People ex rel. Peeler v. Chicago & E.I.R. Co.

• Decision Date: 15 April 1914
• Citation: 104 N.E. 831,262 Ill. 492
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. PEELER et al. v. CHICAGO & E. I. R. CO.

262 Ill. 492

104 N.E. 831

PEOPLE ex rel. PEELER et al.

v.CHICAGO & E. I. R. CO.

Supreme Court of Illinois.

Feb. 21, 1914.

Rehearing Denied April 15, 1914.

Appeal from Circuit Court, Massac County; William N. Butler, Judge.

Petition by the People, on relation of S. D. Peeler and others, for mandamus to compel the Chicago & Eastern Illinois Railroad Company to remove obstructions from a water course. From a judgment sustaining defendant's demurrer, plaintiffs appeal. Affirmed.Courtney, Helm & Helm, of Metropolis, for appellants.

Robert J. Folonie and Homer T. Dick, both of Chicago, and C. L. V. Mulkey, of Metropolis (E. H. Seneff, of Chicago, of counsel), for appellee.

FARMER, J.

Appellants, the commissioners of Cache River drainage district, filed their petition in the circuit court of Massac county praying a writ of mandamus to require appellee, the Chicago & Eastern Illinois Railroad Company, to remove certain obstructions placed in the channel of Post creek, in Pulaski county, in order to permit the use of said creek for drainage purposes. The petition, as amended, recited that Cache River drainage district was organized in May, 1911, and embraced lands in Massac, Pulaski, Union, Johnson, and Pope counties, in all about 68,000 acres in the Cache river basin, which extends about 30 miles east and west and is from 3/4 to 7 1/2 miles in width; that the land embraced in this district is swampy and overflowed and largely covered with sloughs, ponds, swamps, and stagnant water; that the soil is all black loam and is very productive when drained. The petition recites that Cache river affords the only outlet for the water in said basin; that said river enters this basin in Johnson county and runs in a tortuous, crooked course, with a slow, sluggish current, for more than 55 miles through this basin and empties into the Ohio river near Mound City, in Pulaski county. The petition further recites the drainage of this basin is of public importance and benefit both as an agricultural and sanitary measure; that commissioners appointed by the Governor pursuant to an act of the Legislature of May 16, 1903, reported the feasibility of draining the said basin by dredging and straightening the channel of Cache river; and that said commissioners reported such plan practicable by diverting the waters of Cache river into Post creek, a tributary of Cache river, in Massac county, and thence, by excavations from the headwaters of Post creek, into the Ohio river. The petition states that because of the report of said commissioners, and soon thereafter, the district was organized; that the main ditch proposed is to be 40 feet wide at the bottom and is to deflect the water from Cache river into Post creek at a point in Pulaski county, running said water up said Post creek to its headwaters, where by a deep excavation an outlet of about one-half mile in length is afforded into the Ohio river; and that by this means a new bed for the waters of Cache river is afforded, running nearly on a straight line to the Ohio river; that Post creek is a natural water course, with a deep, well-defined channel, and is a tributary of Cache river. The petition further states that the appellee has constructed across said Post creek, in Pulaski county, a bridge 280 feet long, supported by piling, thereby obstructing the channel of said stream and leaving a very small passageway for the water; that said obstructions prevent the flow of water intended to be carried by said ditch to its outlet into the Ohio river, and further prevent the dredge boat of, or in the employ of, appellants from passing under said bridge or trestle. Appellants aver it is the duty of appellee to remove the obstructions and restore the channel to its original condition. To the petition is attached, with proof of service upon appellee, notice of the commissioners' intent to use Post creek for drainage purposes, with a request that appellee remove the obstructions before described and to increase the bridge span at this point to 98 feet, without any piling, posts, pillars, abutments, or other obstructions to the flow of the water therein. The prayer of the petition is that a writ of mandamus issue directing appellee to remove the obstructions and increase the span length of the bridge, and for further relief. Appellee filed a general and special demurrer, claiming the relief sought by the petition was in contravention of the fourteenth amendment to the Constitution of the United States and of section 2 of article 11 of the Constitution of the state of Illinois; that it is not alleged in the petition the burdens imposed upon appellee are not increased by the reversal of the flow and diversion of the water from Cache river through Post creek; that said petition shows the present bridge opening is in excess of the requirements of petitioners; that the petition fails to show the natural channel if Post creek is in any wise obstructed so as to prevent the passage of the natural flow of said stream. The demurrer was sustained in the trial court, and the record is brought to this court by appeal.

[1] Appellants' principal contentions are that the Cache River drainage district is organized under and derives its powers from an act entitled ‘An act to provide for the construction, reparation and protection of drains, ditches and levees, across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organizationof drainage districts' (Hurds Stat. 1911, p. 872); that when appellee erected its bridge across Post creek it did so with notice that its right to cross said natural water course was burdened with the right of the public to an easement in said water course for all time to come; that under the statute, as well as the common law, it is made the duty of a railroad crossing a natural water course at its own expense to so construct and maintain its crossing or bridge as not only to serve the present but future demands for the flow of water through such water course; also, that appellants are invested with the right to exercise the police power of the state, and that the taking or damaging of private property in the exercise of that power without making just compensation does not violate any constitutional right of the owner, because all private property is held subject to such regulation under the police power of the state, as the public safety or welfare demands.

The Cache River drainage district was organized under what is known as the Levee Act as distinguished from the Farm Drainage Act. Chicago, Burlington & Quincy Ry. Co. v. People, 212 Ill. 103, 72 N. E. 219, and 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175, much relied upon by appellants, involved the provision of the Farm Drainage act respecting bridges, which is section 40 1/2 of that act. That section is not the same as section 56 of the Levee Act upon the same subject. But aside from that fact, the decision does not sustain the appellants' right to the relief sought in this case. That case was a petition filed by the drainage commissioners for a writ of mandamus to require the railroad company to construct, enlarge, deepen, and widen a natural water course crossed by the railroad, and also for the construction of a railroad bridge across such widened water course. The petition was held good on demurrer, and the...