Funston v. Hoffman

Decision Date20 February 1908
Citation232 Ill. 360,83 N.E. 917
PartiesFUNSTON v. HOFFMAN.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Moultrie County; W. G. Cochran, Judge.

Action by John W. Funston against Harmon Hoffman. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. J. Myers, John E. Jennings, and W. K. Whitfield, for appellant.

John R. Eden, J. K. Martin, and E. J. Miller, for appellee.

This was an action on the case brought by appellee in the circuit court of Moultrie county against appellant for damages to appellee's crops in 1905 and 1906, caused by the appellant having removed certain tiling through which passed the water drained from the land appellee was cultivating as a tenant of Jacob Dumond. The jury found for appellee, and assessed his damages at $400. Appeal is now prosecuted to this court. It appears from the evidence that appellant, since some time before 1890, had owned the land upon which was situated the outlet of the tile drain in question. At about that date the next tract east of his land was owned by the heirs of one Isaac Smith, deceased. The tract east of that was owned by one Ascherman, and the tract east of Ascherman's was owned by Jacob Dumond. It appears that Ascherman desired to drain his land, by means of tiling, into an outlet on Hoffman's land, and asked and received permission from Hoffman to cross his land, and from Dumond, the administrator of Smith, to cross the Smith tract with the drain. As a part of the agreement with Dumond it seems that Ascherman agreed, in consideration of $100 paid him by Dumond and the latter's consent, as administrator, to crossing the Smith land, that Dumond might connect to the tile drain two tile drains from his own farm. Said tile drains were so connected, and for some 15 years or more before the acts herein complained of discharged the water from the Dumond tract, through the tile drain built in accordance with the permission heretofore spoken of, across the Ascherman, Smith, and Hoffman tracts, into the outlet on the latter tract. In 1905 Hoffman caused the tiles composing the portion of the drain on his tract to be taken up, and the mouth of the tiling where it entered his land to be plugged. Appellee, Funston, had been renting Dumond's farm for a number of years and had planted it mostly in corn. On account of the drainage being cut off, the water collected in two or more natural depressions on the farm cultivated by him, and drowned out the corn grown in such depressions for the years 1905 and 1906. This caused the loss for which he recovered the judgment here in question.

CARTER, J. (after stating the facts as above).

A motion by appellee to dismiss the appeal in this case on the ground that no freehold was involved was taken with the case. The issues involved necessarily require this court to determine the existence or nonexistence of a perpetual easement in the land of appellant. Such an easement is a freehold interest. Wessels v. Colebank, 174 Ill. 618, 51 N. E. 639;Oswald v. Wolf, 126 Ill. 542, 19 N. E. 28;Chronic v. Pugh, 136 Ill. 539, 27 N. E. 415. Appellee based his right of recovery upon the existence of a perpetual easement over the lands of appellant. The existence of this easement was denied by appellant, and his assignments of error question its existence. This appeal therefore involves a freehold, and the motion to dismiss for want of jurisdiction must be overruled.

The contention is made that the court erred in not directing a verdict at the conclusion of all the evidence. It is insisted that there is no proof in the record that appellant gave his consent to the construction of the drain in question with knowledge that the tiling from Dumond's land was to be connected therewith. Whether or not appellant knew that Dumond and Ascherman had made the agreement above set forth to connect their drains is not clear from the record. Ascherman testifies that he supposed the appellant knew that fact, although he does not remember that he stated it to him directly in terms; and the latter testifies positively that Ascherman said nothing about Dumond connecting with this tile. The evidence heard tends to show that appellant received notice that the Dumond and Ascherman drains were connected, if he did not already know it, some three years before he took up this tile. There is some controversy, however, as to the exact time when this information was received and its character. We think that some of the surrounding facts and circumstances tend slightly to show that the appellant knew, at the time Ascherman's drain was built, that Dumond's drain was to be connected with it. There seems to be no dispute in the evidence as to Dumond's land naturally draining westerly across the Ascherman, Smith, and Hoffman tracts. We do not think the court erred in refusing to take the case from the jury on the ground that there was no proof of consent by appellant.

