Peck v. Herrington

• Decision Date: 23 January 1884
• Citation: 50 Am.Rep. 627,1884 WL 9829,109 Ill. 611
• Parties: ELI PECK et al.v.JAMES HERRINGTON.
• Court: Illinois Supreme Court

109 Ill. 611

1884 WL 9829 (Ill.)

50 Am.Rep. 627

ELI PECK et al.

v.JAMES HERRINGTON.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. UPTON, Judge, presiding.

This was a bill in chancery, filed in the Kane circuit court by James Herrington, against Eli Peck and Sackett Booth, seeking a perpetual injunction restraining the defendants from draining certain sloughs, or small ponds, situate nearly a mile from complainant's lands, into the natural water-course or channel on their own lands, whereby it is claimed it will flow over his lands and into Mill creek. On a hearing, the circuit court dismissed the bill for want of equity, and dissolved the injunction. From this decree the complainant brought the case, by appeal, to the Appellate Court for the Second District, where the decree of the circuit court was reversed, and the cause remanded, with directions to the latter court to render a decree in accordance with the opinion of the Appellate Court. From this order the original defendants appealed to this court. The facts are sufficiently stated in the opinion.

The following is the diagram or map referred to in the opinion:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Mr. CHARLES WHEATON, Messrs. NICHOLS & CLAPSADDLE, and Mr. F. GREEN GARFIELD, for the appellants:

As to the right of a party to improve his land by throwing increased water upon lower land through the natural channel, see Martin v. Riddle,26 Pa. St. 415; Kauffman v. Griesemer, 26 Id. 407; Goodale v. Tuttle, 29 N. Y. 459; Miller v. Laubach, 47 Pa. St. 154; Gormley v. Sanford, 52 Ill. 158; Washburn on Easements, 292, 427; Gannon v. Hargadon, 10 Allen, 110; Broadbent v. Ramsbotham, 11 Exch. 602; Martin v. Jett, 12 La. 504; Rawstron v. Taylor, 11 Exch. 369; Delahoussage v. Judice, 11 La. Ann. 587; Herbert v. Hudson, 13 La. 54; Dallmen v. Davis, 14 Id. 161; Angell on Water-courses, 122; Frazier v. Brown, 12 Ohio St. 294; Buffon v. Haines, 5 R. I. 243; Hicks v. Silliman et al. 93 Ill. 256; Mellor v. Pilgrim, 7 Bradw. 306; Carl v. De Hart, 12 N. J. (1 Beas. Ch.) 280; 81 N. Y. 86.

Mr. B. C. COOK, for the appellee:

While the owner of the superior heritage has a natural easement to have the water which falls upon his lands flow off the same upon the lands of an adjoining heritage below, yet he can not, by a system of drainage, collect the water and precipitate it upon the land below. Smith v. Kenrich, 7 C. B. 515; Dickenson v. City of Worcester, 7 Allen, 19; Butler v. Peck, 16 Ohio St. 334; Miller v. Laubach, 47 Pa. 154; Frazier et ux. v. Wayne, 29 Wis. 511; Hoyt et al. v. City of Hudson, 27 Id. 656; Hicks v. Silliman, 93 Ill. 255; Livingston v. McDonald, 21 Iowa, 160; Taylor v. Fickas, 69 Ind. 201; Schlecker v. Phillippi, 67 Id. 201; Waffle v. New York Central R. R. Co. 58 Barb. 413; Cooley on Torts, 577; Washburn on Easements, secs. 209, 210; Wood on Nuisance, 404.

Per CURIAM:

Much evidence was introduced on the hearing of this cause, which has been carefully considered, and while there is some conflict in the testimony, yet upon the main points involved there is no more conflict than may be expected where so many witnesses have been examined. The Appellate Court, as appears from the record, found the facts differently from the circuit court, and from the facts so found arrived at a different conclusion from the one reached by the circuit court, and hence reversed the decree which had been rendered in the circuit court.

