Indian Creek Drainage Dist. No. 2. v. Chicago, B.&Q.R. Co.

• Decision Date: 21 December 1920
• Docket Number: No. 13294.,13294.
• Citation: 129 N.E. 105,295 Ill. 339
• Court: Illinois Supreme Court
• Parties: INDIAN CREEK DRAINAGE DIST. NO. 2. v. CHICAGO, B. & Q. R. CO.

295 Ill. 339

129 N.E. 105

INDIAN CREEK DRAINAGE DIST. NO. 2.

v.CHICAGO, B. & Q. R. CO.

No. 13294.

Supreme Court of Illinois.

Dec. 21, 1920.

Proceeding by Indian Creek Drainage District No. 2 against the Chicago, Burlington & Quincy Railroad Company to assess benefits and damages. Judgment of confirmation, after trial by jury resulting in a verdict of no benefits and no damages, and the Railroad Company appeals.

Reversed and remanded.Appeal from Morgan County Court; Paul Samuel, Judge.

William H. Dieterich, of Beardstown, and Wilson & Butler, of Jacksonville (J. A. Connell, of Chicago, of counsel), for appellant.

Worthington, Reeve & Green, of Jacksonville, for appellee.

PER CURIAM.

This is an appeal by the Chicago, Burlington & Quincy Railroad Company from a judgment of confirmation entered by the county court of Morgan county upon the verdict of a jury called to assess benefits and damages to said railroad in a proceeding to improve the drainage in Indian Creek drainage district No. 2. Said district was organized under the Levee Act (Hurd's Rev. St. 1919, c. 42) by an order of the county court of said county, and thereafter an assessment roll was filed, as provided in said act, on September 20, 1919, and an order entered for a venire for a jury to assess benefits and damages. The district claimed $15,000 benefits, while the railroad company denied any benefits, and claimed damages on account of the proposed improvement in the sum of $265,747. The jury found no benefits and no damages as to the property of the railroad company, and judgment was entered on that verdict. This appeal followed.

The drainage district by these proceedings plans to construct a main ditch across Indian Creek valley in portions of Morgan and Cass counties, which at this point was to be 52 feet wide at the top and 26 feet at the bottom. The depth of the excavation of the proposed artificial ditch from the bend in the creek about 2,000 feet east of the trestle to the railroad was to be about 13 1/2 feet. Indian creek in its ordinary condition has well-defined banks and a bed. At and near the point where his main ditch was to be constructed the creek was about 25 feet wide at the surface and a little narrower at the bottom; the normal depth of the water being about 3 feet. Through this part of its valley it ran, with many curves, in a general northwesterly direction until it passed to the north out of Morgan county into Cass county near the village of Arenzville. The Chicago, Burlington & Quincy Railroad Company for years has owned and operated its line of road through and across a part of this valley. In the northerly part of Morgan county the railroad crosses Indian creek near a bend in the creek, and then runs in a northerly direction on the east side of Indian creek, and passes through Arenzville, which lies in Cass county at the north edge of the valley. The railroad crosses the valley on an embankment about 10 feet high. Just south of Arenzville the railroad company left an opening in its embankment and constructed a wooden trestle, on which its tracks are located. This trestle, the evidence shows, was built to take care of the overflow waters from Indian creek. About 1,700 feet southerly from the trestle the railroad crosses Indian creek proper on a steel bridge. Indian creek runs about west under this steel bridge, then curves so that it flows about north, and passes through the west edge of Arenzville. From the difficulties of construction in that locality the railroad company has only a single track across this valley, except for a switch track that extends for a short distance south from Arenzville and across the proposed ditch. The width of Indian Creek valley in this locality varies, and counsel in their briefs do not agree as to its average width. The evidence tends to show that at some points it is from bluff to bluff 1,400 feet wide, and at other points considerably less; it being claimed by counsel for appellee that the evidence shows it is not over 200 or 300 feet wide at its narrowest point in that portion of the valley where the proposed main ditch is to be excavated. The approximate conditions and localities of the bed of Indian creek proper, the railroad, and the proposed main channel of the new ditch, with other features and surroundings in that locality, can be better understood by reading what has been said above in connection with the following map; the dotted lines indicating the proposed channel:

