Suehr v. Sanitary Dist. of Chicago

• Decision Date: 22 December 1909
• Citation: 90 N.E. 197,242 Ill. 496
• Parties: SUEHR v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

242 Ill. 496

90 N.E. 197

SUEHR

v.SANITARY DIST. OF CHICAGO.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by Julius Suehr against the Sanitary District of Chicago. From a judgment for plaintiff, defendant appeals. Affirmed.

B. F. Lincoln (John C. Williams and Chipperfield & Chipperfield, of counsel), for appellant.

Butters & Armstrong and J. L. O'Donnell, for appellee.

HAND, J.

This was an action on the case, commenced by the appellee, Julius Suehr, against the appellant, the Sanitary District of Chicago, to recover damages for an injury to the real estate of the appellee, alleged to have been caused by the construction of the drainage canal of appellant, connecting the South branch of the Chicago river with the Desplaines river, and the flow of water from Lake Michigan, through said canal and the Desplaines river, into the Illinois river. The declaration contained three counts, and the general issue was filed. A trial resulted in a verdict and judgment in favor of the appellee for the sum of $4,000, which has been affirmed by the Appellate Court for the Second District, and a further appeal has been prosecuted to this court.

The facts in proof are as follows: The appellee is the owner of an island, containing about 15 acres, situated in the illinois river near the city of Ottawa, which he purchased in the year 1897. The soil of the island was from 8 to 14 feet in depth, and consisted of a sandy loam, and was well suited to the growing thereon of asparagus, and a considerable portion of the island, at a very large expense, had been planted by appellee to asparagus, after its purchase by him, and prior to the time the water was turned into the drainage canal by the appellant, on the 17th day of January, 1900, and the depth of water in the Illinois river was greatly increased by the flow from Lake Michigan, through the drainage canal, to the Desplaines river, the result of which was the ford across the north channel connecting the island with the main land was destroyed, and part of the island was washed away, including the timber along its edges, its arable lands were largely submerged, and its uses for agricultural purposes were largely destroyed.

The court admitted proof of the effect of the increased flow of water upon the island up to the time of the trial, and the admission of this class of proof is the main question discussed in the brief of appellant. The drainage canal is a permanent structure, and the appellee has the right in this case to recover all damages, past, present, and future, which his real estate had sustained by reason of the construction of that improvement (Chicago & Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203, 8 N. E. 460,59 Am. St. Rep. 341;Springer v. City of Chicago, 135 Ill. 552, 26 N. E. 514,12 L. R. A. 609;Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, 31 N. E. 138,33 Am. St. Rep. 273;City of Centralia v. Wright, 156 Ill. 561, 41 N. E. 217;Galt v. Chicago & Northwestern Railway Co., 157 Ill. 125, 41 N. E. 643;Hyde Park Light Co. v. Porter, 167 Ill. 276, 47 N. E. 206); and it is the settled law of this state that it was proper to prove the effect of the increased flow of water upon said island down to the time of the trial (Springer v. City of Chicago, supra; Penn Mutual Life Ins. Co. v. Heiss, supra; City of Centralia v. Wright, supra).

In the Springer Case, which was an action to recover damages alleged to have been caused to the property of appellant by the construction of the Jackson street bridge and viaduct, the court, on page 560 of 135 Ill., and page 514 of 26 N. E. (12 L. R. A. 609), said: ‘Evidence of the condition of the property at the time of the trial was competent, and the parties had the right to show the value of the property at the time of the trial, as such evidence would have a bearing on the value of the property before and after the alleged damage.’

In the Heiss Case, on page 67 of 141 Ill, and page 141 of 31 N. E. (33 Am. St. Rep. 273), the court said: ‘As we have seen, the right of action accrued upon the happening of the injury, occasioned by the completion of the road, to recover not only present, but prospective, damages. It by no means follows that, because the right of action then accrued, it must then be enforced. The action may, under the statute, be brought at any time within five years from the...