The further contention is made that the motion to direct a verdict should have been sustained on the ground that there is no evidence that an easement existed over the tract immediately east of the Hoffman tract, which, at the time the drain was put in, was owned by the Smith heirs. The evidence tends to show that Ascherman bought the Smith tract at an administrator's sale shortly after the drain was put in, and that a year or two before this suit was commenced he sold both tracts-the one he originally owned and the one so purchased-to Reuben Daugherty. The evidence shows that the only consent that was given to construct a drain across the Smith 40 at the time it was made was given by Dumond, as administrator of the estate. The statute of 1889 (Hurd's Rev. St. 1905, p. 832, c. 42, § 187) provides for the construction of either open or covered drains ‘by mutual license, consent or agreement of the owner or owners of adjoining or adjacent lands, either separately of jointly, so as to make a continuous line upon, over or across the lands of said several owners.’ Appellant argues that this statute contemplates the consent of the owners of the fee, either in person or by some duly authorized agent. But, even if this contention be correct (which we do not now pass upon), appellant is in no position to take advantage of the point raised. At the time he gave his consent to Ascherman to drain into his land across the Smith 40, no question was raised as to the legal right to build the drain across the Smith 40. Appellant does not deny that he consented that the drain could be extended from this 40 across his land and into an open ditch thereon. He had the authority to consent to this arrangement. To permit him now to raise the objection that the consent of other owners was not properly obtained, and that, therefore, he could not be held to his agreement, would not be in accord with this drainage act or sound public policy. Moreover, if any attempt were to be made by the present owner of the Smith tract to raise this question at this late day, after the drain had been allowed to remain for many years after the tract was sold at administrator's sale, it might well be argued that he would be estopped. The precise question raised here does not seem to have been passed upon by this court; and no authority in point from other jurisdictions has been cited. It has been held, however, that the fact that a right of way over private property where the drain is to be constructed has not been obtained is no defense against a special assessment which can be raised by the other taxpayers if the authorities have the right to procure the right of way at any time; that such question is between the authorities and the landowner. 2 Farnham on Waters and Water Rights, § 239, p. 1109. This court has held if a sewer is constructed over private property with the knowledge of the owner, and he makes no objection thereto, and takes no steps to prevent the same, he will thereafter be estopped from making any claim to compensation, and the ordinance will not be void because the sewer is over private ground. Neither will the assessment for the construction be defeated on that ground. Village of Hyde Park v. Borden, 94 Ill. 26. See, also, Maywood Co. v. Village of Maywood, 140 Ill. 216, 29 N. E. 704;Leman v. City of Lake View, 131 Ill. 388, 23 N. E. 346;Walker v. People, 170 Ill. 410, 48 N. E. 1010. It is true at common law an easement could only be secured by grant or prescription. Schmidt v. Brown, 226 Ill. 590, 80 N. E. 1071. But under this statute the construction of independent open ditches or tile drains by owners of adjoining lands, and subsequent connection so as to form a continuous system of drainage across the lands of several owners, would by mere acquiescence, and, without any special agreement or license, bring the drainage system thus formed within the statute. Ribordy v. Murray, 177 Ill. 134, 52 N. E. 325;Hunt v. Sain, 181 Ill. 372, 54 N. E. 970. We think all of the decisions that have been rendered construing this statute tend to uphold the conclusion that an owner of land who has given his consent to the construction of a ditch, as did the appellant in this case, is estopped from denying that there is a perpetual easement on his land on the ground that some other owner of land in such a system of drains did not legally consent thereto.

The further contention is made that the court improperly admitted evidence as to the damages to the crops of appellee for the year 1906. There was no written lease between appellee and the owner of the land, Dumond. Appellee had been a tenant on the Dumond land for some years. Both he and the owner, Dumond, testified that the lease was made from year to year, and that the lease for the year 1906 was made in August, 1905. The tiling in question was taken up in the spring of 1905-not later than April of that year. Appellee testified that, when he made the lease for the year 1906, he knew the tile had been taken up, and the effect its removal had on his crops...

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18 cases
  • Magnolia Petroleum Co. v. Thompson
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • December 4, 1939
    ...grant of estates of different types. A fee and a perpetual easement, as in these deeds, are both freeholds in Illinois. Funston v. Hoffman, 232 Ill. 360, 83 N.E. 917, 918. Both may be conveyed subject to conditions and limitations. But the description of the use or easement in the one canno......
  • Wing v. Martin, 14790
    • United States
    • Idaho Supreme Court
    • September 25, 1984
    ...that was not in existence at the time of the wrongdoing. (Tankersley v. Peabody Coal Co., 31 Ill.2d 496, 202 N.E.2d 498; Funston v. Hoffman, 232 Ill. 360, 83 N.E. 917; 51C C.J.S. Landlord and Tenant § 354, p.892.) Therefore, we must reverse this decision and limit the time span of plaintiff......
  • Schimmelfennig v. Grove Farm Co.
    • United States
    • Hawaii Supreme Court
    • July 11, 1955
    ...and stipulations contained in the original lease only so far as are applicable to the new condition of things.” (Funston v. Hoffman, 232 Ill. 360, 83 N. E. 917, 920.) The houses and stone wall being nonexistent at the inception of the first holdover period following the expiration of the or......
  • Drainage Com'rs of Town of Niles v. Harms
    • United States
    • Illinois Supreme Court
    • February 19, 1909
    ...172 Ill. 415, 50 N. E. 118;Wessels v. Colebank, 174 Ill. 618, 51 N. E. 639;Perry v. Bozarth, 198 Ill. 328, 64 N. E. 1076;Funston v. Hoffman, 232 Ill. 360, 83 N. E. 917. Chronic v. Pugh, supra, was a proceeding under sections 4 to 10 of the farm drainage act to obtain the right to construct ......
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