Haigh v. Lenfesty

CourtSupreme Court of Illinois
Citation239 Ill. 227,87 N.E. 962
PartiesHAIGH v. LENFESTY et al.
Decision Date09 April 1909


Appeal from Circuit Court, Kankakee County; Frank L. Hooper, Judge.

Action by Frank Haigh against John T. Lenfesty and others. From a decree for defendants, complainant appeals. Affirmed.Small & Brock, for appellant.

W. R. Hunter, for appellees.

This is an appeal from a decree of the circuit court of Kankakee county dismissing for want of equity a bill for injunction and other relief brought by appellant against the appellees.

The bill alleges that appellant is the owner of 189 acres of farm land in Aroma township, adjoining the Kankakee river on the north side thereof; that appellees are the owners of a strip of land containing 14 acres, lying on both sides of said river and immediately below that of appellant; that for more than 30 years there have been located on said lands of appellees a stone gristmill, flourmill, straw board mill, and other improvements; that said mills were operated by water furnished by a dam constructed across the river in 1852, and that said dam remained on said premises until 1903 and backed the water up the river opposite the premises of appellant. The bill further alleges that in 1903 appellees constructedupon said premises another dam about 50 feet down the stream; that said dam was constructed at least 12 inches higher than the other dam, and caused the water in the river to be raised to a greater height than it had ever been by the old dam. The bill further alleges that the building of said new dam has greatly damaged the lands of appellant; that it has ponded and retained the water permanently on a large portion of his farm at least 12 inches higher than it had been for more than 20 years prior to the erection of said new dam; that it destroyed the efficiency of his tile drainage, killed a grove of trees, and injured the producing qualities of his land, thereby damaging appellant not less than $6,000, besides $2,000 for loss of crops, etc. The bill prays that appellees be decreed not to construct, maintain, or operate any dam on said premises except at the same place and of the same height as said dam constructed prior to August, 1903, and that they be restrained from raising the water on appellant's land to any greater height than it had been raised and maintained for 20 years prior to August, 1903; that appellees be required to remove their newly constructed dam from the river.

The answer of appellees admits the building of the old dam in 1852 and the new dam in 1903, but denies that the new dam was built any higher than the old one had been erected and maintained for 40 years, denies the water had been raised any higher on the lands of the appellant or that it backs up and injures his tile drainage and crops, avers that appellees have a right to erect a dam 7 feet above the bed of the river, and that they have a right to back the water on appellant's premises to the full extent that a dam erected and maintained (at the location of the new dam) 7 feet above the bed of the river would pond said lands of appellant, by virtue of said right having been conveyed to said appellees by the original owners of the premises of said appellant.

The cause was referred to the master to take proofs, and upon the coming in of his report the court entered a decree dismissing the bill for want of equity.

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

The material facts with reference to the construction of the dams are as follows: In July, 1850, A. M. Wylie bought of members of the Pottawattamie Indian Nation two sections of land on the Kankakee river, known as the Mesawkequa reservation. The 14 acres now owned by appellees and the land owned by appellant were a part of said reservation and owned by said Wylie in 1852. February 7, 1852, Wylie and his wife deeded to A. and S. Wilber the 14 acres now owned by appellees. On the same day, as a part of the same transaction, Wylie executed and delivered to the said Wilbers the following agreement: ‘Know all men by these presents, that I, Augustus M. Wylie, have sold and deeded to Alvin and Slocum Wilber certain lands at Show Bar Cross, on Kankakee river, for the purposes of building mills, machinery, etc., do agree, for purposes aforesaid, said Wilbers or assigns may build a dam across said stream not more than six feet in highest above the bed of the river, and that he, the said Augustus M. Wylie, his heirs or assigns, shall not charge, ask, demand or receive any pay for damages done to land, timber or property whatsoever by reason of watter raisin by said dam. In testimony whereof I have hereunto set my hand and seal this 7th day of February, 1852. Augustus M. Wylie. [Seal.] The deed and agreement were recorded. The Wilbers commenced the erection of a six-foot dam on the tract purchased by them and finished the same in 1853, measuring the height from bed rock in the bed of the river at the abutments of the dam. In 1855 the appellee E. R. Beardsley and his brother purchased the property now owned by appellees, with the dam completed thereon. He testifies that the bed of the river upon which the old dam was placed was at that time quite level, except at one point. The other appellees have since acquired their interests in the premises. The first dam was what was called a ‘crib dam.’ It was replaced in 1883 by a rafter dam on the same site, and we think the evidence shows that this second dam was of the same height as that erected by the Wilbers. Portions of this second dam were washed out at various times and replaced until 1903, when the dam in question was built about 50 feet below the old one. The present dam was built of wood upon a concrete base. These dams furnished the water power for the mills continuously, with a few slight interruptions, from 1853 to the trial of the case. Appellant purchased the farm in 1899, and moved upon it the same year. At that time about 120 acres of the farm were tillable land and lay in the bottoms along the river. About 70 acres were broken; a portion being marshy and including bayous and an island. This land was used principally for pasture. At the east end of the farm a tile was laid about the year 1888, which emptied into a bayou near the river. In 1903 appellant put in about 560 rods of tile in the west part of the farm, which emptied into the river about 100 rods above the new dam. According to the appellant's evidence, the outlet for this tile was based on the level of the river during the summer season as it existed prior to the construction of the new dam and was about 11 inches above said water level. It is clearly shown by the evidence that when the new dam was completed in October, 1903, the water rose 15 or 20 inches higher than it was before and that the increased depth has since been maintained; also, that it backed up on the appellant's farm, covered the outlets of his tile, killed a grove of oak trees by continuously standing on the land, covered up about 25 acres of land, flooded the cellar of his house, and otherwise damaged his farm.

