Jones v. Sanitary Dist. of Chicago

• Decision Date: 08 February 1912
• Citation: 252 Ill. 591,97 N.E. 210
• Parties: JONES v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

252 Ill. 591

97 N.E. 210

JONES

v.SANITARY DIST. OF CHICAGO.

Supreme Court of Illinois.

Dec. 21, 1911.

Rehearing Denied Feb. 8, 1912.

Appeal from Superior Court, Cook County; Duane J. Carnes, Judge.

Action by Owen S. Jones against the Sanitary District of Chicago. From a judgment for plaintiff, defendant appeals. Affirmed.Frank J. Quinn, James S. Handy, Chiperfield & Chiperfield, and Walter E. Beebe (P. C. Haley and John C. Williams, of counsel), for appellant.

Pease, Smietanka & Polkey (Warren Pease and Charles P. Molthrop, of counsel), for appellee.

COOKE, J.

This is an action on the case brought by Owen S. Jones, appellee, against the Sanitary District of Chicago, appellant, in the superior court of Cook county. The original declaration consisted of one count, and was filed March 17, 1908. It alleged that appellee was, and had been for more than five years prior to the commencement of the suit, the owner in fee simple of 1,976 acres of land in Cass county; that, prior to the commission of the acts complained of, said land was covered by timber, the lumber of which was used for commercial and manufacturing purposes; that appellant in 1900 turned the waters of Lake Michigan and the Chicago river into the tributaries of the Illinois river, having theretofore, by virtue of authority conferred on it by law, cut certain channels connecting the said Chicago river with the tributaries of the Illinois river; that the flow of water through said channel and into the Illinois river was under the control of appellant, which might at all times regulate the same by means of certain appliances; that at various times during the five years prior to the commencement of the suit large quantities of water were caused to flow from Lake Michigan and the Chicago river into the Illinois river; that the lands of appellee lie adjacent to the Illinois river, in Cass county, and were overflowed as a result of this addition to the waters of the Illinois river; that because of the wrongful acts of appellant and the careless and negligent management of said waters, and because of the increased flow the Illinois river the lands of appellee were overflowed for the greater portion of each year, causing large quantities of appellee's timber to die, and rendering his land unfit for grazing and agricultural purposes. Subsequently appellee filed an additional count, in which he alleged that his lands were covered by timber of great value and in a lively and flourishing condition on March 17, 1903, and at that date, and at all times thereafter, appellant had caused the waters of Lake Michigan to flow through its drainage canal into the Illinois river, whereby the amount of water in said river had been greatly increased during the period from March 17, 1903, to the time of the beginning of the suit. The additional count further alleged that the canal was constructed and operated by appellant under a statute giving it power to do so, and which provided that it should be liable for all damage to real estate which should be overflowed or otherwise damaged by reason of the construction, enlargement, or use of such channel. It contained the same allegations with reference to overflowing the lands as the original count, except that it did not charge that the overflowing of the lands was caused by any negligent act on the part of appellant. To both counts of the declaration appellant filed the general issue, a plea denying that appellee was the owner in fee simple of the lands described, and a plea of the statute of limitations. A demurrer was sustained to the plea of the statute of limitations, and appellant stood by its plea. The plea of the statute of limitations set up the organization of the sanitary district under the act of 1889 (Laws 1889, p. 125), entitled ‘An act to create sanitary districts and to remove obstructions in the Desplaines and Illinois rivers'; that any channel constructed under the provisions of this act should be of certain size and capacity; that in the event of its operation a continuous flow of 200,000 cubic feet of water per minute should be produced and maintained, and 20,000 cubic feet of water per minute additionalfor every 100,000 inhabitants of the said district exceeding 1,500,000; that the channel was constructed pursuant to such authority; and that from January 17, 1900, when the channel was opened, there has been discharged through said channel into the Desplaines river the quantity of water required by the statute, to wit, 300,000 cubic feet per minute; that the construction of the channel was and is a permanent work and was done in a skillful, prudent, and workmanlike manner; that from the time of the opening of said channel to the present time the flow of water required has been continously maintained; and that any damage sustained by appellee was caused by the construction of the channel and the turning in of the water on January 17, 1900. Issues were joined on the plea of general issue and the plea denying appellee's title to the lands, and a trial resulted in a verdict for the appellee for $6,250. Subsequently, appellee, under section 19 of the act of 1889, relating to sanitary districts, moved the court to fix his attorney's fees, and upon a hearing the court allowed $3,000 to appellee for his attorney's fees and entered judgment on the verdict and for the amount of the fees. From that judgment appellant prayed an appeal to the Appellate Court for the First District, where, on motion of appellee, the cause was transferred to this court on the ground that a freehold is involved.

