Edwards v. Haeger

• Decision Date: 17 June 1899
• Citation: 54 N.E. 176,180 Ill. 99
• Parties: EDWARDS v. HAEGER.
• Court: Illinois Supreme Court

180 Ill. 99

54 N.E. 176

EDWARDS

v.HAEGER.

Supreme Court of Illinois.

June 17, 1899.

Appeal from circuit court, Kane county; Henry B. Willis, Judge.

Bill by Henry C. Edwards against David H. Haeger for an injunction. From a decree dissolving a temporary injunction and dismissing the bill, complainant appeals. Reversed.John W. Ranstead, David B. Sherwood, and Hopson & Hollembeak, for appellant.

Botesford, Wayne & Botsford, for appellee.

On a motion entered by the appellee, the circuit court of Kane county rendered a decree that a temporary injunction granted on a bill filed by the appellant be dissolved, and that the bill be dismissed. This is an appeal to bring the decree in review in this court. It appeared from the allegations of the bill that in the year 1848 one Thomas Deweese owned a number of town lots in the village of East Dundee, and also a tract of land adjoining said lots on the north; that on certain of the lots was situated a grist mill operated by water power; and that water was conducted to the mill race by means of a ditch which extended in a northerly direction through the said tract of land, and gathered water from two parcels of wet, springy land on said tract, and from a small water course which meandered through the northern portion of the tract. On the 7th day of January of that year, Deweese conveyed the lots on which the mill was situated, together with other of the lots, to one Daniel M. Green. The deed conveyed the mill and its appurtenances and a strip of ground on each side of the water conductors in certain lots not conveyed by the deed, and contained a clause as follows: ‘As, also, the right of way and entry through and upon the lands of the said Deweese at any time for the purpose of repairing and improving either branch of the mill race which carries the water to the said mill, the said Green doing as little damage as the circumstances will permit; as, also, the right to cut a ditch or ditches on any part of the now wet land of the said Deweese at any time, for the purpose of conveying the water to either branch of the race aforesaid.’ The mill and its appurtenances passed by mesne conveyances to the appellee, Haeger. These conveyances also purported to invest the grantees thereof with the same water rights in the tract of land as did the deed from Deweese to Green. Appellant, Edwards, on October 14, 1875, succeeded to the title held by Deweese to the tract of land by conveyance made subject to the rights vested in the owners of the mill property by the clause incorporated in the deed made by Deweese to Green. In 1884 or 1885 appellant sunk a well in one of said wet, springy parcels on the east side of the mill ditch, and by means of an underground pipe conducted water from the well westwardly under the mill ditch to his dairy barn on his lands west of the mill ditch. In May, 1896, the appellee contended this pipe conducted water from the source of supply of water he was entitled to enjoy for the use of his mill under the conditions expressed in the Deweese deed, and that he needed the water to supply power for the mill, and caused the pipe leading from the well to be cut off. Appellant then dug a well about 110 feet northeasterly from the old well, and, as he claimed, upon hard, dry land, and beyond the margin of said wet, springy land, with the intention of conveying the water from the new well, by means of an underground pipe, under the mill ditch, to his barn and other buildings on the westerly side of the mill ditch. The appellee ordered appellant's workmen away, filled up a part of the ditch which the workmen were excavating, and served upon appellant a written notice demanding he should suspend the work of opening the ditch or laying pipe therein, and notifying appellant that he (the appellee), without further notice, would remove any pipe thereafter placed by appellant leading through or under the mill ditch. The bill further alleged that the new well was excavated in hard, dry land of the appellant, and at a distance of 110 feet from the edge of the wet land; that there is not, and never had been, any flowing water from the site of the new well to the mill ditch or the said wet land, but that the water which collected in the well was underground percolating water, and that the pipe leading therefrom was placed at such a distance underground as that it would in no wise interfere with the mill ditch. The bill also alleged that the appellant had maintained a barn for his dairy cattle on his premises on the westerly side of said ditch, and that his barn was fitted with a system of pipes and drinking fountains for the purpose of conducting water to cattle in their stalls, and to other parts of the barn, for cooling milk; that complainant has not on his farm or elsewhere any supply of water for his pipe system in the barns and cooling vats except eastward up the hill beyond the Haeger ditch, same as he sought to use from the new well; that his said dairy consisted of an average of from 100 to 125 cows; that by reason of the use of the drinking fountains supplying the water constantly to the cattle in their stalls, the cattle thrived much better than by any other method, resulting in increased profits from the dairy; that the loss of the same by Haeger's cutting off the water amounted to the destruction of a valuable right that could not be compensated in damages; that if said Haeger is allowed to cut off the water as he has done, and threatens to continue doing, and which complainant believes he will do unless restrained by order of the court, complainant will suffer great and irreparable injury, etc. The bill further alleged that, after the serving of the said notice by appelle on appellant, appellee entered appellant's land, and excavated and removed soil and material therefrom, the same not being part of the banks of the ditch or any part of the wet land, but being hard, dry land, comprising no part of the reservations mentioned in the Deweese deed. The relief prayed for was that a temporary injunction should issue, restraining the appellee from interfering to prevent the appellant from excavating a ditch and placing a pipe therein, as contemplated by him, and for an accounting concerning the damages done by the appellee in excavating the soil aforesaid, and for the damages in depriving the appellant of water for his stock, etc., and for a decree ordering the appellee to fill up the excavations made by him, and to restore the premises to their former condition, and that the temporary injunction be made permanent. A temporary injunction was issued as prayed on the 3d day of September, 1896, and appellant proceeded at once to complete the work of laying the underground pipe from said new well to his barn. Appellee answered the bill on the 29th day of October, 1896, and replication thereto was filed on the same day. Ex parte affidavits were prepared by the contending parties during the months of October and November, 1896, but no steps were taken in court in the cause, and no...