Hargadine v. Sharkey
| Decision Date | 07 January 1956 |
| Docket Number | Gen. Nos. 10834 |
| Citation | 131 N.E.2d 134,8 Ill.App.2d 209 |
| Parties | Edgar C. HARGADINE and Zella M. Hargadine, Plaintiffs-Appellants, v. David H. SHARKEY, as County Superintendent of Highways of Stark County, Illinois, and The County of Stark, Illinois, Defendants-Appellees. Edgar C. HARGADINE and Zella M. Hargadine, Plaintiffs-Appellants, v. David H. SHARKEY, as County Superintendent of Highways of Stark County, Illinois, Defendant-Appellee. & 10884. |
| Court | United States Appellate Court of Illinois |
Robert H. White, Geneseo, for appellants.
Eugene H. Rennick, Jr., Toulon, for appellees.
On July 22, 1952, appellants, Edgar C. Hargadine and Zella M. Hargadine, husband and wife, filed their complaint in the Circuit Court of Stark County. Thereafter and on December 9, 1953, they filed their amended complaint which consisted of six counts, and on July 14, 1954, an amended count five was filed. The sufficiency of the amended complaint, as so amended, was challenged by a motion to dismiss, and upon a hearing the court sustained the motion to dismiss as to counts one and five and denied the motion to dismiss as to counts two, three, four, and six. The plaintiffs elected to stand by counts one and five of the amended complaint, as amended, and an appropriate final order was entered on December 6, 1954, in bar of the action set forth in those counts. The plaintiffs appealed, and that case appears in this court under General Number 10834. Apparently count six was further amended, and on June 16, 1955, the court sustained a motion of the sole defendant in that court, David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, to dismiss count six of the amended complaint, as so amended, and from an appropriate judgment in bar of the action set forth in that count the plaintiffs appealed, and that case appears in this court under General Number 10884. Both appeals are disposed of in this opinion.
Amended count one, as amended, alleged that the plaintiffs were the owners of certain described farm land; that State Aid Road No. 4, Stark County, Illinois, approximately sixty feet wide, passes diagonally through plaintiffs' land; that Spoon River runs is a southwesterly direction through a portion of plaintiffs' land and intersects State Aid Route No. 4 at approximately right angles near the center of a described quarter-section of land owned by the plaintiffs; that west of Spoon River the land of the plaintiffs is bottom land, and State Aid Road No. 4 runs through this bottom land for a distance of approximately 100 rods to a bluff and then slopes upward over the bluff; that prior to 1939 there were ditches on both sides of State Aid Road No. 4 running from the top of the bluff and along each side of the road to Spoon River, so that the water coming into the road at the top of the hill and on the side slope of the hill drained through the ditches to the river; that in the year 1939, certain improvement work was done at this location on State Aid Road No. 4 by widening the road and the slope over the hill was lessened; that in making these improvements, almost the entire right of way for the road was used, and the ditches on both sides of the road from a point near the bottom of the hill extending to the river were filled or destroyed--thus eliminating the channels by which the water falling on the road and the hill could be carried to the river; that as a result thereof, the water now falling on the road and draining into the road comes down the ditches on each side of the road to a point near the bottom of the hill and then, because of a lack of any further channel along either side of the road, flows out onto the farm land of plaintiffs on both sides of the road. This count averred that the County of Stark had no legal right to so divert the hill water and to cast it upon plaintiffs' land and alleged that as a result thereof plaintiffs suffered and will continue to suffer irreparable damage from the acts done by the defendants resulting from the diverting and flowing of water on the land of the plaintiffs.
The prayer of this count of the complaint is that the defendants, David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, and the County of Stark, Illinois, and its agents and representatives, 'be restrained, by injunction, from diverting the water flowing down the road from the top of the hill out onto the plaintiffs' land on both sides of said State Aid Road No. 4, and be ordered to construct adequate ditches on each side of State Aid Road No. 4, at the location herein referred to, to adequately and properly carry the water coming from the hill and road directly to Spoon River, and, in connection therewith, to take the proper legal action to secure additional right of way for said ditches.'
