Indian Refining Co. v. Ambraw River Drainage Dist.

• Decision Date: 07 December 1932
• Docket Number: No. 320-D.,320-D.
• Citation: 1 F. Supp. 937
• Parties: INDIAN REFINING CO. v. AMBRAW RIVER DRAINAGE DIST. et al.
• Court: U.S. District Court — Eastern District of Illinois

1 F. Supp. 937

INDIAN REFINING CO. v. AMBRAW RIVER DRAINAGE DIST. et al.

No. 320-D.

District Court, E. D. Illinois.

December 7, 1932.

Oscar John Dorwin, of Lawrenceville, Ill., and Walter T. Gunn, of Danville, Ill., for plaintiff.

G. W. Lackey, of Lawrenceville, Ill., for defendants.

LINDLEY, District Judge.

This is an action brought by plaintiff, an oil refining company, against a drainage district organized under the statute of the state of Illinois and certain executive officers, to restrain them from altering the course and lowering the level of the Embarrass river in Lawrence county, Ill.

Plaintiff owns certain property known as pump property directly abutting upon the west side of the river, and in addition thereto, just to the south of the pump property, but a short way from the river, certain refinery property of great value. Running from the refinery eastward to the river are rights of way over land abutting on the river and between it and the refinery owned by plaintiff, through which it sends its waste water through drains into the present channel. Plaintiff uses an enormous amount of water in its operation, and approximately all of it is taken from the river at the pumphouse, and, after passing through the refinery, is returned to the drains and thence to the river as waste water.

Defendants propose to build a dredge ditch from a point shortly south of plaintiff's pumphouse, straightening the course of the river and diverting it to the left of the present channel. Plaintiff claims that the resulting lowering of the level of the water at its pumphouse will deprive it of its natural riparian rights and also such rights as it may have gained by prescription and that the effect upon the old channel will seriously damage it in its operations and seeks to enjoin the prosecution of the proposed construction work. The drainage district, a municipal corporation, has at no time taken cognizance of plaintiff's asserted rights.

The facts and the reasons for my decision fully appear in special findings of fact and conclusions of law entered contemporaneously herewith. In view of the same, it may be that no further discussion is necessary. However, a brief statement of my position may be of aid to counsel and to the Court of Appeals, if there should be an appeal.

Included within riparian rights of an abutting owner is the privilege to make use of the waters of the stream for "any necessary and proper purpose incident to the land itself and essential to its enjoyment" which does not materially interfere with the rights of other similar owners (27 R. C. L. XXXX-XXXX-XXXX); to have the stream flow as it is wont by nature, without material diminution or alteration, to flow "in the usual quantity at its natural place and height," and to flow from his land in its accustomed place "and at the usual level" (Gould, Waters, 374). When others cause the stream to run from his land "in an unusual manner, and actual injury ensues," the owner has a right of action. Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355. See, also, Sturr v. Beck, 133 U. S. 541, 10 S. Ct. 350, 33 L. Ed. 761; Atchison v. Peterson, 20 Wall. 507, 22 L. Ed. 414; Pinkstaff v. Steffy, 216 Ill. 406, 75 N. E. 163; Deterding v. Central Illinois Pub. Service Co., 313 Ill. 562, 145 N. E. 185. In Druley v. Adam, 102 Ill. 177, the court said: "The law has been long settled, in this State, that there can be no property merely in the water of a running stream. The owner of land over which a stream of water flows, has, as incident to his ownership of the land, a property right in the flow of the water at that place for all the beneficial uses that may result from it, whether for motive power in propelling machinery or in imparting fertility to the adjacent soil, etc., — in other words, he has a usufruct in the water while it passes; but all other riparian proprietors have precisely the same rights in regard to it, and, apart from the right of consumption for supplying natural wants, neither can, to the injury of the other, abstract the water, or divert or arrest its flow."

So far as the pumphouse land which abuts upon the west bank of the river is concerned, plaintiff is clearly a riparian owner, and as such owns the land to the center of the thread of the stream. The water and soil under it to such extent are those of the riparian owner (Middleton v. Pritchard, 3 Scam. Ill. 510, 38 Am. Dec. 112), even though the stream be in fact navigable. The effect of navigability is merely to give to the sovereign or the public an easement to pass over or be transported upon the water. Washington Ice Co. v. Shortall, 101 Ill. 46; 40 Am. Rep. 196; Middleton v. Pritchard, 3 Scam. (Ill.) 510, 38 Am. Dec. 112; Chicago v. Laflin, 49 Ill. 172; People v. Economy Power Co., 241 Ill. 290, 89 N. E. 760; Albany R. Bridge Co. v. People ex rel. Matthews, 197 Ill. 199, 64 N. E. 350.

