Tearney v. Smith

• Decision Date: 30 September 1877
• Citation: 1877 WL 9740,86 Ill. 391
• Parties: MICHAEL TEARNEY et al.v.CHARLES C. SMITH.
• Court: Illinois Supreme Court

86 Ill. 391

1877 WL 9740 (Ill.)

MICHAEL TEARNEY et al.

v.CHARLES C. SMITH.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Will County; the Hon. JOSIAH MCROBERTS, Judge, presiding. This was an action on the case, by Charles C. Smith against Michael Tearney, Peter Corbin, and Dennis Scanlan, who were commissioners of highways. The declaration, omitting the formal parts, charged as follows:

“For that whereas the said plaintiff, heretofore and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto has been, and still is, lawfully possessed of certain lands and premises, with the appurtenances, situate in the county aforesaid, which said land and premises the said plaintiff, before and at the time as aforesaid, used and enjoyed, and of right ought to have used and enjoyed, and still of right ought to use and enjoy, to wit, in,” etc.; “nevertheless the said defendants, acting at the time aforesaid, and long before and hitherto have acted and still act, as commissioners of highways of the township of Wilmington in the county aforesaid, having the care and superintendence of the highways and bridges therein, contriving and unjustly intending to injure, prejudice and aggrieve the said plaintiff in the possession, use, occupation and enjoyment of his said lands and premises, and to render the same incommodious and unfit for tillage, and of little or no use or value to the said plaintiff, whilst the said plaintiff was so possessed thereof and so used and enjoyed the same as aforesaid, to wit, on the day and year aforesaid and in,” etc., “wrongfully and unjustly cut, dug, and made, and caused and procured to be cut, dug, and made, a certain ditch, drain, trench, and channel, and wrongfully and unjustly built thereupon, made, and erected, and caused and procured to be built thereupon, made, and erected, a certain grade, embankment and repair near to the said lands and premises of the said plaintiff in so careless, negligent, and improper a manner, and kept and continued the said ditch, drain, trench, and channel, and the said grade, embankment, and repair, for a long space of time, to wit, from thence hitherto, that by reason thereof afterwards, to wit, on the day and year aforesaid and on divers other times afterwards, and before the commencement of this suit, divers large quantities of rain water, and surface water, and standing water ran and flowed from the said ditch, drain, trench, and channel, and from and along the said grade, embankment, and repair, down to, upon, and against, and into the said lands and premises of the said plaintiff, and walls, banks, ditches, fences, soil, and other parts thereof and therein being, and thereby greatly injured and damaged the said lands and premises of the said plaintiff, and the said fences, walls, banks, ditches, soil, and other parts thereof, and by reason of the premises the said lands and premises of the said plaintiff became and were and are wet, swampy, and less fit for use, occupation, and cultivation; and also, by reason of the premises, the rain water, surface water, and standing water aforesaid ran and flowed in a different direction or channel, and with much greater force and increased violence and impetuosity than it of right ought to have and otherwise would have done, unto and against the lands and premises of the said plaintiff, and the fences, banks, walls, soil, and other parts thereof as aforesaid, and undermined, washed away, damaged, and destroyed the said lands and premises of the said plaintiff, and the...