Appeal from appellate court, fourth district; BURROUGHS, Judge.A. W. Metcalfe, for appellants.
This was a bill for injunction by appellee against appellants, filed in the circuit court of Madison county. The bill alleges that ‘complainant is the owner in feesimple of the east half of the north-west quarter, and the west half of the north-east quarter of section thirty, (30,) in township three (3) north, range five (5) west, of the third principal meridian, situate in the county of Madison, and state of Illinois. That the said land, being one-half mile in width from east to west, is bounded on the south by and lies north of a public road running east and west through the center of said section. That Christian Hotz, Christian Koch, and Albert Luehm are the commissioners of highways of said township, the said township being known as Helvetia township. That the said land, adjoining and north of said road, is low, the eastern half of said tract being the lowest. That the eastern half, north of and adjoining said road, though low and wet, is fair, tillable land, and has been in cultivation for a great many years, and is now in cultivation; and in its present condition is worth fifty-five dollars per acre. That the surface water from the west half of said land and other lands to he north and west of the same drains into a ditch crossing said public road southward from said west half of said tract, and flows naturally through a hollow or branch in a general south-easterly direction until it unites with another branch at some distance south of said road, which said other branch flows from a general north-easterly direction; and the surface water from said eastern half of your orator's said land drains naturally towards the south or south-east, and is carried off by said branch flowing from the north-east above mentioned. That between said two natural drains or branches, a short distance to the east of said western branch, carrying off the surface water of said west half of said land, there is a hill or elevation which said public road crosses, and which divides the east and west halves of said land; and upon said hill or elevation, north of said road, is the residence and other buildings belonging to your orator. That the said commissioners of highways threaten and are about to dig and construct a ditch along the north side of said road, south of your orator's said land, from said western branch or drain eastward through said hill or elevation to said eastern branch, thus changing the natural flow and force of said surface water from the west half of said land and other lands to the north and west, and forcing the same to run directly east along the south line of your orator's land to its eastern limit, and until it reaches said eastern branch flowing from the north-east as aforesaid. Your orator further represents that in case the said commissioners carry out their said threat and purpose, and said ditch is constructed, and said water forced through it as contemplated, in addition to the fact that your orator will be, in effect, cut off from said public road by said ditch, large quantities of water will be forced upon and back onto the said east half of your orator's said land. That the said land is quite low, and, in fact, as your orator verily believes, almost or quite as low as the road-bed and land south of it; and said east branch, into which it is intended to force said water, has so little fall that in times of heavy rain it is incapable of carrying off such water as now naturally drains into it, and overflows frequently. That said east half is quite low and wet, and is drained to some extent by artificial ditches dug by your orator; and if said commissioners are permitted to carry their threats and intentions into execution, the water so unnaturally forced through said ditch will overflow and render a large portion of said land-to-wit, about twenty acres, as your orator verily believes-totally unfit for cultivation, and useless to your orator. That at present, and naturally, the said water coming from the west half of your orator's said land, and other lands to the north and west thereof, flows south-easterly across said road, as before stated, and the digging of said proposed ditch, and turning said water, as contemplated, is not a work of public necessity, nor will it in any way, in your orator's judgment, improve said road-way; but, as your orator is informed and believes, the said commissioners are about to do said work simply at the instance of the owner of the land lying south of said road, through which said water now naturally runs, and for the sole purpose of turning said water off his said land. That the said commissioners have declared their intention, and instructed their agent to proceed at once with said work, and construct said ditch as aforesaid, and your orator has good reason to fear, and does fear, that said commissioners will carry their said intention and threat into execution unless they are restrained by the injunction of this honorable court.’ The prayer is for an injunction,restraining said commissioners ‘from proceeding in any way with the construction of said ditch.’
The defendants filed their joint and several answer, admitting the ownership of said land in complainant, and that they are highway commissioners for said township. They admit the location of said road as alleged; they deny that said land is low, but admit that the...