Lessees and owners of rights of way or easements and grantees of riparian rights are also riparian owners, and, to the extent of their title, endowed with all the rights thereof. Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; Reed v. Spicer, 27 Cal. 57; Bristol Hydraulic Co. v. Boyer, 67 Ind. 236; Gould v. Stafford, 91 Cal. 146, 27 P. 543; 27 R. C. L. 1077. Furthermore, riparian rights may be acquired by prescription; that is, by use adverse to others for over twenty years. Ballard v. Struckman, 123 Ill. 636, 14 N. E. 682; 27 R. C. L. 1085; 1 Whitehead on Illinois Real Property, 811.

Consequently, as to the pumphouse lands owned by it, plaintiff is entitled to all the rights of a riparian owner. In addition, it has under the doctrine of prescription, in view of its more than twenty years' use, a similar right to use the water and have it kept at the normal level. Then, too, it has, under its grants of rights of way to the river and use of the same for carrying waste water for many years, the rights of a riparian owner as to its drain lines and retaining walls. These rights include all privileges embraced within the general doctrine governing riparian owners as hereinbefore set forth.

The findings of fact indicate to what extent those rights will be damaged by the proposed alteration in the river. The pumps will be greatly lessened in efficiency and their practical use endangered. To replace the water supply enormous expense will be incurred. To rebuild the pumphouse and the pumps would necessitate a very substantial monetary outlay. To divert the channel would clog up the outlets for the enormous quantities of hot waste water emptied by the drains, and the peculiar physical conditions would bring about a reversal of flow so that such hot water and the sanitary sewage from the city's drains would be caused to flow toward the pumps and seriously handicap and perhaps effectively prevent the present efficient method of furnishing water to the refinery of plaintiff. Other results are indicated by the formal findings. All of them produce substantial damage to and the taking of substantial property rights of plaintiff as a riparian owner.

Section 13 of article 2 of the Constitution of Illinois is as follows: "Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law."

The proceedings for making the proposed changes did not take into account plaintiff's rights. It had no day in court, and may now, therefore, have the proposed action enjoined because of a failure to recognize its rights under the constitutional provision quoted.

In the case of People v. City of St. Louis, 5 Gilman, 351, 48 Am. Dec. 339, the Illinois Supreme Court held that the state might change the current of the Mississippi river, or even stop up some of its confessedly navigable channels, taking care to leave a free passage to those who have the right to navigate it, and if, in doing so, private property should be damaged, compensation would have to be first made to the owner. This case is quoted approvingly in City of Chicago v. Laflin, 49 Ill. 172, in which the court referred to the fact that appellees were the owners of wharves on the Chicago river which they had used for over a quarter of a century, and, on page 177 of the opinion the court said:

"And even if the State has delegated its rights to the city to change the channel of this stream, and we have been referred to no law which grants the power, it could exercise no higher or greater power than the State; and we have seen, that if the State exercises such power and it injures the rights of individuals, compensation must first be made.

"It would be monstrous that the city should at pleasure make changes in this stream so as to render buildings on the wharfs an obstruction, and then require their removal without compensation. Such power would be more vast and absolute than can be exercised by the State itself. The city government is created, and has its powers delegated for the better protection of individual rights, and not that they may be disregarded or destroyed."

The last paragraph taken from the opinion in the Laflin Case, 49 Ill. 172, is quoted approvingly in People v. Economy Light & Power Co., 241 Ill. 290, on page 327, 89 N. E. 760.

Both cases had to do with navigable streams.

Nor can the action of defendants be justified under the police power, which is the power to regulate, in order to promote the order, safety, health, morals, and general welfare of society. In Sanitary District v. C. & A. R. Co., 267 Ill. 252, 108 N. E. 312, 314, the court said:

"`It is a regulation, and not a taking; an exercise of police power, and not of eminent domain. But the moment the Legislature passes beyond mere regulation, and attempts to deprive the individual of his property, or of some substantial interest therein, under the pretense of regulation, then the act becomes one of eminent domain.' 1 Lewis on Eminent Domain (3d Ed.) § 6. ...