Heffner v. Cass & Morgan Counties

• Decision Date: 18 December 1901
• Citation: 62 N.E. 201,193 Ill. 439
• Parties: HEFFNER et al. v. CASS AND MORGAN COUNTIES.
• Court: Illinois Supreme Court

193 Ill. 439

62 N.E. 201

HEFFNER et al.

v.CASS AND MORGAN COUNTIES.

Supreme Court of Illinois.

Dec. 18, 1901.

Error to circuit court, Morgan county; O. P. Thompson, Judge.

Trespass by Cass and Morgan counties against Marius A. Heffner and others. From a judgment in favor of the plaintiffs, the defendants bring error. Reversed.

Cartwright, Boggs, and Hand, JJ., dissenting.

Worthington & Reeve, for plaintiffs in error.

Chas. A. Barnes and A. A. Leeper, for defendants in error.

This action of trespass was commenced in the circuit court of Morgan county on May 1, 1900, by the defendants in error, Cass and Morgan counties, against the plaintiffs in error, Marius A. Heffner, Thomas Naylor, and Louis C. Hackman, to recover damages for the removal of the bridge hereinafter described, constructed over Mud creek, and used and occupied by defendants in error at a point where the said creek is crossed by a public road running from Arenzville, in Cass county, to Meredosia, in Morgan county, at or near the county line between said counties. The declaration consists of two counts. The first count charges that the defendants in error, plaintiffs below, were the joint owners of an iron and steel bridge over Mud creek, on what is known as the Arenzville and Meredosia public highway, near the county line between the county of Cass and the county of Morgan, the same having been recognized for a number of years as a joint bridge, built jointly by said counties; that it was the duty of said counties jointly to keep said bridge in repair and maintain the same; that defendants, on April 1, 1900, entered that part of said road over which said bridge was erected, and upon which plaintiffs had an easement of possession, for the purpose of erecting and maintaining the said bridge, and where plaintiffs had for a long time maintained said bridge across said creek at the crossing of said creek by the highway, for the use of the public traveling the same; that defendants then and there broke said bridge to pieces and removed the same from its place at said crossing, and rendered the same useless; that then and there defendants dug a drainage ditch or excavation across said road at the place aforesaid, jointly owned by the plaintiffs, by deepening Mud creek and widening the same, said ditch being some 45 feet wide and 15 feet deep, and by moving large quantities of earth therefrom; that it was thereby made necessary for plaintiffs, in order to accommodate the public passing along said highway, to construct another bridge, with a span some 60 feet in length; that the expense of building said bridge of sufficient length and strength to accommodate the public passing along the highway, and to enable them to cross said ditch or drain or excavation, amounted to the sum of $1,200; that said ditch was dug, and the bridge removed, without the license of the plaintiffs, and against their will, to the damage of the plaintiffs of $5,000. The second count charges that the bridge was located in the county of Morgan, and near to the line between the two counties of Morgan and Cass, and in township 16, range 12 west; that the bridge had been built jointly by the two counties, and maintained for the sue of the public traveling said highway, and was an iron and steel bridge of the value of $400, being used as a public bridge for the use of the public of both counties in passing over said road; that the defendants, on November 1, 1899, and on divers other days, entered the close belonging to the plaintiffs as an easement for said uses and purposes, the place being situated in Morgan county, and tore up, excavated, and removed the earth from a great part of the same, by excavating a drainage ditch, water way, slough way, or drainage canal across said roadway where plaintiffs had the appurtenances aforesaid, and where they owned and maintained said bridge for the use of the public, excavating the same to the width of 45 feet and depth of 15 feet, and made other excavations, thereby necessitating an expenditure by the plaintiffs of $1,200 to build, construct, and maintain another bridge. To this declaration the defendants filed a plea of not guilty, and three special pleas. The first special plea avers that, before the committing of the alleged grievance, there had been formed a corporation known as the ‘Mud Creek Drainage District’; that said district was formed under and according to the provisions of the statute in such cases made and provided; that the defendants were then, and before that, duly appointed and qualified drainage commissioners of the said Mud creek drainage district, and were then and there acting as such commissioners and in the drainage district; that said district included territory on both sides of Mud creek, which was then and there a natural water course; that said bridge was situated across said creek, within said drainage