Sullivan v. Bagby

• Citation: 335 Ill. 192,166 N.E. 449
• Decision Date: 07 June 1929
• Docket Number: No. 19422.,19422.
• Parties: SULLIVAN v. BAGBY.
• Court: Supreme Court of Illinois

335 Ill. 192
166 N.E. 449

SULLIVAN
v.
BAGBY.

No. 19422.

Supreme Court of Illinois.

April 20, 1929.
Rehearing Denied June 7, 1929.

Suit by Timothy Sullivan against Jesse B. Bagby. Decree for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

[335 Ill. 193]Appeal from Circuit Court, McDonough County; Willis F. graham, judge.
Philip E. Elting, of Macomb, and Charles J. Scofield and Earl N. Bell, both of Carthage, for appellant.

Gumbart & Grigsby, of Macomb, for appellee.

STONE, J.

Appellant filed a bill in the circuit court of McDonough county seeking a mandatory injunction requiring appellee to replace a certain tile drain taken out by him. This drain had been for many years in a natural water course. The chancellor denied the relief prayed, on the ground that appellant had not sought to do equity.

The facts show a quarrel between the parties over a small farm drain, and never should have reached the courts. The parties own adjoining farms in McDonough county. Appellant's farm lies directly north of and adjacent to the land of appellee, and is separated therefrom by a fence extending east and west. A water course extends from a point on appellee's land a short distance from the boundary in a northwesterly direction across appellee's land, and crosses the land of appellant for a distance of about 100 feet, where it drops into an open ravine. During the year 1889 or 1890 the then owner of the tract of land now owned by appellee, with the consent and agreement of [335 Ill. 194]the then owners of the land now owned by appellant over which the water course extends, laid a five-inch tile drain from a point on appellee's land to the ravine on the land of appellant. The bill alleges that the prior owner of appellee's land constructed this tile drain by mutual consent, agreement, or license of the several owners of both tracts for their mutual benefit and the mutual benefit of their lands. The bill further alleges that, from the time of the construction of the tile drain, the respective lands over which it was laid, and the owners thereof, have enjoyed the mutual benefit of the tile drain, and each has a right to have it maintained and to have the water in that water course flowing upon the lands flow through the tile drain. On April 24, 1925, appellee took up about 100 feet of the tile on his own land just south of the division fence and re-laid it in the same water course, but so changed the elevation that it came to the surface of the ground at a point on his land about 4 feet south of the division fence, thus disconnecting it from the part of the drain on appellant's land and permitting the water to run over the surface and down the water course. Appellant charges that this was greatly to his damage, since the water runs over his wagon road next to the division fence, rendering it muddy and impassable; that this road is maintained by him and is his only means of crossing from the east to the west side of his farm because of the large ravine dividing it.

Appellee's answer to the bill admits, for the most part, the allegations made therein, but avers that he took up and re-laid the tile drain, disconnecting it from that portion on appellant's land, because appellant had suffered the drain...