Without undertaking to determine whether all the facts found by the Appellate Court are fully justified by the evidence, we think it is clear, from the testimony heard on the trial, that the land of appellant Peck lies much higher than the land of appellee, Herrington. From “A,” the pond on the land of Peck, along the dotted line on the map in evidence, to “I,” where the water is discharged on Herrington's land, there is a gradual descent, the pond “A” being 29.72 feet higher than the point “I.” From “I,” across Herrington's land, to Mill creek, at point “L,” there is a fall of 10.17 feet, which makes a fall of 39.89 feet from the pond on appellants' land to “L,” the surface of the water of Mill creek. It also appears, from the evidence, that during the wet portion of the season, for many years, there has been a natural flow of surface water along or near the dotted line from “A” to “I.” Upon this point Mr. Hawkins, who was familiar with the location of the property, testified: “The natural outlet of pond ‘A,’ as it existed in a state of nature, was very nearly where the dotted line is, as represented on the Pease map. I am familiar with the lay of the country between pond ‘A’ and the point ‘I,’ as shown by the dotted line on this map, and the ditch or excavation, and know which way the water would flow from pond ‘A,’ in a state of nature. I think the dotted line is the natural outlet of the water as it was when I first became acquainted with the land. There are places where the courses have been obstructed by plowing, etc. There is a natural outlet of this slough ‘A’ along where this dotted line is on this map, that was not straight, to carry the water in a straight line through Mr. Peck's line; some little obstruction would be encountered, through which knoll-ditches would be cut, but not changing the natural course of the water materially. I do not think the surface drainage from pond ‘A,’ as shown on this map, has been changed, as to its point of discharge at the point ‘I,’ by the means of these ditches. The water always run there. There has been no change of the surface drainage between pond ‘A’ and point ‘I.’ There has been a ditch dug between slough ‘A’ and a little, say some one hundred feet, from the slough or pond, continuing on to the next slough near Mr. Booth's. I should think that ditch is in the natural outlet, as near as could be dug. Then as the ditch is continued from the east sag on towards the road running north and south, it varies a little from the natural outlet. This ditch from the east sag is about straight, while the natural channel runs a little crooked. It varies but a few feet, at the farthest, from the natural outlet, while when it strikes the road it comes to the natural outlet again. I can't explain every place where the water would have run thirty-five years ago. As I said before, there was made, years ago, a channel with a plow, across Mr. Peck's field, in the lowest place most of the way, so as to convey it (the water) into one channel across this field. There is a point near the quarter section, on section 7, on land formerly owned by Mr. Bullard. I should think the course of the water had been changed a little there, the natural channel being a few rods north of the ditch, as indicated by the dotted line, but making around into the same natural water-course where the water runs now, and not changing the natural outlet. West of this north and south road, and on section 7, there is a natural depression where this water-course is,--there is more than one hundred acres, there may be two hundred of it,--which naturally descends towards the ponds indicated by the dotted line on the map. These ditches, made with a plow along the course of this dotted line between points ‘A’ and ‘I,’ have not in any manner changed the outlet or discharge of the water at point ‘I.’ I do not see how these ditches between points ‘C’ and ‘I’ have had, or could in any manner affect or increase the quantity of water discharged at point ‘I.’ ” The testimony of this witness was corroborated by that of others. It also appears, from the evidence, that at point “D,” marked on the map, the land was originally quite flat, and after long-continued rains the water would stand upon it for a time. In 1854 the land now owned by Herrington was owned by one John Bullard, who also owned the land extending from “D” to “E,” and for a distance of fifteen rods west of “E.” At the date last named, by the consent and with the authority of Bullard, the then owner, the natural channel of the surface water from “D” to “E,” and fifteen rods west, was deepened, and since that time no water has been known to stand at the point “D.” It also appears, from the evidence, that the tile-drain which Peck proposed to put in when the injunction was served, extended from “A” to “C,” where the water would be discharged in the natural channel where the surface water had run for many years. The point “C,” which appellant designed as the outlet for the tile-drain, was on his own land, and a distance of more than a...