Appellant contends: (1) That a freehold is not involved, and that the cause should be retransferred to the Appellate Court; (2) that the demurrer to the plea of the statute of limitations should have been overruled; (3) that the measure of damages adopted was improper; (4) that the verdict is against the weight of the evidence; (5) that the court erred in allowing appellee's attorney's fees; and (6) that the court erred in giving and refusing instructions.

This is a suit for damages to real estate, and it was necessary that appellee allege and prove his ownership. In both the original declaration and in the additional count appellee alleges that he owned the land in question at the time of the alleged trespasses. Appellant filed a plea denying that at the time of the beginning of the suit and during the time of the commission of the alleged offenses appellee was the owner of the lands. On the trial, to maintain the issues on his part, appellee made proof of his title, and the court instructed the jury that it was incumbent upon him to prove that during the five years next preceding March 17, 1908, he was the owner in fee simple of the lands described in the declaration. Appellant asked an instruction directing the jury to find it not guilty, for the reason that appellee had failed to show by competent evidence that he was the owner in fee of the lands described in the declaration; but this instruction was properly refused, for the reason that appellee had sufficiently proven his ownership.

[1] We have repeatedly held that, when a freehold is so put in issue that a decision of the case necessarily involves a decision of that question, this court has jurisdiction on direct appeal. Monroe v. Van Meter, 100 Ill. 347;Piper v. Connelly, 108 Ill. 646;Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855;Van Tassell v. Wakefield, 214 Ill. 205, 73 N. E. 340;Wachsmuth v. Penn Mutual Life Ins. Co., 231 Ill. 29, 83 N. E. 85;Schwitters v. Barnes, 243 Ill. 493, 90 N. E. 1060. In this case, by filing its plea denying appellee's title, the freehold was directly put in issue, and a decision of the case necessarily involved a decision of that issue.

[2] It is immaterial that appellant now concedes the title of appellee and does not care to further contest that point. It was a material issue in the trial court, and, being an action at law, the issues there determine the jurisdiction of this court on appeal. A freehold is involved within the meaning of the Constitution, and the cause was properly transferred to this court.

[3] The contention that the court erred in sustaining the demurrer to the plea of the statute of limitations is based upon the claim that, as the building of the drainage canal is authorized by an act of the Legislature and is permanent in its character, the injury inflicted upon appellee, if any, is permanent, and he is limited to one cause of action for the recovery of all damages, past, present, and prospective, and that his right of action accrued more than five years before the commencement of the suit. In support of this contention appellant relies on the class of cases which hold that when the original nuisance or cause is of a permanent character, so that the damage inflicted is of a permanent character and goes to the entire destruction of the estate affected thereby, the recovery not only may, but must, be had for the entire damage in one action, as the damage is deemed to be original. In those cases the injured lands were adjacent to the structure complained of, so that its construction necessarily and immediately destroyed or depreciated their value. This case does not fall within that class. The improvement known as the drainage channel is permanent in character; but it is not alleged that appellee suffered damage by reason of its construction. The construction and continuance of the channel more than 200 miles from appellee's land is not necessarily an injury. It is the use that has been made of it that it is complained has caused the injury. The declaration alleges that the lands of appellee have been overflowed but a portion of each year. This might be caused by the emptying of more water from the channel into the river at some time than at others, or it might be the result of the confluence of the waters of the drainage channel with those of a freshet, or with the waters which cause an annual rise in our...