Johnston v. City of Galva

Decision Date24 April 1925
Docket NumberNo. 16090.,16090.
Citation316 Ill. 598,147 N.E. 453
PartiesJOHNSTON v. CITY OF GALVA.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, Second District, on Appeal from Circuit Court, Henry County; Charles J. Searle, Judge.

Action by William Johnston against the City of Galva. Judgment for plaintiff was affirmed by the Appellate Court (232 Ill. App. 632), and defendant brings error.

Reversed and remanded.

Clark Aby, of Galva, and Hal M. Stone, of Bloomington, for plaintiff in error.

Sturtz & Ewan, of Kewanee, for defendant in error.

DE YOUNG, J.

William Johnston instituted suit in the circuit court of Henry county against the city of Galva to recover damages caused by the pollution of a natural water course which ran across his farm. A jury trial resulted in a verdict for the plaintiff for $4,000. The court required a remittitur of $1,500 and judgment was rendered for $2,500. Upon appeal to the Appellate Court for the Second District, the judgment of the circuit court was affirmed. The record is here by writ of certiorari granted upon the petition of the city.

For many years William Johnston owned 112 acres of farm land, of which the north 32 acres were situated within the limits and upon the southern boundary of the city of Galva. The remaining 80 acres constituted a rectangular tract, one-quarter of a mile in width from east to west, adjoining the north 32 acres and extending south for one-half of a mile. Johnston and his family resided on the north 32 acres. The south 55 acres of the farm consisted of pasture land, on which his lived stock grazed. Across this pasture, from a point on the east line of the farm about one-eighth of a mile north of its southern boundary, a creek ran in a northwesterly direction. About the year 1912 the city of Galva, a municipal corporation with a population of approximately 3,500, constructed a sewer system. A part of this system conveyed the sewage from the business houses and dwellings of about 500 people in the south and east portions of the city to a settling tank and filtering beds located south of the corporate limits. After subjection to whatever purification process the tank and beds afforded, the sewage passed through an open ditch, then through certain tile drains and a concrete abutment, and finally into the creek at the east line of Johnston's farm. Water, which was collected from an area of approximately 1,100 acres to the northeast, east, and southeast of Johnston's land, flowed through the creek prior to the construction of the sewer system. The extent of that flow was disputed.

On behalf of Johnston, the defendant in error, it appeared that it was practically continuous throughout the year, while the city of Galva, the plaintiff in error, offered testimony that the creek was often dry. The defendant in error did not, however, rely upon the creek to supply water for his live stock, because he obtained water for that purpose from a well near his residence. The evidence concerning the quantity and character of the sewage which was emptied into the creek was also in conflict. From the testimony offered by the defendant in error it appeared that not all of the filtering beds were utilized, and that sewage left the disposal tank after partial purification; that at times it became so thick that it would hardly flow; that sludge was deposited on the bottom of the creek, though decreasing in quantity as the creek, pursued its course westward; that the sewage was of a dirty milky color and had an odor which was more offensive in warm, dry weather than it was after freshets occurred or when it was cold, and that the odor was noticeable for a considerable distance from the stream. Witnesses who had made a study of sanitation and disease-producing conditions and had inspected the creek testified that germs causing typhoid and scarlet fever and diphtheria were carried in the sewage, and that these germs might infect the milk if the cows were permitted to wade in the creek. Certain witnesses testified that there was no odor from the creek, while others stated that there was an odor which was perceptible for only a short distance. Witnesses for the plaintiff in error admitted that the creek was polluted to some extent and that plans for a new sewage treatment plant were under consideration by the city.

The defendant in error claimed damages for the five-year period beginning in October, 1917. During that time he owned approximately 12 cattle, 15 horses, and 100 hogs, and he milked 5 to 7 cows. His claim included, among others, the following items: (1) The cost of hay and grain fed to his milch cows from May to October of each year while they were confined to the barn lot to prevent their coming into contact with the sewage instead of grazing in the pasture, as they did before the sewer emptied into the creek, approximately $450 annually; (2) the loss of milk which resulted from keeping the cows out of the pasture, 30 to 35 quarts a day, at 10 cents per quart, the market price, or $450 each year; (3) the cost of labor, $125, and the value of his own time, $375, each year for driving the horses to and from water because they refused to drink out of the creek, aggregating $500 annually; and (4) the value of three horses which died of lockjaw in the year 1919, $750. Evidence in support of these items was admitted.

The plaintiff in error insists that it was the duty of the defendant in error to mitigate the damages, if any, by building a fence on both sides of the creek, and that in any event the cost of such a fence would be the full measure of his damages. It appeared that it would cost $160 to build the fence and that its maintenance would require the expenditure of $10 annually. Prior to the construction of the sewer system by the city and the deposit of its sewage in the creek, there was no necessity for such a fence. The defendant in error had enjoyed the unobstructed use of his pasture land and the flow of water in the creek in its natural state, undefiled by sewage. The construction of the sewer system by the plaintiff in error did not divest him of these rights. He could not be deprived of them except by due process of law. Tetherington v. Donk Bros. Coal Co., 232 Ill. 522, 83 N. E. 1048; 20 R. C. L. 402. This is true even though a system of sewage disposal is an...

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35 cases
  • Hoggard v. Richmond
    • United States
    • Virginia Supreme Court
    • January 9, 1939
    ...and that the city was liable to plaintiff, who was injured in diving off the board into shallow water. See Johnston City of Galva, 316 Ill. 598, 147 N.E. 453, 38 A.L.R. 1384, and Miller City of Woodburn, 134 Ore. 536, 294 P. 349. Sometimes recovery under the nuisance doctrine is restricted ......
  • May Department Stores Co. v. Bell
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 12, 1932
    ...Union Tel. Co. v. Ivy, 177 F. 63 (C. C. A. 8); Macaw v. Oregon Short Line R. Co., 49 Idaho, 151, 286 P. 606; Johnston v. City of Galva, 316 Ill. 598, 147 N. E. 453, 38 A. L. R. 1384; Trapnell v. City of Red Oak Junction, 76 Iowa 744, 39 N. W. 884; Posch v. Payne, 151 Minn. 111, 186 N. W. 13......
  • Hoggard v. City Of Richmond.*
    • United States
    • Virginia Supreme Court
    • January 9, 1939
    ...was liable to plaintiff, who was injured in diving off the board into shallow water. See Johnston v. City of Galva, 316 111. 598, 147 N.E. 453, 38 A.L.R. 1384, and Miller v. City of Woodburn, 134 Or. 536, 294 P. 349. Sometimes recovery under the nuisance doctrine is restricted to property d......
  • First Springfield Bank and Trust v. Galman
    • United States
    • United States Appellate Court of Illinois
    • November 4, 1998
    ...Co. v. Illinois State Toll Highway Comm'n, 34 Ill.2d 544, 548, 216 N.E.2d 788, 791 (1966) (in dicta ); cf. Johnston v. City of Galva, 316 Ill. 598, 602-03, 147 N.E. 453, 454 (1925) (property owner had no obligation to mitigate damages from a public nuisance), and Casey v. Baseden, 111 Ill.2......
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