Appellant contends that appellees have no right to pond or back the water on his land higher than it had been raised by the old dam for 20 years previous; that they have no right to build a dam at any place except on the site of the old one, or to so construct a dam at any place as to raise the water above it any higher than it was raised by the old dam. This position is based on the theory that whatever land the appellees were authorized to overflow by building the dam, if they failed for 20 years to exercise the right it was lost by nonuser. Where the right to overflow land by a dam is acquired by grant from the owner it is not lost by nonuser alone. Angell on Water Courses (7th Ed.) § 252. To defeat such a right based upon grant, there must also be an actual adverse possession for 20 years. There must be not only an absolute denial of the right, but an enjoyment inconsistent with its existence. Kuecken v. Voltz, 110 Ill. 264;Illinois Central Railroad Co. v. Moore, 160 Ill. 9, 43 N. E. 364;Chandler v. Jamaica Pond Aqueduct Corporation, 125 Mass. 544;Clinton Gas Light Co. v. Fuller, 170 Mass. 82, 48 N. E. 1024;State v. Suttle, 115 N. C. 784, 20 S. E. 725;Lindeman v. Lindsey, 69 Pa. 93, 8 Am. Rep. 219. It is not made clear by the evidence how much of appellant's land was overflowed by the new dam that had been free from overflow before its construction, or for how long a period consecutively it had been free from overflow before the new dam was built, or what was the nature of the user or character of the possession before that event. Neither is it made to appear what was the character of the land not affected by the old dam...

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4 cases
  • Seymour Water Co. v. Lebline, 24672.
    • United States
    • Indiana Supreme Court
    • May 15, 1924
    ...55 Kan. 90, 39 Pac. 1021;Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959;Lindeman v. Lindsey, 69 Pa. 93, 8 Am. Rep. 219;Haigh v. Lenfesty, 239 Ill. 227, 87 N. E. 962; note, 1 A. L. R. 884 et seq., and numerous authorities cited. [6][7] Of course it is possible for a complete discontinuance of a......
  • Winn v. Cleveland, C., C. & St. L. Ry. Co.
    • United States
    • Illinois Supreme Court
    • April 9, 1909
  • Seymour Water Co. v. Lebline
    • United States
    • Indiana Supreme Court
    • May 15, 1924
    ... ... 1021; ... Gassert v. Noyes (1896), 18 Mont. 216, 44 ... P. 959; Lindeman v. Lindsey (1871), 69 Pa ... 93, 8 Am. Rep. 219; Haigh v. Lenfesty ... (1909), 239 Ill. 227, 87 N.E. 962; Note 1 A.L.R. 884, et ... seq., and numerous authorities cited ...           Of ... ...
  • Thew v. Lower Colorado River Authority
    • United States
    • Texas Court of Appeals
    • June 24, 1953
    ... ... 564, Hemmis v. Consolidated Water Power & Paper Company, 173 Wis. 518, 181 N.W. 743, Forbes v. Commonwealth, 172 Mass. 289, 52 N.E. 511, Haighigh v. Lenfesty ... ...

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