Lambert v. Alcorn

• Decision Date: 19 January 1893
• Citation: 144 Ill. 313,33 N.E. 53
• Parties: LAMBERT et al. v. ALCORN.
• Court: Illinois Supreme Court

144 Ill. 313

33 N.E. 53

LAMBERT et al.

v.ALCORN.¹

Supreme Court of Illinois.

Jan. 19, 1893.

Appeal from appellate court, second district.

Bill for injunction brought by Menzo Lambert and Hannibal Hill against Joseph Alcorn. A decree was entered granting complainants part of the relief prayed for, which decree was affirmed by the appellate court. Complainants appeal. Modified.Brown & Ayers and J. B. Rice, for appellants.

Fowler Bros., for appellee.

BAILEY, C. J.

This was a bill in chancery brought by Menzo Lambert and Hannibal Hill against Joseph Alcorn to restrain the defendant from putting a system of tile drains on his own land, and extending the same across certain adjoining land belonging to Mary Wilson, whereby the surface water of the defendant's land would be discharged into a ditch in a public highway, whence it would flow onto and across the lands of the complainants towards the stream known as ‘Indian Creek.’ The defendant is the owner of a tract of land of somewhat irregular shape, containing about 160 acres; the north line of the tract being the line running east and west through the centers of sections 8, 9, and 10 of a certain township in La Salle county. Adjoining the defendant's land on the west is a tract of about 40 rods in width, belonging to Mary Wilson. Lambert, one of the complainants, owns a tract of land 80 rods in width, east and west, lying immediately west and north of, and cornering upon, the land of Mary Wilson. Immediately west of Lambert's land is another tract 80 rods in width, also belonging to Mary Wilson; and adjoining that land on the west is the land of complainant Hill. Indian creek runs some distance to the west of Hill's land. The defendant's land, and the first-mentioned tract belonging to Mary Wilson, are bounded on the north by a highway, which runs from a point a considerable distance east of those tracts to a point a few rods west of the southeast corner of Lambert's land, where it terminates in another highway, running from the northeast to the southwest, and cutting across Lambert's land near its corner.

The bill alleges that the defendant's land is very wet, and at certain seasons of the year filled with sloughs and ponds; that such sloughs and ponds are the natural receptacles of the most of the surface water falling upon the defendant's land; that, if left to its natural course, very little, if any, of the surface water would flow to and upon the land of the complainants; that their lands are good farm lands, and under good cultivation, and very valuable; that the defendant is preparing, by means of a tile drain, to drain all of his land upon the lands of the complainants, to their irreparable injury; that the natural course of the water is not to and upon the lands of the complainants; and that it could never reach or damage their lands, save by artificial means. The defendant, by his answer, admits that some portions of his land are low and wet, but not boggy or swampy; that there are upon portions of his land basins or natural depressions, that during wet seasons of the year fill up with water, forming small ponds; that above a certain point or level such ponds will overflow, and pass off from the defendant's land, in a westerly or northwesterly course, down through a natural depression in the surface of the land, into Indian creek; that all the water accumulating on the defendant's land (except in a designated part of the southwest portion thereof, and except as retained in the natural depressions in the surface of the soil) has so passed off, along such draw or natural depression in the surface, ever since the original settlement of the country, and before any of the lands were fenced, or any ditches or drains were cut through then; that this natural depression in the surface is, and for all time has been, a natural course for the water accumulating on the defendant's land to pass off into Indian creek; that the water accumulating in some of the ponds on the defendant's land naturally passes off, of itself; that in others the water, having no means of escape except by evaporation, percolates through the adjoining land, rendering much of it wet and unfit for cultivation, and rendering the land unhealthy for the defendant and his family; that if the water should be drained off, as it easily can be, the land would become healthy, rich, and productive. The answer further alleges that in the year 1890 he decided to drain certain portions of his land, and for that purpose he purchased large quantities of drain tile, and employed competentand skillful persons to lay out drains across that portion of his land along the above natural depression in the surface, west, into a similar drain laid along the same natural depression across the land of Mrs. Wilson; that he had cut a ditch and laid a tile drain from the west line of his land, easterly, some 50 or 60 rods, when the injunction in this suit was served; that he intended to extend his tile drain to the east line of his land, and to lay lateral drains south from the main drain on so much of his land as would naturally discharge its waters in that direction, although he had not yet attempted to determine how far the waters would naturally flow in that direction. The answer denies that his proposed drains would work permanent or irreparable injury to the complainants, and denies that he proposed, or had attempted, to drain the water accumulating on the southeasterly part of his land, above mentioned, into the draw or natural depression running towards the west, and discharging water onto or through the complainants' lands; but, on the contrary, disclaims any intention of ever doing so.

