The Jacksonville v. Cox
| Decision Date | 31 January 1879 |
| Citation | 91 Ill. 500,1879 WL 8434 |
| Parties | THE JACKSONVILLE, NORTHWESTERN AND SOUTHEASTERN RAILROAD COMPANYv.JOHN COX. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Sangamon county, the Hon. CHARLES S. ZANE, Judge, presiding.
Messrs. DUMMER, BROWN & RUSSELL, and Messrs. PATTON & LANPHIER, for the appellant.
Messrs. BRADLEY & BRADLEY, for the appellee.
In the fall of 1871, appellant constructed its railroad track from Jacksonville to Virden, running through the farm of appellee. In February, 1876, appellee brought suit in the Sangamon circuit court, alleging damages by reason of the loss of rents and profits for the years 1872, 1873, 1874 and 1875, occasioned by the wrongful and negligent manner in which appellant had constructed its road, whereby his farm had been flooded. A trial before a jury, at the February term, 1877, of the court, resulted in a verdict and judgment in favor of appellee for $400.
We think the evidence sufficiently sustains the verdict. There was some conflict in the testimony, but this conflict was settled by the jury in favor of appellee. One Watson entered the eighty acres of land in question in 1840, and commenced improving it, and sold it in 1857. The land has ever since been in cultivation. It was purchased by appellee about 1867, and he has continued to live there until now, with his family, farming. He appears to have made good crops until after the building of the railroad of appellant. The land was originally low and wet, and it has continued to be troubled with water, to some extent, in wet seasons or after hard rains. The surface of the ground had been raised, however, by many years of cultivation; and the water that fell on the land, or ran on to it from adjoining premises, escaped to the southwest through a small ditch that had been plowed there, and there was also a drainage from part of the land to the north. The premises had become, to say the very least, reasonably good tillable land.
The railroad embankment was constructed through the north forty acre tract of the farm, from south-east to north-west, and a ditch was dug by the railroad company on the south side of the railroad, extending from the farm a considerable distance to the south-east. The lands, for a mile or more to the south-east of appellee's premises, fell off to the north, and the water from these lands, lying south of the railroad, drained, before the building of the railroad, off to the north into Devore's branch. By the construction of the embankment and excavation of the ditch this water was cut off from its natural course to the north, and was turned west to the premises of appellee. The natural drainage and the ditch that had been plowed by appellee were wholly insufficient to carry off the accumulated surface water that was precipitated by the railroad embankment and ditch upon his lands. The consequence was he lost the crops on some twenty-five or thirty-five acres of his land, in the years 1873, 1874 and 1875. These were, it is true, wet years; yet the evidence shows it was principally the additional surface water turned on the land by the company that flooded it and destroyed the crops, and that without this surplus water appellee could, with the means of drainage he theretofore had, have cultivated, even in those years, all or the most of his farm.
The railroad company had no right to stop, by its embankment, the natural and customary flow of the water from the high grounds south of the railroad to the north and thence into Devore's branch, and by its ditch on the south side of the road to carry this water on to the premises of appellee, without providing some sufficient outlet for it to pass off. When it undertook to divert and change the usual and customary flow of the water, it was bound to provide sufficient means to carry it away from the farm of appellee, upon which it had caused it to accumulate. By conducting this surface water, which otherwise would have gone elsewhere, on to the farm, it virtually entered upon the farm and deprived the owner of the profits which he otherwise would have derived from its cultivation. Even if his farm was on low ground and in a depression, that did not license the company to increase the difficulties to...
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