, by mutual consent and agreement, constructed a line of ditches beginning on the west line of appellee's home place, about 100 rods north of his southwest corner, and extending thence south along the west line of the appellee's home place to the northwest corner of Mitten's land (now appellant's tract); thence south along the west line of Mitten's land a distance of 80 rods. Appellant became the owner of the Mitten land in 1875.
In 1886 the appellee claimed that the highway commissioners, in grading and improving the highways near the northeast corner of his home place, had obstructed the natural flow of the water coming from the east and north, and caused the same to flood his dooryard and premises about his house in the northeast corner of the home tract. This complaint on the part of the appellee resulted in an agreement with the commissioners of highways, made in 1886, under which the appellee was permitted to construct, and did then construct, at his own expense, a ditch in the west ‘bench’ of the highway, which ran north and south, beginning in the west bench of the said highway, at the northeast corner of his home place, and extending from thence south to within about four feet of the south line of his land. This ditch intercepted the waters which would otherwise flow on the northeasterly portions of his home place because of the construction of the grade of the highway, and also the waters which would otherwise flow on the easterly part of his home place from the two water courses coming from the Rody place, and would conduct all such water down the ditch to the south end thereof, near the southeast corner of his home place. The appellee at the same time caused a ditch to be dug on his own land in the south part of his home place, from the south end of this ditch on the west side of the highway, west to his own ditch near the southwest corner of his home place. These ditches were constructed in 1886, and conducted the water which otherwise would have come upon the home place upon the northeast corner thereof, and from the Rody place, south in the ditch in the highway to the ditch leading west on his own land; thence in the latter ditch west to the appellee's ditch on the west line of his home place, and within a few feet of the north end of the Mitten ditch, into which latter ditch the water would then be conveyed by the ditch on the west line of appellee's lind.
In 1888 the Inlet Swamp drainage district was organized, and a number of ditches were dug for the purpose of draining the lands west and south of that of these litigants. The plans of the drainage district contemplated the construction of a ditch from the north main ditch of the drainage district almost due northwest to the southwest corner of appellee's home farm, which was also the northwest corner of Daum's farm, and also the junction of the Cooper and Mitten ditches, and a few feet south of the western outlet of the ditch constructed by the appellee from the north and south highway in the south part of his home place to the southwest corner thereof, as before described. The appellant interceded with the commissioners of the drainage district, and induced them to abandon the proposed ditch to the southwest corner of appellee's land, and arranged with them to cut the ditch eastwardly to the south end of the Mitten ditch; and, to secure this action on the part of the commissioners, the appellant agreed with them that he would clean out the Mitten ditch, and keep it in good condition to conduct the water which came into it. After the...
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Van Meter v. Darien Park Dist.
...water onto the property of an adjacent landowner. See Templeton v. Huss, 57 Ill.2d 134, 141, 311 N.E.2d 141 (1974); Daum v. Cooper, 208 Ill. 391, 397-98, 70 N.E. 339 (1904); see generally 36 Ill. L. & Prac. § 3, at 53 (1958) ("an upper landowner has no legal right to collect and discharge o......
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Templeton v. Huss
...naturally flow in that direction'. (Anderson v. Henderson, 124 Ill. 164, 170, 16 N.E. 232, 234 (1888); see also Daum v. Cooper, 208 Ill. 391, 397--398, 70 N.E. 339 (1904); Elliott v. Nordlof, 83 Ill.App.2d 279, 227 N.E.2d 547 (1967).) The liability of the Village of Oreana was properly pred......
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Coomer v. Chicago and N. W. Transp. Co.
...lands of an adjoining proprietor water which would not in a course of nature flow upon such adjoining premises." (Daum v. Cooper (1904), 208 Ill. 391, 397-98, 70 N.E. 339, 342.) The dominant owner also may improve the natural flow within his land which increases the natural flow onto the se......
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Dettmer v. Illinois Terminal R. Co.
...water on the servient lands out of the natural channel. The second rule of law, as contended, is a well-established rule. Daum v. Cooper, 208 Ill. 391, 70 N. E. 339. While this is a true proposition of law, it is to be further understood that the natural course of a stream of water cannot b......