Moore v. Gar Creek Drainge Dist
| Decision Date | 04 February 1915 |
| Docket Number | No. 9763.,9763. |
| Citation | 266 Ill. 399,107 N.E. 642 |
| Parties | MOORE v. GAR CREEK DRAINGE DIST. et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kankakee County; Charles B. Campbell, Judge.
Injunction by Stephen R. Moore against the Gar Creek Drainage District and others. From a decree for defendants, complainant appeals. Reversed and remanded, with directions.
Stephen R. Moore and Smith & Marcotte, all of Kankakee, for appellant.
J. Bert. Miller and W. H. Savary, both of Kankakee, for appellees.
The Gar Creek drainage district was organized in Kankakee county in 1883 under what is commonly known as the Levee Act (Hurd's Rev. St. 1913, c. 42, §§ 1-74). Appellant, Stephen R. Moore, owns a quarter section of land within the district, along the south side of which is a public highway. Various improvements were made in the district after its organization but no ditch has ever been constructed by the district through or along the land of appellant. On June 28, 1912, a plan for additional work in the district was adopted upon petition of the commissioners, which provided for the construction of a branch ditch extending along the north side of the highway adjoining the said land of appellant and through that part of the highway of which appellant owned the fee. In the order of June 28th the court directed the commissioners to acquire rights of way and to prepare their roll of assessments of benefits and damages. The grant of a right of way 20 feet in which over the land of appellant in the highway was secured from the commissioners of highways. The assessment roll was duly filed, appellant appeared and filed objections, a jury was impaneled, and a verdict returned assessing the sum of $1,626.26 as benefits against said land of appellant, which verdict was confirmed by order of court. Thereafter the drainage commissioners let a contract for the excavation of a ditch and the laying therein of a 24-inch tile upon the land of appellant lying within the highway. Appellant filed his bill for injunction in the circuit court of Kankakee county against the Gar Creek drainage district and the commissioners thereof, in which he alleged the organization of the district and the making of various improvements therein; that a contract had been let to make the proposed improvement; that the drainage commissioners are about to begin the excavation of a ditch and the laying of tile upon his said land; and that the said commissioners have not obtained any right of way from appellant over his said land, and prayed that the defendants be enjoined from excavating said dich or laying any tile in the land of appellant along said public highway until they had obtained a right of way therefor. Upon the filing of the bill a temporary injunction was granted, which was later dissolved upon motion. Upon final hearing the bill was dismissed for want of equity, and this appeal followed.
Appellees state in their brief that prior to the filing of the assessment roll the drainage commissioners acquired the right of way for the ditch along the highway in question from the commissioners of highways, but that they did not acquire, nor attempt to acquire, the right of way from appellant, as they did not believe the law required them to do so.
The principal question involved is whether it was necessary for the drainage commissioners to obtain the right of way from appellant, the owner of the fee in the highway, as well as from the commissioners of highways, before they could make this improvement upon that part of his land. In support of their position that this was not necessary, appellees make two contentions: (1) That the commissioners of highways had the sole right to grant this right of way for drainage purposes; and (2) that, even if it was necessary to secure the right of way from appellant, he failed to have his damages assessed for such right of way upon the hearing on the confirmation of the assessment roll. The further contention is made that injunction is not a proper relief in this case.
In support of the first proposition, appellees cite People v. Magruder, 237 Ill. 340, 86 N. E. 615, and Cosby v. Barnes, 251 Ill. 460, 96 N. E. 282. These cases do not support appellees' position. The commissioners of highways have jurisdiction over public roads and it devolves upon them to see that the highways are properly drained, and as is stated in People v. Magruder, supra, where the commissioners of highways undertake to drain a public highway, they possess the same rights and are to be governed by the same rules as adjoining landowners, except in cases where t...
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