The Chicago v. Hoag

• Decision Date: 30 September 1878
• Citation: 90 Ill. 339,1878 WL 10160
• Parties: THE CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.SMITH HOAG.
• Court: Illinois Supreme Court

90 Ill. 339

1878 WL 10160 (Ill.)

THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY

v.SMITH HOAG.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the City Court of the city of Elgin; the Hon. FRANK M. ANNIS, Judge, presiding.

This was an action against the Chicago and Northwestern Railway Company to recover damages for causing and permitting water to flow and escape from a water tank of the defendant, upon premises of the plaintiff. The plaintiff recovered a verdict and judgment for $325 damages, and the defendant appealed.

The general facts of the case are as follows:

The Chicago and Northwestern railway passes through Elgin on the west side of Fox river, in a northerly and southerly course, nearly parallel to, and about two blocks west of the river--the ground rising gradually from the river up to and beyond the road, so that at the place in question the road-bed, depot and water tank are some forty feet above the level of the stream.

The appellee is a contractor and builder residing at Elgin, and his lot on which his lumber was piled and buildings are erected abuts on and lies immediately east of the road. Appellee's lot is bounded on the north by South street. Just west of its main track the company has, with the consent of the city authorities, placed a platform entirely across South street, and that part of this street between the track and State street, the next street east, is impassable by teams, and not used by the public. Appellee's dry-house and a part of his lumber were on this portion of this street, which he thus used by consent of members of the city council, the chairman of the street committee among them.

The water tank, which is twenty-five to thirty feet west of appellee's lot, is located on the west side of the main track; it is in the upper part of a brick building some ten feet above the level of the track, and is supplied with water for engines from a spring on higher land about half a mile to the west. From this spring the water is conducted through underground pipes to a reservoir on the opposite side of the street west of the depot, and from the reservoir the water runs, in the same way, into the tank, which is fifteen or twenty feet above appellee's premises. Engines take water on the west side, and the surplus water runs out through a waste pipe on the east side of the track. In the summer, and often in the winter time, as appears from the testimony, but little water overflows, and that usually runs through a box or chute under the main track over the embankment some twelve or fifteen feet high, and falls on appellee's lot or into South street. During the cold weather of January, 1875, the water was permitted to escape in large quantities from this tank through the overflow pipe. This was done, as said by the depot agent of the company, to prevent the water from freezing up and bursting the pipes. This water continued to run in this way, at intervals, during the months of January and February, 1875. There was a ridge of ice between the main track and the east edge of the embankment, and this water would have frozen around the base of the tank or run off north into the street gutter and frozen there, had not the company's workmen cut a channel or ditch through this ridge and thus let the water run (but through the accustomed channels in which it had previously passed, according to testimony of appellant's witnesses) on to appellee's premises, where it spread out and froze forming a body of ice over appellee's premises and the adjoining part of South street varying from two to four feet in thickness. The suit respects the damages resulting from this formation of ice to lumber and material situated in the storehouse and in the carpenter shop of appellee, both being on the same lot, and to lumber in the dry-house of appellee, situate in South street, and to lumber piled in the street, and from inconvenience to business. On March 1, 1875, two of the company's men came out from Chicago, and by digging a hole, or as they call it a “cess-pool,” at the base of the water tank, provided an escape for the water through the gravel, where it has since run.

Mr. A. M. HERRINGTON, and Mr. B. C. COOK, for the appellant:

The injury complained of was not attributable alone to the act or omission of the defendant, but to the act of nature in causing the water flowing upon the plaintiff's premises from the tank, and of the surface water, to freeze, which was the proximate cause of the injury, and for which the defendant was not liable; citing Wharton on Negligence, 115, 939, Vedder v. Hildreth, 2 Wis. 427, City of Brooklyn v. Brooklyn City Railroad Co. 57 Barb. 497, The People v. Mayor of Albany, 5 Lan. 524, Finsmans v. Belvidere Del. Railroad Co. 2 Dutch. 148, and Railroad Co. v. Reeves, 10 Wall. 189. The following cases clearly establish the rule of damages in actions of this kind, and show that the plaintiff can only recover for injuries actually sustained before suit brought. Cobb et al. v. Smith et al. 38 Wis. 37; Blunt v. McCormack, 3 Denio, 283; Mahon v. New York Central Railroad Co. 24 N. Y. 658; Beckwith v. Griswold, 29 Barb. 291; Town of Troy v. Cheshire Railway, 3 Foster, 83; McKeyhon v. Lee, 4 Robertson, 450; Thayer v. Brooks, 17 Ohio, 489; Duncan v. Morkley, 1 Harper, 276.

