Mauvaisterre Drainage & Levee Dist. v. Wabash Ry. Co.

• Decision Date: 22 October 1921
• Docket Number: No. 14060.,14060.
• Citation: 299 Ill. 299,132 N.E. 559
• Court: Illinois Supreme Court
• Parties: MAUVAISTERRE DRAINAGE & LEVEE DIST v. WABASH RY. CO.

299 Ill. 299

132 N.E. 559

MAUVAISTERRE DRAINAGE & LEVEE DIST

v.WABASH RY. CO.

No. 14060.

Supreme Court of Illinois.

Oct. 22, 1921.

Proceeding by the Mauvaisterre Drainage & Levee District against the Wabash Railway Company. From an adverse judgment, the defendant appeals.

Reversed and remanded.Appeal from Scott County Court; Thomas Henshaw, Judge.

Bellatti, Bellatti & Moriarity, of Jacksonville, for appellant.

J. M. Riggs, of Winchester, for appellee.

CARTER, J.

This was a proceeding brought under the Eminent Domain Act (Hurd's Rev. St. c. 47) by the Mauvaisterre Drainage & Levee District, in Scott county, to condemn in the county court of that county a right of way for a levee, known here as the Wolf Run levee, across the Wabash Railway Company's right of way and other lands. After several motions were filed and various orders entered, an amended petition was filed by appellee and a cross-petition by appellant, the latter asking for the assessment of damages to its property contiguous to that proposed to be taken. After the pleadings were settled and a motion had been allowed giving appellant a separate trial, a jury was impaneled to find the just compensation to be paid appellant for the property taken and to assess the damages to its property not taken. The jury returned a verdict finding the market value of the property sought to be taken to be $100, and the damages to the right of way of appellant's main line not taken to be $2,000 and to the right of way of its socalled Keokuk line not taken to be $2,500. A judgment was entered on this verdict, after motion for new trial was made and overruled. An appeal was then perfected to this court.

The appellee drainage district, organized under the so-called Levee Act for the protection of lands from the overflow waters of Mauvaisterre creek, had been in existence for some years. The amended petition was filed to protect the lands near Wolf run, which is a stream not far from Mauvaisterre creek, from overflowing lands north of said creek in the vicinity of said run. The evidence shows that Wolf run rises in the high lands to the east and southeast of the village of Bluffs, in Scott county; that it drains approximately nine square miles of territory; that it receives the waters of several branches as it comes down from the higher lands east of Bluffs; and that it also receives the waters of a creek known as Merris branch, which empties into Wolf run near the western corporate limits of Bluffs. The current of Wolf run as it comes down from the high lands east of Bluffs, where it crosses back and forth under the Wabash tracks several times, is quite rapid. A short distance east of Bluffs the ground flattens out somewhat, although the stream still runs quite rapidly through the village about 600 feet south of the Wabash tracks. It then meanders in a northwesterly direction until a short distance from the west corporation line of Bulffs, where it runs up to and along the side of the right of way of the main line of the Wabash, and at about the same point receives the waters of Merris branch. The evidence shows that at that point the Wabash tracks run slightly north of west. Wolf run flows along the side of the right of way south of the Wabash tracks for about 1,000 feet, when it makes a rather abrupt turn to the north and flows across the Wabash right of way under a bridge known in the case as bridge 500. The evidence further shows that just before reaching bridge 500 the Wabash railroad divides into two branches, one running west to the village of Naples and then continuing to Hannibal, Mo., and the other taking a northwesterly course for about a mile, thence turning north and going to Meredosia and thence northwesterly to Keokuk, Iowa. The line running to Hannibal is known as the main line, the other line being commonly called the Keokuk branch. The evidence also shows that Wolf run, after crossing the main line under bridge 500, has flowed for years in a northwesterly direction, immediately adjoining on the west the right of way of the Keokuk branch for a distance of 4,000 feet for all of which distance the fall of the stream continues to diminish, and at about 4,000 feet it makes another abrupt turn to the north, or slightly northeast, across the right of way of the Keokuk branch, under a bridge that is called in the record 277-A; that it then flows northerly and northeasterly, passing through teerritory formerly known as Dickerson Lake, and having a very gradual fall for about a mile and a half into a cut ditch called sometimes in the record Dresser ditch and sometimes Coon Run ditch and thence west along this ditch, crossing the Keokuk branch once more, to the Illinois river. The evidence tends to show that Dickerson Lake is a shallow body of water, into which several streams, including Wolf run, ran in the natural condition of the country. It had no outlet to the west, towards the Illinois river, but had an outlet for overflow to the south and southwest across the present right of way of the Keokuk branch, where the overflow finally went into what is called in the record Bug Island Lake, which seems to be low, swampy territory, and not a lake in the real sense of the term, except in high water, and thence south and westerly into the Mauvaisterre creek, and through that into the Illinois river. The evidence also tends to show that from a point near the junction of the Merris branch with Wolf run some of the owners of the lands in that vicinity had constructed a private levee along the southwesterly side of Wolf run down to the Wabash main right of way west of bridge 500, the top of the levee being about level with the top of the railroad embankment on the opposite side of the stream. The evidence tends to show that northwest of bridge 500 a levee had also been thrown up on the southwesterly side of Wolf run, extending from a point a few hundred feet northwest of said bridge to a public highway known as Naples highway, which ran west across the Keokuk branch just northwest of bridge 277-A; that this private levee was, on an average, about the same height as the railroad embankment on the opposite side of the stream. There is some evidence also to the effect that said levee and the railroad embankment were at about the same height above the natural surface of the ground, and at some points as much as 4 or 5 feet above, and that at times of heavy rains in the watershed area of Wolf run great quantities of water came down said stream in a short time, and usually or frequently overflowed the lands and sometimes the levee and the embankmnt of the railway, and as speedily subsided.

