Kankakee & S.R. Co. v. Horan

• Decision Date: 21 January 1890
• Court: Illinois Supreme Court
• Parties: KANKAKEE & S. R. CO. et. al. v. HORAN.

131 Ill. 288

23 N.E. 621

KANKAKEE & S. R. CO. et. al.

v.HORAN.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, second district.

G. S. Eldredge

, for appellants.

S. C. Stough and R. M. Wing, for appellee.

BAILEY, J.

This was an action on the case, brought by Owen Horan against the Kankakee & Seneca Railroad Company and the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company, to recover damages to the plaintiff's estate in reversion in certain lands, caused by the obstruction of a natural water-course, and the diversion of the water therefrom to and upon said lands. The declaration contains six counts. The first, second, and sixth counts allege, in substance, that at the time of the commission of the grievances thereinafter mentioned a certain farm in Grundy county, containing 240 acres of land, was in the possession and occupancy of Frank Horan as the plaintiff's tenant, the reversion thereof then and there and still belonging to the plaintiff, and that through, over, and across the northeast portion of said farm, from the south, in an northerly direction, an ancient stream, slough, or water-course was wont to run and flow in its natural channel, without obstruction or interruption, whereby, from time immemorial, said premises had been and ought to be drained and kept in good, tillable condition, and free from all injurious and damaging excess of water, yet the defendants, well knowing the premises, but contriving and intending to injure the plaintiff in his said reversionary estate and interest, on the 1st day of March, 1879, at said county, wrongfully and injuriously, with a certain line or track of railroad, commonly called the ‘Kankakee & Seneca Railroad,’ and the trenches, bridges, and embankments thereof, by the defendants then and there built over, through, and across said farm, and said ancient stream or water-course obstructed and impeded, and so narrowed and filled up the natural channel of said stream or water-course that on the day aforesaid, and from thence hitherto, said channel has been and is permanently incapable of carrying off large and divers quantities of water that were at the date aforesaid, and at divers other times between that day and the commencement of this suit, and will be from time to time upon said farm in the future, as it was wont to do, and otherwise would do. The sixth count alleges that by means of said railroad, and the grades, embankments, bridges, culverts, cuts, and trenches thereof, by the defendants then and there constructed, maintained, and kept up, the defendants have wrongfully, unjustly, and permanently diverted the water of said ancient stream, slough, or water-course from its natural channel towards, to, and upon the said farm of the plaintiff. Each of said counts alleges that by means of the premises the plaintiff has been injured in his said reversionary interest and estate. The third and fourth counts allege that the plaintiff now is, and at and before the commission by the defendants of the grievances therein complained of, and ever since has been, the owner in fee of said farm, with the appurtenances, and that said farm was of great rental value, to-wit, an annual rental value of $5,000, and, after averring the existence and description of said water-course as in the other counts, allege that the defendants, well knowing, etc., at the date aforesaid permanently diverted the water of said stream, slough, or water-course from its natural channel to and upon said premises, and thereby then and there permanently injured the plaintiff in his said estate. The fifth count alleges that at the time of the commission of the grievances complained of the plaintiff was, and ever since has been, the owner of said farm, with the appurtenances, and that said premises then were, and ever since have been, in the possession and occupation of said Frank Horan, the reversion thereof then and there belonging to the plaintiff, and that the defendants, with said line or track of railroad, and the trenches, bridges, and embankments thereof, by the defendants then and there built and constructed over and through said premises, and the said ancient stream, slough, or water-course, by means whereof the water therefrom now does, and from time to time in the future, will permanently leave its channel and course, and run to, towards, and upon, and overflow, said premises, whereby the plaintiff has been and is greatly and permanently injured in his said reversionary interest and estate in and to said premises.

The defendants severally pleaded not guilty, and at the trial the jury found both the defendants guilty, and assessed the plaintiff's damages at $7,200. For this sum and costs the circuit court, after denying the motions severally entered by the defendants for a new trial and in arrest of judgment, gave judgment in favor of the plaintiff. The defendants having appealed to the appellate court, the plaintiff there voluntarily remitted from his judgment the sum of $3,200, and said court thereupon affirmed said judgment for $4,000 and costs; and by a further appeal the defendants have now brought the record to this court for review.

