Templeton v. Huss

Decision Date29 March 1974
Docket NumberNo. 45758,45758
Citation311 N.E.2d 141,57 Ill.2d 134
PartiesBertram F. TEMPLETON, Appellant, v. Jack C. HUSS et al., Appellees.
CourtIllinois Supreme Court

Phillips, Phebus, Tummelson & Bryan, Urbana (Enos L. Phillips, Darius E. Phebus, Joseph W. Phebus, and E. Phillips Knox, Urbana, of counsel), for appellant.

Webber, Welsh & Kehart, and Jokisch & Patton, Decatur (Richard J. Welsh, Edwin W. Jokisch, Jr., and Jerry L. Patton, Decatur, of counsel), for appellees.

Adler, Anderson & Merker, Bloomington (Jerry W. Quick, Bloomington, of counsel), for amicus curiae Illinois Agricultural Association.

Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, Springfield (James P. Baker, Springfield, of counsel), for amicus curiae The Homebuilders Association of Illinois.

SCHAEFER, Justice:

Bertram F. Templeton, since 1931 the owner of farm land situated southwest of the village of Oreana in Macon County, brought an action in 1964 against Jack C. Huss, Adair D. Huss, John M. Oldweiler and Eugenia J. Oldweiler, the owners of an adjoining parcel of farm land which they were then in the process of subdividing for single-family detached housing. The original complaint alleged that these defendants 'in subdividing their said real estate, have, by artificial means, changed the surface drainage of their said lands in such a manner that surface waters now flow from the Defendants' lands onto the Plaintiff's land at a place other than the place or places at which such waters flowed onto the Plaintiff's land in a state of nature and other than in the general course of natural drainage,' and the defendants 'have, by artificial means, changed the surface drainage of their said lands in such a manner as to bring waters from another watershed into the natural watershed in which the Plaintiff's land is located and (to cast) those waters upon the Plaintiff's land.' The complaint prayed for injunctive and other relief.

The defendants denied these allegations. In 1967 the complaint was amended by adding count II, which named the village of Oreana, a municipal corporation, as a defendant, and alleged that the village approved three plats within the land owned by the original defendants, that 'the Defendant subdividers did dedicate the streets and catch basins to the public for use as public highways and for water mains, sewers, and public utilities,' that 'the streets and catch basins constructed to date in the additions to the Village of Oreana as described above are now and have been since construction thereof conduits for carrying the diverted surface waters' described above, and that the village now had both title and responsibility for the streets and catch basins.

In 1971, plaintiff filed an amended complaint which added the counts that are involved on this appeal. Count III alleged that the defendants, by converting their parcel of farm land into a residential subdivision, had increased both the amount and the rate of surface-water runoff flowing onto the plaintiff's land. Count IV alleged that the village of Oreana, in approving the plats for the subdivision and accepting dedication of the streets, 'knew or should have known that the alterations of the course of nature made by said defendant-subdividers would cause water to flow onto plaintiff's land in a greater amount than would normally flow thereon in the course of nature,' and prayed for injunctive and other relief against the village.

The amended complaint also contained additional counts relating to alleged damage to a private drainage tile servicing part of plaintiff's land, and to alleged increase in surface-water runoff and introduction of improperly treated sewage attributable to installation of septic tanks on defendants' land and failure to provide a proper means of disposition for sewage. These additional counts, as later amended, were ultimately dismissed by the trial court for want of proof. Prior to trial the court dismissed counts III and IV for want of an allegation that the water 'was directed from its natural source or outlet or flowed other than in the general course of natural drainage.' The plaintiff elected to stand on counts III and IV, and the case proceeded to trial before the court on the others. At the conclusion of the trial, the court found that there was no diversion from another watershed, and for that reason entered judgment for the defendants. The appellate court affirmed (9 Ill.App.3d 828, 292 N.E.2d 530), and we allowed leave to appeal.

In this court the plaintiff challenges only the ruling of the trial court dismissing counts III and IV. The legal question presented is whether the liability of the owner or occupier of a dominant, or higher, estate for damage inflicted upon the servient, or lower, estate by increased surface-water runoff is limited to that caused by diversion from another watershed. This entire area of the law has been characterized by the gradual modification of two 'rules,' which in their simplest form seem precisely opposed, into working principles that lie in the middle ground between the two polar extremes. The two rules were described this way in Kinyon & McClure, Interferences with Surface Waters, 24 Minn.L.Rev. 891 (1940): 'In substance, the civil law rule of surface waters is that a person who interferes with the Natural flow of surface waters so as to cause an invasion of another's interests in the use and enjoyment of his land is subject to liability to the other.' (24 Minn.L.Rev. at 893.) 'The 'common enemy' * * * rule of surface waters is, in substance, that a possessor of land has an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm which he may thereby cause to others.' 24 Minn.L.Rev. at 898.

In general, the Illinois cases may be said to have followed a modified version of the civil law rule. An early case, Stout v. McAdams (1839), 3 Ill. (2 Scam.) 67, 69, involving riparian rights, suggested the following as a governing principle: '* * * and although the act of the one person may be in itself lawful, yet, if in its consequences it necessarily damages the property of another, the party occasioning the damage is liable to make reparation commensurate to the injury he has caused.' That thought persisted in Gillham v. Madison County R.R. Co. (1869), 49 Ill. 484, said to be the first Illinois case announcing the civil law rule. (Ratcliff, Private Rights Under Illinois Drainage Law, 1960 U.Ill.L.F. 198, 201.) The question squarely raised in Gillham was: '(H)as the owner of a servient heritage a right, by embankments or other artificial means, to stop the natural flow of the surface water from the dominant heritage, and thus throw it back upon...

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    ... ... Romley, 64 Cal.2d 396, 50 Cal.Rptr. 273, 412 P.2d 529, 536-37 (1966); Templeton v. Huss, 57 Ill.2d 134, 311 N.E.2d 141, 146 (1974); Burgess v. Salmon River Canal Co., 119 Idaho 299, 306, 805 P.2d 1223, 1230 (1991); O'Tool v ... ...
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