The evidence shows that the village of Bluffs is situated in the northwest corner of a certain section 15; that before there was any village of Bulffs the railroad was built across section 15, and at the time of the earliest recollection of the oldest witness testifying, the railroad tracks on both the Hannibal and Keokuk lines were in paractically the same location as at present; that Wolf run has come during all these years from the east in practically the same channel as at present down to where Merris branch empties into it, and that then it came up near to the Wabash railroad and ran on the south side of the Wabash tracks; that at that time there was no levee on the south or southwest side, and that all or part of the waters of Wolf run kept south of the Hannibal line and spread out over the bottoms, where the surface water gradually emptied into what is called Cassidy Lake, and finally into Bug Island Lake; that the Keokuk line, as originally constructed to the northwest, ran across to the southern end of the so-called Dickerson Lake on an embankment across said lake, except that near the middle of the lake there was a 50-foot bridge constructed, known as bridge 278; that the overflow water from Dickerson Lake before the so-called Dresser or Coon Run ditch was cut through the sand bank in the northern part of the lake would go under bridge 278, thence southwest through the long law swale known as Bug Island Lake, and thence to Mauvaisterre creek, the swale passing under the main line of the Wabash at a bridge known as 501, which is still in existence, at a point about 666 feet west of bridge 500.

The evidence shows that about 1883 some persons, either under the auspices of a sort of drainage district or by voluntary combination, cut a ditch through the sand ridge on the west of Dickerson Lake towards the north end, so that afterwards the waters of Dickerson Lake had an outlet at its northern end, and that thereafter a part of the waters of Wolf run flowed with the waters of Dickerson Lake north and west through this ditch into the Illinois river, but the overflow waters still continued to some extent to flow under bridge 278 from Dickerson Lake to the west and southwest and down through Bug Island Lake and under bridge 501 to Mauvaisterre creek. There is some evidence in the record tending to show that about 1886 the owners of the land where Wolf run flows northwest of bridge 500 began to throw up a small levee on the west side of the stream, and that thereby the bed of the stream was continued to be pushed over until it ran in almost a straight course along and opposite the right of way of the Keokuk branch; that this straightening of the bed of the stream along the right of way was partly caused by a ditch being dug for that purpose, and partly by the levee so built.

The evidence also tends to show that about 1888 a section foreman of the Wabash Railway (Steplin) was seen by certain farmers with reference to taking out a cattle guard which existed near the present site of bridge 277-A and putting a bridge there. After a conference with his superiors in the fall of that year a bridge crew of the railway company was sent to that place, and bridge 277-A was built. It is a pile bridge about 60 feet long, and set on four or five rows of piling. The piles constituting...