Count V of the amended complaint, as amended, in addition to alleging plaintiffs' ownership of the land described in count one and the location of Spoon River and State Aid Road No. 4 in relation thereto, then charges that Spoon River intersects State Aid Road No. 4 near the center of the described quarter-section of land which plaintiffs own; that from the point where Spoon River intersects this State Aid Road, Spoon River extends in a Northeasterly direction through the lands owned by the plaintiffs, and that on the West side of Spoon River from the Slackwater Bridge (which is a bridge located on State Aid Road No. 4 where it crosses Spoon River) northeasterly to a point in the west half of a described quarter section of land, there is a levee constructed of sufficient height and width to prevent floodwaters of Spoon River from overflowing the lands of the plaintiffs; that Indian Creek flows from the northwest in a southeasterly direction through the lands of the plaintiffs into Spoon River, and that entirely along the southwesterly side of Indian Creek, where this creek borders the lands of the plaintiffs, there exists a levee of sufficient height and width to prevent the floodwaters of Indian Creek from flowing onto the lands of the plaintiffs, which levee extends from the bluffs to the junction of Indian Creek and Spoon River.
This count then goes on to allege that during the month of April, 1950, the County of Stark, through its agents and representatives, permitted a large number of lots and a large quantity of debris to accumulate and become jammed in Spoon River at Slackwater Bridge; that these logs and this debris became lodged in the piers and abutments of Slackwater Bridge to form a dam in Spoon River, and that the defendant, County of Stark, knew of the existence of these logs and this debris and of the approximate consequences that might result from their accumulation; that on or about April 25, 1950, the waters in Indian Creek and Spoon River rose to flood stage as a result of rains to the north and this water was unable to pass under Slackwater Bridge in a satisfactory manner because of the logs and debris which had accumulated, and this water was thus impounded and caused to rise to higher level because of the dam so created; that as a direct and proximate result of the dam, the water in Spoon River overflowed its west bank, where there was no levee, and flowed in a southwesterly direction to Indian Creek, and this water flowed with such force and rapidity that it caused the levee on the southwest side of Indian Creek to 'blow out' in three places, digging holes in the lands of the plaintiffs ranging in depth to five feet and comprising an area of approximately twenty acres; that as a direct and proximate result of these washouts this land of the plaintiffs is not presently tillable and must be completely filled in with good, black, fertile soil if it is to be restored to its former degree of fertility; that as a further direct and proximate result of the act of the defendant, County of Stark, plaintiffs suffered damage in the year 1950 by the loss of thirty acres of crops; that in each of the years 1951 and 1952 the plaintiffs suffered the loss of crops on twenty acres of land and suffered the loss of two hundred rods of fence which was torn out by the water coming through the 'blow outs' in the Indian Creek levee, and that said damage would not have occurred had it not been for the logs and debris which had accumulated at Slackwater Bridge. This count concluded by charging that the County of Stark, in permitting said logs and debris to so accumulate, has unlawfully and without just compensation acquired and appropriated to its own use that part of the plaintiffs' lands and property damaged as aforesaid, contrary to Article 2, Section 13, of the Constitution of the State of Illinois, S.H.A., and prayed for judgment against the County of Stark in the sum of Twenty Thousand Dollars. Attached to and made a part of the amended complaint, as amended, is a plat showing the lands owned by the plaintiffs, the location of Spoon River, Indian Creek, Slackwater Bridge, and State Aid Road No. 4, all referred to in said amended complaint as amended.
Counsel for the respective parties state that if the defendants are amenable to be sued for the alleged acts charged against them in this amended complaint as amended, then the judgment appealed from should be reversed. Counsel agree that only one question is presented by this record for our determination and that is whether a county and its superintendent of highways may be sued for the cause of action alleged in count one of the complaint and whether a county may be sued for the cause of action alleged in count five of the complaint. This question was properly raised in the trial court by the limited and special appearance of the defendants and their motion to dismiss.
Counsel for appellees insist that counts one and five of the complaint are based upon alleged tortious acts committed by defendants and that where the doctrine of respondeat superior applies counties are immune from...
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