Image 1 (5.28" X 3.37") Available for Offline Print

The evidence tends to show that in times of high water the banks of Indian creek are overflowed and this water spreads over the lands east of the right of way until it passes out under the trestle into the natural bed of the stream near Arenzville. The evidence also tends to show that the plans of the district are that after the construction of the proposed channel the old bed of Indian creek will not be needed to take care of the ordinary flow of water, but that such ordinary flow will pass westerly through this proposed channel and under the railroad at the location of the present wooden trestle just south of Arenzville, and that there will be no further use for the steel bridge of the railroad company across the present natural bed of Indian creek. The evidence tends to show that the district proposes by its plans to carry, not only the ordinary flow of water under the proposed new bridge to be constructed at the location of said wooden trestle, but the flood waters as well, although the evidence tends to show, also, that after the proposed main channel is constructed it will not be of sufficient capacity to take care at all times of the flood waters in addition to the ordinary flow of water, and that at times of high floods the entire low lands of the valley will be covered from bluff to bluff, and that, as to taking care of the flood waters, the only effect of the construction of the drainage ditch will be to cause them to flow off more quickly and more directly from the submerged lands of the valley than they have done in times past under the steel bridge and the wooden trestle.

One of the first objections raised by counsel for appellant is that the trial court erred in not transferring the case from the county court of Morgan county, on their motion, to the county court of Cass county, under the provisions of an act which was passed by the Legislature in 1919 and was returned by the Governor to the secretary of state without his approval before the adjournment (June 30, 1919) of the Legislature which enacted the law. Laws of 1919, p. 442. The trail court refused to allow the motion to transfer the cause to Cass county under the provisions of this act, on the ground that the act was not in force until July 1, 1920. As this cause must be reversed for other reasons, we deem it unnecessary to pass on the question as to when the act went into force, as the act, in any event, will be in force when the case is next tried.

Counsel for appellant next argue that the court erred in the selection of the jury to try the case; that section 17a of the Levee Drainage Act (Hurd's Stat. 1917, p. 1092) provides that the jury to assess the benefits and damages under the act shall be impaneled ‘in accordance with the provisions of section 6 of an act entitled ‘An act to provide for the exercise of the right of eminent domain’'; that section 6 of the Eminent Domain Act does not provide in any way for filling the panel of 12 if any of the 12 shall fail to qualify (Hurd's Stat. 1917, p. 1406); that the method for filling such vacancies is provided in section 7 of the Eminent Domain Act, and that the trial court, after the exhaustion of the original panel as provided for in section 6, without legal justification under section 17a, filled the venire by selecting individual freeholders as provided for in section 7, and compelled the railroad company, after the exhaustion of all of its challenges, to accept a jury of whom some were selected under section 7. Counsel in no way suggest what provisions of any act should be followed to fill the venire provided for in section 6. This court has held that the original provisions of the Levee Drainage Act passed in 1879, which authorized the court to impanel the jury in a certain way, were unconstitutional. Wabash Railroad Co. v. Coon Run Drainage District, 194 Ill. 310, 62 N. E. 679. This court, however, later held that the act was not void as a whole; that the same could be held complete and enforceable, if read in connection with the Eminent Domain Act. Smith v. Claussen Park Drainage District, 229 Ill. 155, 82 N. E. 278. Under the reasoning of this last case it seems clear that the trial court did not err in construing as it did section 17a of the Levee Drainage Act with the entire Eminent Domain Act.

[2] Counsel for appellant next insist that the proof offered by appellee to show that it had tried, but failed, to agree with appellant, was insufficient to comply with the provisions of section 2 of the Eminent Domain Act. The evidence shows the chief engineer of the drainage district negotiated, off and on, for several months, to see if he could not get an agreement and a contract with the authorities of the railroad company to settle as to the benefits and damages for the construction of the so-called main drainage channel. While he testified that he did not offer any sum of money for the damages to the railroad, and that he was not authorized to offer any definite sum of money, it appears from his testimony that during these negotiations he was told that, because the railroad was under the control of the federal government, the railroad management had no authority to make such a contract; that later he wrote a letter to the authorities in charge of the railroad work, and told them that if he could not get some agreement with them the district would have to go on and condemn; that this letter was written several months...