We maintain that twenty years occupancy of the ground, and use of water in the way it was used, give the company the right to its use for that purpose. Buckland v. Truell, 54 N. H. 122; 2 Hunter, 633; Naffle v. Porter, 61 Barb. 130; Sweet v. Cutts, 50 N. H. 437; Earl v. Hart, 1 Beasly, 280; Vail v. Mix, 74 Ill. 127; City of Peoria v. Johnson, 56 Id. 45; Chicago, Rock Island and Peoria Railroad Co. v. Joliet, 79 Id. 27; Kimball v. Ladd, 22 Vt. 747.

Mr. JOHN W. RANSTEAD, for the appellee:

It is believed to be a correct proposition of law, that a wrong-doer is not only responsible for the first result of his wrongful act, but also for every successive result of that act, which could have been foreseen. Fent et al. v. Toledo, Peoria and Warsaw Railway Co. 59 Ill. 351; Atchison, Topeka and Santa Fe Railroad Co. v. Stanford, 12 Kan. 354; Weick v. Lander, 75 Ill. 93; Panton v. Norton, 18 Id. 496.

The maxim that every man shall so use his own as not to injure another's property, may be invoked, and applies with peculiar aptness and force to questions relating to the diversion and management of water. Year Books of 6 E. 4, fo. 7 Pl. 18--; Stone v. McAdams, 2 Scam. 69; Nevins v. City of Peoria, 41 Ill. 510; Railway lands v. Fletcher,L. R. 3, H. L. 320; Wilson v. New Bedford, 108 Mass. 261; Cahill v. Eastman, 18 Minn. 324.

Upon the point that the proximate cause of the injury was the act of God, or vis major, see, as showing what is the act of God and what is not, Chicago and Northwestern Railroad Co. v. Sawyer, 69 Ill. 289, Nugent v. Smith,L. R. 1, C. P. D. 482, (18 Am. Rep. 618, note.)

As to the injury caused to the plaintiff's lumber placed in the street by permission of the city authorities, the fact of possession of the street was relied on as justifying a right of recovery as to all damages done to the property by any one except the true owner. Moore v. Iman, 42 Ill. 150; Webb v. Sturtevant, 1 Scam. 181; Halligan v. Chicago and Rock Island Railroad Co. 15 Ill. 558; McCormick v. Huse, 66 Id. 315.

As to the prescriptive right claimed, the following authorities are cited: 2 Wash. Real Prop. 44, 442, (2 ed.); Warren v. Town of Jacksonville, 15 Ill. 241; Dimon v. People, 17 Id. 422; Daniels v. People, 21 Id. 440; City of Quincy v. Jones et al. 76 Id. 231.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

That considerable damage resulted to appellee from the freezing upon his premises of water which flowed thereon from the water tank of the company, is established by the proof. It appears, too, that the damage was sustained in consequence of the freezing and the detention thereby of the water; that but for that, the water would have flown down and off the premises without injury. It is thence claimed that the damage was not the proximate result of the defendant's act of turning the water upon the land, but of the freezing of the water, which was the act of God. But to claim exemption from liability for the consequences of such an act of nature, it must be such as could not have been foreseen and prevented by the exercise of any ordinary care and prudence. Nugent v. Smith, 17 Eng. Rep. 330, L. R. 1, C. P. D. 423; Panton v. Norton, 18 Ill. 496. Appellant must be held to have known that the water would freeze upon appellee's land at the time it was turned on it, it being a fact occurring in the course of nature, and be chargeable with the consequences resulting from the known action of frost in freezing water in combination with appellant's own act. The injury was one which might reasonably and naturally have been expected to result.

A point is made by appellant as to the ownership of the lot in question. It is described in the declaration as “lot 9 of block 31, etc., except such part thereof as is now owned and occupied by the said defendant for a right of way.” Neither party introduced any deed or other written evidence of title; and it is asserted that the ground upon which appellee's storehouse stood having been occupied by the railroad company for over twenty years preceding the building of the storehouse there by appellee--both parties claiming title by occupancy-- the railroad company by its embankment--the company must be held prima facie to be the owner thereof. The possession of the company would not extend, and be evidence of title, beyond its actual occupancy. The evidence shows, that about two years previous to the time of the damage complained of, appellee had removed this store-house from another place upon the lot to a place nearer the railroad embankment; that at one spot the embankment was dug out some three or four feet, and that this building was so placed that its southwest...