People ex rel. Burow v. Block
| Decision Date | 21 December 1916 |
| Docket Number | No. 10211.,10211. |
| Citation | 114 N.E. 527,276 Ill. 286 |
| Parties | PEOPLE ex rel. BUROW et al. v. BLOCK et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Vermilion County; Morton W. Thompson, Judge.
Mandamus by the People, on the relation of John F. Burow and others, against Theodore L. Block and others. Judgment denying the writ and dismissing the petition, and relators bring error. Reversed and remanded, with directions.
John H. Lewman, State's Atty., of Danville, J. Ed. Thomas, of Westville, and Rearick & Meeks, of Danville, for plaintiffs in error.
Clark & Hutton, of Danville, for defendants in error.
The commissioners of highways of the towns of Danville and Georgetown, in the county of Vermilion, filed in the circuit court of that county a petition for mandamus against the drainage commissioners of the Sinking Hole drainage district. The petition alleged that the drainage commissioners had, among other improvements in their district, constructed an open ditch across a public highway known as Kelly lane, on the town line between the towns of Danville and Georgetown, and had not provided any bridge or crossing over the ditch, but had left an open space across the highway 30 feet wide and 12 feet deep, and had injured and impaired the public use of the highway and made it impassable; that to restore the highway to its former condition for use for public travel would require the erection of a bridge 36 feet long and 20 feet wide, at a cost of about $2,000; and that the drainage commissioners had refused to restore the highway, under the claim that no such duty rested upon them. The prayer of the petition was for a writ of mandamus commanding the drainage commissioners to restore the highway to a condition which would make it fit for public use as a highway, safe to accommodate public travel, and as good as before the commissioners had entered upon the highway. The defendants filed pleas, alleging, substantially, that the open ditch extending across the highway, before it was entered upon by the defendants, was a natural water course having an outlet in a stream called Grape creek; that the ditch constructed carried the water naturally falling upon lands above the outlet from the south to the north into Grape creek in its natural slope; that to accomplish the purpose for which the district was organized it became necessary to deepen and widen the open ditch south of the highway and to cross the highway; that the ditch was cut across the highway along the line of a natural depression for the purpose of carrying the surface waters naturally draining through such depression; that no unnecessary damage was done to the highway by the construction of the work other than by leaving the opening for a bridge; that the construction of a bridge across the channel would be of no benefit to the drainage district; that the highway is capable of use the same as before whenever the highway commissioners shall construct a bridge over the ditch; and that under the law the drainage commissioners are not authorized to expend the funds of the district for the purpose of constructing the bridge. Replications put in issue the allegation that the ditch was constructed on the line of a natural watercourse. It was stipulated that the Sinking Hole drainage district was organized under the Levee Act on June 2, 1913, and that Kelly lane is, and has been for more than 50 years, a public highway on the line between the towns of Danville and Georgetown; that the ditch in question is the main drainage ditch of the district; and that the towns of Danville and Georgetown were both assessed for benefits by reason of its construction. The cause was heard without a jury by the court, which made a finding of fact that the ditch was constructed across the highway in the line of a natural depression, channel, or water course, and that the highway is a public township road. The court held as a proposition of law that under the Levee Act, where a ditch a part of a combined system of drainage located by the report of the drainage commissioners and confirmed by the court, is constructed on the line of any natural depression, channel, or water course across a public township road, the corporate authorities of such road are required, at their own expense, to construct any bridge or other work of such road. The issues were found for the defendants, and a judgment was rendered denying the writ and dismissing the petition at the petitioners' costs, to reverse which a writ of error has been sued out.
There was evidence to sustain the court's finding that the ditch was constructed across...
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