The City of Aurora v. Reed

• Decision Date: 30 September 1870
• Parties: THE CITY OF AURORAv.JACKSON REED et al.
• Court: Illinois Supreme Court

57 Ill. 29

1870 WL 6575 (Ill.)

11 Am.Rep. 1

THE CITY OF AURORA

v.JACKSON REED et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONY, Judge, presiding.

The opinion states the facts of the case.

Messrs. CANFIELD & NICHOLS, for the appellant.

Mr. C. J. METZNER, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought against the city of Aurora by appellees, to recover for damages caused by surface water, which ran from an adjoining street into and upon the premises of appellees. Their building was situated on River street, which runs north and south near the west bank of Fox River. The street is occupied for business purposes, and the buildings come to the line of the street on both sides. Before the buildings were erected, all the surface water from rain and snow, westward of this street, flowed to the river over these lots, much of it passing over the lot on which appellees' house is erected. There being a depression in the ground, inclining from the west towards the river, the erection of buildings on the west side of the street, which were from time to time built and filled the block, obstructed the natural flow of the water caused by rain and snow, and turned it into the cross streets running east and west, and leading into River street, thus largely increasing the volume that flowed along that street in front of appellees' premises.

It appears that in 1862, and while Dunning owned this lot, the property owners of the block entered into an arrangement with the city authorities, by which they were to put in a gutter in front of their property; Dunning afterwards refused to carry out the arrangement, but the others constructed the gutter under the direction of the street commissioner. Dunning sold this lot in 1864 or 1865, to Smith, the lessor of appellees, who erected thereon the building occupied by appellees. This building obstructed the flow of water over the lot, as it had previously run. Appellees kept in the house a grocery store and eating house, the basement being used as a dining room. On at least three occasions, when heavy rains had fallen, the water ran into the basement of appellees' building, to the depth of from one to three feet. It occasioned some damage to their property, the loss of the use of the room some days, required labor and expense in removing the water, and some of their boarders left. The jury found a verdict in their favor for $56.81. A motion for a new trial was entered, but overruled by the court, and judgment entered upon it, and the case is brought to this court by appeal, and a reversal is asked, on several grounds.

It is first insisted, that the court below erred in refusing to exclude the evidence, because of a variance between it and the declaration. The first and second counts aver that the city caused the street to be graded in so negligent and improper a manner “as to cause water from said street to run into said building.” In the third count, it is averred that the city graded the street in a negligent manner, and failed to construct sewers and drains, by reason whereof when it rained the water “was forced into and flowed into said building and basement,” so adjoining and abutting on the street. Thomson Reed testified, that no water came in under their side walk, but it came under the side walk in front of the lot next south of theirs, and struck the southwest corner of the building, and parted and went both ways; by which we understand that when it parted at the corner, a portion ran along the base of the building on the south side, and a part along the base in front; that this water entered the building both from the west and south sides.

It will be observed, that this water came from the street, and it is alleged that the...