Thornton v. Roll

• Decision Date: 09 September 1886
• Citation: 118 Ill. 350,8 N.E. 145
• Parties: THORNTON v. ROLL and others.
• Court: Illinois Supreme Court

118 Ill. 350

8 N.E. 145

THORNTON

v.ROLL and others.

Supreme Court of Illinois.

September 9, 1886.

Appeal from appellate court, Third district.

This is a bill in equity by William W. Thornton against William Roll, James Stewardson, and others. The complainant alleges that he is the owner in fee-simple of that portion of the E. 1/2 of the S. W. 1/4 of the S. W. 1/4 of section 8, and of the E. 1/2 of the S. W. 1/4, and the S. E. 1/4, of said section 8, in township 11 N., range 4 E. of the third P. M., in said county, lying north of the main public road, running east from the city of Shelbyville, through and along the south line of said land and across the Kaskaskia river; that the said river is a private stream, running through the said land; that William Roll, James Stewardson, and William Henry, Jr., are, and have been since the ___ day of May, 1883, the commissioners of highways of the town of Shelbyville, in the county of Shelby and state of Illinois; that the said real estate and the said road are in the said town of Shelbyville; that about 60 acres of said land lying north and west of said river, and north of the line of said road, consists of tillable bottom lands, and is worth $50 per acre; that in the year 1877 the said road was built where it now is by the three commissioners of highways of said town, and an embankment of the height of about 20 feet was by them constructed along the line of said road from the foot of what is known as the ‘Thornton Bluff,’ across said bottom land, for a distance of about 150 yards, to the said river, and forming the western approach to the public bridge over said river; that at the same time a similar approach was constructed from the east end of said bridge to the high ground on the east of said river; that said river has well-defined banks, within which the stream is usually confined; that once or twice each year said stream overflows its ordinary banks, and the water covers the lowlands above mentioned, as has always been the case during times of very high water both before and since the construction of said embankments or bridge approaches.

The complainant further shows that the said William Roll, James Stewardson, and William Henry, Jr., commissioners of highways, as aforesaid, threaten and are about to take away a portion of said embankment or bridge approach, about 100 yards west of said river bridge, and to construct, at said point, a bridge of about 45 feet in length, with an open space or water-way of 45 feet in width, underneath the same; that the said commissioners of highways, Roll, Stewardson, and Henry, on or about the second day of August, 1883, published and posted up certain notices, in which they advertised that they would, on the thirteenth day of August, 1883, receive bids for the excavation of the earth for the said bridge, which they termed the ‘Slough Bridge,’ and for stone abutments for the said bridge, and also for foundation timbers for said abutments, and also for widening the said bridge approach, and in which they advertised that the said several pieces of work would be let by contract to the lowest responsible bidder, and in which they also advertised that the earth necessary for the widening of said embankment should be taken from the said Thornton bluff, a portion of the said land of the complainant.

The complainant further shows that thereafter the said commissioners received bids for the said several pieces of work; that on the twenty-second day of August, 1883, the said Roll, Stewardson, and Henry, as such commissioners, entered into a contract with one James Miller for the erection of the said stone abutments for said bridge, and also into a contract with one Jerry Sullivan for the excavation of said embankment for said bridge, and for the widening of the said embankment or bridge approach to the width of 20 feet at the top of the grade.