The cause being heard on pleadings and proof, the court found that the defendant's land is flat and wet, and that there are several ponds thereon, formed by natural depressions in the surface; that, in times of heavy rains and melting snows, these ponds fill with water; that there is a natural depression, slough, swale, or draw extending across the defendant's land, except the southeast part thereof, and extending westerly across the land of both the complainants, and emptying into Indian creek, wherein surface water from rains and melting snows has always, in a state of nature, passed from the defendant's land, except as above mentioned, across the lands of the complainants, to the creek, and when, in times of high water, these ponds have over flowed, the natural course of the water has been through the same natural draw or water course to the creek; that about 50 acres in the southeast part of the defendant's land do not naturally discharge their surface water westerly through this draw or water course. The court further found that the material allegations of the bill were not sustained by the proofs, except as to the 50 acres above mentioned, and that the material allegations of the defendant's answer were sustained by the proofs, except as to the 50 acres; that as to the 50 acres the equities were with the complainants, and they were entitled to have the injunction made perpetual; but that as to all the other lands of the defendant the equities were with the defendant, and he was entitled to have the injunction dissolved. A decree was accordingly entered, making the injunction perpetual as to the 50 acres, and dissolving it as to the residue of the land; and the defendant was adjudged to pay one tenth of the witness fees, and of the fees of the sheriff for serving subpoenas, and the complainants were adjudged to pay the residue of the costs. By leave of the court the defendant filed his suggestions of damages on dissolution of the injunction, and upon the hearing of his suggestions the court assessed his damages at $338.55; and a decree was thereupon rendered in his favor, and against the complainants, for that sum. From the foregoing decree the complainants appealed to the appellate court, and assigned various errors. The defendant also assigned as a cross error that portion of the decree making the injunction perpetual as to 50 acres of his land. The appellate court overruled the errors assigned by both parties, and affirmed the decree in all respects. The complainats, by a further appeal, have now brought the record to this court, and substantially the same errors and cross errors are assigned here as in the appellate court.

The evidence adduced at the hearing is quite voluminous, and relates mainly to the topography of the lands of the complainants and defendnt, and of the other lands in that vicinity. Without pausing to state any portion of the evidence in detail, it will suffice for us to say that we have given it careful consideration, and find that it clearly establishes the following facts: The lands owned by the parties to this suit form a part of a body or tract of land containing three or four thousand acres, or more, lying south and east of Indian creek, and being almost wholly low, flat, and nearly level, and interspersed with small depressions, which in wet weather are filled with water, and become small ponds. The general slope of this land is towards the creek, and there is, and was when the land was in its natural state, a slight depression or swale running across the northerly side of defendant's land, and thence, across the land owned by Mrs. Wilson, to the highway running along the northern boundary of her land and that of the defendant, and thence, in a general direction a little north of west, across the lands of the complainants and other intervening tracts, to the creek. The descent along this swale or depression towards the creek is slight; the elevation of its bed, as shown by measurements in evidence, at the easterly line of the defendant's land, being a little less than 30 feet, and at the westerly line a little over 27 feet, above the level of the creek. But, as we understand the evidence, it is shown with sufficient clearness that in times of high water the drainage from all ...