district, on the line of the main ditch of the district as organized by the county court of Cass county; that, in order to make said drainage district effective, and to accomplish the purpose for which it was organized, it was necessary to deepen and widen Mud creek at the place where said bridge was situated; that, in order to make the creek of sufficient depth and width to carry of water and drain the district, it was necessary to deepen and widen the creek, and that said bridge would become useless and of no value as a bridge at the place where it was then located; that, according to the provisions of the statute in such case made and provided, it became the duty of the commissioners of said drainage district to remove said bridge, so that the same would not obstruct the work of constructing said drain in the district aforesaid; that defendants, as commissioners of said district, removed the bridge from its then location, so as to clear the obstruction to the work of constructing such drain within said district, doing no more damage to the bridge than was necessary to remove it from its location and out of the way of constructing the ditch or drain, as they lawfully might; that the trespasses complained of in the declaration are the same trespasses above mentioned, and no other. The second special plea is substantially the same as the first, with the additional averment that said bridge is situated in road district No. 4, in Morgan county, and that an assessment of damages to and benefits against said road district was made in the county court of Cass county under the statute in such case made and provided, and that the balance of benefits so assessed against said road district is the sum of $52.75. The third special plea is, in substance, the same as the second, with the additional averment that under the statute the defendants, as drainage commissioners, had lawful authority to remove the bridge. The plaintiffs below filed demurrers to the three special pleas, which demurrers the court below sustained. The cause went to trial upon the issue formed by the plea of not guilty. The defendants below sought to defend upon the ground that they were acting, not as individuals, but as commissioners of the Mud creek drainage district, legally and duly appointed as such, and, therefore, were acting under an order of the court, and were not liable personally for what was done in obedience to that order. The trial court admitted in evidence the transcript of the record of the Cass county court organizing the district. This transcript shows the filing of a petition by more than one-half of the adult landowners of the proposed district; that the petitioners were owners of more than one-third of the land; that notices were given according to the provisions of the statute and for the requisite length of time. It also shows the appointment of a jury, their oath of office, and the return of their assessment roll and its confirmation by the court. This transcript was admitted by the trial court for the purpose of showing that the bridge was within the drainage district; but it also shows all the steps taken for the organization of the district. The court, upon the trial of the case, gave instructions for the plaintiffs, holding that, if they removed the bridge and excavated the ditch across the public road as commissioners of said drainage district, they were just as responsible, in law, for their acts, as though they had been acting individually. The jury returned a verdict of guilty, and assessed the damages at $700, upon which verdict, after overruling a motion for a new trial, the court rendered judgment. This writ of error was sued out by the defendants below to bring the record before this court for review.

CARTER, J. (after stating the facts).

The only errors alleged necessary to be considered are those assigned on the rulings of the court below in sustaining the demurrer of the plaintiffs below to the defendants' special pleas, and in giving to the jury certain instructions on behalf of the plaintiffs, and in refusing others asked by the defendants. It is not disputed that plaintiffs in error removed the bridge and widened and deepened the creek where the bridge crossed the same, and thereby rendered said bridge useless as a bridge over said creek; but, if they did nothing more in the premises than what they were authorized to do by law as the corporate authorities of the drainage district, they were not liable and the rulings of the court were erroneous.

We have been favored with able briefs and arguments by counsel, which we have carefully considered.

The principal question for us to consider is whether section 55, and especially the third proviso to it, of the drainage and levee act, approved and in force May 29, 1879, as amended in 1885, is constitutional or not. Said amended section 55 provides, in effect, that, when any ditch, drain, or levee will benefit any public or corporate road or railroad, the commissioners shall apportion to the county, state, or free turnpike road, to the township if a...