The complainant further shows that the said James Miller and Jerry Sullivan are each about to begin the work so contracted for by them; that, in the prosecution of the said work, the said contractors are about to enter upon the land of the complainant; that the said Jerry Sullivan intends and is about to excavate from the said Thornton bluff, belonging to the complainant, large quantities of earth for the purpose of widening said embankment; that the proposed widening of said embankment, if carried out, will cause the taking of a strip of the complainant's said land of the width of about four feet, and of the length of about four hundred feet; that the extreme limit of said road extends no further on the complainant's land than the present limit of said embankment at the bottom; that neither the said commissioners, nor the said James Miller, nor the said Jerry Sullivan, have received any authority or permission from the complainant to enter upon the complainant's said land, nor to excavate earth from the said Thornton bluff, nor in any way to take or damage any of complainant's said land; that the said commissioners have not, by legal proceedings or otherwise, acquired any right to take or damage the complainant's said land. The complainant further shows that in case the said excavation in said embankment is made, and the said slough bridge constructed, large quantities of water from said river, during every period of high water, once or twice during each year, will be carried over the complainant's land; that a channel will be formed across said land, and through said slough bridge; that large quantities of the soil of said land, which is a light alluvial soil, and easily washed, will be washed away; that each year the channel will grow deeper, and the said washing away of the soil will increase; that large quantities of drifting trees and wood will be carried, by reason of said current, over and upon said lands, and when such high waters subside said drift will be lodged upon said land, and, by reason of said continuous washings and driftings of wood and trees, a large portion of said lowlands, to-wit, about 40 acres, will be rendered totally unfit for cultivation, and useless to the complainant. And the complainant further says that, at present and naturally, all of said waters and said drift pass along the current and accustomed channel of said river, under said river bridge, and without damage to the complainant's land. The complainant further says that the building of said slough bridge is not a work of public necessity, and will result in irreparable and ever-continuing and recurring injury to the complainant's said land.

Roll, Stevenson, Henry, Miller, and Sullivan are made defendants, and required to answer without oath; and it is prayed that said defendants, and each and every one of them, and their attorneys, solicitors, agents, and servants, may be restrained by an injunction, issuing out of this court, from proceeding in any way in the construction of the slough bridge, and in the widening of the said embankment, as aforesaid, and in the excavation of the said embankment for the said slough bridge, as aforesaid, and from trespassing upon, and in any way interfering with, or taking or damaging, the complainant's said land; and that the complainant may have such other, further, and different relief as equity may require. There was also a prayer for a temporary injunction. A temporary injunction was issued upon the filing of the bill.

Afterwards, Roll, Stevenson, and Henry answered as follows:

‘Defendants, for answer, say that they have no knowledge as to the title of complainant to the lands in bill described, and require proof of such title; but they deny, as they are informed and believe, that he is the owner of any land contiguous to said public road west of said Kaskaskia river, as alleged in said bill. They admit they are the highway commissioners of said town. They admit that about sixty acres of the land mentioned are in the bottom of said river, and, if said bottom did not overflow so often, that the same would be good tillable land; but deny that the same is worth fifty dollars per acre, or near such sum. They deny that said road and embankment were made and constructed by the highway commissioners in 1877. They were in that year partially repaired, and the embankments made higher and wider. They deny that in that year an embankment was constructed from Thornton bluff, on the line of said road, to said river, but aver it was only repaired that year.

‘For further answer defendants say, as they are informed and believe and so charge, that for full thirty years last past, except the last five years, there was a bridge across the said bottom, between the west end of the river bridge and the bluff, where said roadway now is, used by the traveling public, and repaired by the public authorities from about the year 1850 until in 1878; that in the year 1858 said roadway and embankment, at the same place they now are, were repaired, and a slough bridge, as a part of the same roadway west of said river, was constructed by order of the county commissioners' court of said county, and from that time said embankment and slough bridge were used by the public as a highway, and were repaired by the public authorities continuously until 1878. In 1878 the said slough bridge was removed, and the place filled with earth, and, at the time, the complainant was one of the highway commissioners of said town. Defendants aver that there is no order of said highway commissioners authorizing the removal of said bridge, and that the complainant was clerk of said board at the time, and made the contract marked ‘D,’ and made a part of this bill. Defendants, further answering, say it is true said river, at a low stage of water, has banks there visible; and they aver that said bottom is overflowed three or four times in each year, so as to prevent the same from being either tillable or pasture land; and they further aver that the overflow of said bottom land is as frequent...