Elgin Hydraulic Co. v. City of Elgin

• Citation: 62 N.E. 929,194 Ill. 476
• Parties: ELGIN HYDRAULIC CO. v. CITY OF ELGIN.
• Decision Date: 21 February 1902
• Court: Illinois Supreme Court

194 Ill. 476

62 N.E. 929

ELGIN HYDRAULIC CO.

v.CITY OF ELGIN.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, Second district.

Action by the Elgin Hydraulic Company against the city of Elgin. From a judgment of the appellate court reversing, without remand, a judgment of the trial court in favor of plaintiff, it appeals, on certificate of importance. Affirmed.

J. W. Ranstead, Chas. Wheaton, and D. B. Sherwood, for appellant.

Chas. H. Fisher and J. M. Manley (R. N. Botsford, of counsel), for appellee.

CARTER, J.

This was an action on the case, brought by the appellant against the appellee in the circuit court of Kane county, to recover damages for an alleged diversion of water of Fox river from a certain dam and race ways possessed by the plaintiff. By agreement trial was had before the court without a jury, and a judgment was rendered against appellee for one cent and costs. The appellee appealed, and the appellate court for the Second district reversed the judgment, without remanding the cause, but granted to the plaintiff below a certificate of importance and an appeal to this court.

The declaration alleged, in substance, that the plaintiff was lawfully possessed of a dam, with head gates, race ways, and appurtenances, across Fox river at Elgin, and was authorized by law to preserve the water power of said river created by said dam, and to regulate the use of the same, for the benefit of its stockholders, who operate mills on said river by such water power, and that the plaintiff had expended a large sum of money on said dam and race ways, and had made said water power of great value; that the city of Elgin became the owner of an acre of land on the bank of said river one-fourth of a mile above said dam, where it erected a pumping station, and wrongfully pumped from the river large quantities of water with which to supply its customers, and for its own use for the putting out of fires, and for other purposes, and had thereby diverted and kept such water from flowing to said dam and through said race ways, and from supplying the latter with water for the use of the mills of the plaintiff's stockholders; that by reason thereof the water of the river was insufficient to enable the stockholders to operate their mills in so large a manner as they otherwise would, whereby the plaintiff was deprived of the full and beneficial use of its property, and of the benefits, profits, and gains thereof, without the defendant having made any compensation therefor.

It appears that the dam was erected in 1839 by William C. Kimball and James T. Gifford in pursuance of authority granted by the legislature (Laws 1839, p. 108), and that in 1842 Kimball obtained a patent for land on the west bank of the river and Gifford for the land on the east bank. Afterwards mills were built on the banks of the river below the dam, and race ways were constructed to carry water to furnish water power to run these mills. In 1867 the owners at that time of the mills, the dam, and race ways, and the lands on which they were constructed, procured an act to be passed by the legislature incorporating the Elgin Hydraulic Company, naming certain persons as incorporators, ‘being the owners of water power created by the dam.’ 2 Laws 1867, p. 88. Every owner of such water power was authorized to subscribe for one share of stock in the company, which would entitle him to one vote at all meetings of the stockholders for every inch of water power so owned by him. No certificates of stock were ever issued, but inches of water power of each member of the corporation were the measure of his interest and voting capacity in the corporation. The remaining sectionsof the act (Id. pp. 89-91) provide, in substance, as follows: By section 3 said corporation is to be managed by a board of directors of three stockholders, to be chosen annually, at times and in the manner as shall be provided by the by-laws. By section 4 the duty of said corporation, through its board of directors, shall be ‘to keep and maintain the dam across the Fox river, at Elgin aforesaid, in good and perfect order and repair at all times, and also to maintain and preserve the race ways on each side of said river, and generally to do such other acts and things for the preservation and maintenance of said water power as the said board of directors may deem necessary and proper.’ By section 5 the further duty of the board shall be ‘to so regulate gates, flumes and apertures drawing water from said race ways of each of the stockholders of said corporation, so as to prevent each of said stockholders from drawing or using more water than properly belongs to him, her or them. Said directors are authorized for that purpose, at any time, to enter upon the premises of any stockholder and change, alter or repair the gates, flumes or other apertures for drawing water from the race ways, and to prevent the use of more water than each is entitled to use, and to stop leakage and waste of water; and all expenses incurred in enforcing the provisions of this section shall be assessed by said board to the stockholders upon whose premises such expenses are incurred, and collected in the manner herein provided for the collection of other assessments by said board.’ By section 6 the directors are authorized to regulate the drawing of water from the dam and race ways in time of low water, and to direct the manner of drawing the same, so as to insure to each a full and just proportion of said water power. By section 7 the expenses of making repairs and performing the duties of the board shall be estimated, and the amount required to be paid therefor shall be ratably assessed upon the stockholders ‘in proportion to the number of square inches owned or represented by them, respectively.’ Section 8 provides for the making of such assessment, the notice of the same to be given, and names of service upon each stockholder. By section 9, upon notice being given, such assessment becomes due and payable to the treasurer of said corporation. Section 10 provides, in case of nonpayment, how this assessment shall be collected: ‘Provided, however, that no assessment shall be made against any stockholder of said corporation except upon the basis of the number of square inches of water power owned or represented by him or her as compared to the whole amount of said power.’ Section 11 provides the manner of collecting judgments rendered on assessment. Section 12 makes the judgments recovered a lien upon the water power against which the same are assessed. Section 13 allows the bringing of suits for the collection of assessments. Section 14 provides for by-laws creating a penalty for the violation of the rules and regulations made by the directors for drawing water. Section 15 makes the act a public act, and provides that in its enforcement it shall be favorably construed in the enforcement of its provisions.

The evidence showed that the city...