The facts developed at the trial, so far as it is material to notice them here, are briefly as follows: The plaintiff is, and for many years has been, the owner in fee of a farm consisting of the S. w. 1/4 and the W. 1/2 of the S. E. 1/4 of section 32, in the town of Braceville, Grundy county. Said farm, during the entire period of time covered by the present controversy, was in the actual possession of Frank Horan, the plaintiff's son, under an arrangement by which he was permitted by the plaintiff to occupy, use, and cultivate the farm for his own benefit, without rent; the term of the tenancy being left wholly indefinite, thus constituting it a mere tenancy at will. Prior to 1881, the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company was owning and operating a line of railway running from Cincinnati, Ohio, to Kankakee, in this state, the westerly terminus of said line beign at Kankakee, and said company then being in the habit of running its trains from Kankakee to Chicago over the Illinois Central Railroad by virtue of some arrangement with the company owning that road. The Kankakee & Seneca Railroad Companywas thereupon organized on the 22d day of February, 1881, for the purpose of building a railroad connecting with the road of the Cincinnati Company at its terminus at Kankakee, and running from that point to Seneca, a station on the Chicago, Rock Island & Pacific Railway, and there connecting with that line of railway. Said proposed line of railway was built and completed during the years 1881 and 1882, nominally at least, by said Kankakee & Seneca Railroad Company; and immediately after its completion it was taken possession of and has ever since been in the possession of, and been operated, used, and controlled by, the Cincinnati Company. There was considerable evidence-most of it circumstantial, however,-tending to show that the Kankakee & Seneca Company was organized, and said road built, at the instance and in the interest of the Cincinnati Company, and was but a mere instrument created and used by the last-named company for the construction of a railroad extending its then existing line so as to connect with the line of the Rock Island Company at Seneca. The right of way for said railroad across the plaintiff's farm was conveyed by the plaintiff to said Kankakee & Seneca Railroad Company by deed. Said railroad crosses said farm in a south-easterly and north-westerly direction, crossing the north line of the farm about 40 rods east of the northwest corner, and crossing the east line about 30 rods north of the south-east corner, thus dividing the farm into two unequal portions; the southerly part containing about 170 acres, and the northerly part about 70 acres. The stream or water-course in question, known as the ‘Parker Slough,’ rises at a point several miles south of said farm, and, running north-easterly, crosses the line of the railroad at a point about 80 rods east of the south-east corner of the farm, and then, taking a north-westerly direction, crosses the east line of the farm about 25 rods south of the north-east corner, and thence, making a slight curve, returns, and emerges from the farm near said corner. The surface of said farm, and of the surrounding region, is low, and nearly level; and the railroad, from the point where it enters the farm, near the north-west corner, to the place where it crosses the slough, constitutes an embankment from 2 1/2 to 3 feet in height. The railroad crosses the slough by a bridge built upon piles driven into the ground. Another, smaller slough, situated some distance east, rises south of the farm, and runs northerly across the south-east corner of the farm, and crosses the line of the railroad at a point near where the railroad crosses the east line of the farm, and there is constructed another bridge similar to the one over the other slough. In constructing the railroad embankment a ditch was excavated along the southerly side of the embankment, about 1 1/2 feet in depth, and from 15 to 20 feet in width. This ditch was carried easterly nearly to the Parker slough, a few feet only of earth being left between the end of the ditch and the slough. There was evidence tending to show that the openings through the railroad embankment under the bridge were not sufficient to carry off and discharge the water in the Parker slough in times of high water, and that large quantities of water were consequently dammed up so as to set back upon and flood the portion of the farm south of the railroad; also, that the water cut a channel through the earth left between the Parker slough and the railroad ditch, and that large quantities of water were thereby let into said ditch, and carried easterly so as to flood the farm.

All of the controverted...