Toledo v. Hunter

• Decision Date: 31 January 1869
• Citation: 50 Ill. 325,1869 WL 5229
• Parties: TOLEDO, WABASH & WESTERN RAILWAY COMPANYv.JOHN B. HUNTER et al.
• Court: Illinois Supreme Court

50 Ill. 325

1869 WL 5229 (Ill.)

TOLEDO, WABASH & WESTERN RAILWAY COMPANY

v.JOHN B. HUNTER et al.

Supreme Court of Illinois.

January Term, 1869.

APPEAL from the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, presiding.

This was an action on the case, by Hunter and McNeil, against the Toledo, Wabash & Western Railway Company, to recover damages arising from injury to a lot of cattle, caused by the waters of the Sangamon river overflowing the ground, occupied by the plaintiffs, in a time of flood, such overflowing being the result, as is alleged, of the filling up by the railroad company, of an open trestle work in an embankment of their road across the bottom land bordering upon the river. The declaration contained six counts, the last of which sets forth substantially, the alleged cause of action. The 6th count states:

“That the plaintiffs, on the 25th day of November, 1866, and from thence hitherto, were the owners of 1,500 head of cattle, which they were feeding and fattening in stables and upon lands in the lawful possession of said plaintiffs, near the Sangamon river, and the said plaintiffs, so being in the lawful possession of said stables and lands, and the owners of said cattle, the said defendants negligently, willfully and wrongfully, filled and totally obstructed a certain opening in the embankment raised by the defendants across the bottom land of the Sangamon river, said opening being a space through which a portion of the water of the Sangamon river had of right passed before the total obstruction of the same, and through which the water of right should pass in case of freshets in said river, said opening being a reasonable, necessary and practicable opening and passage way for the water of said river in times of freshets. And on the 17th day of February, 1867, a freshet existing in said river, the water thereof flowed over said lands, and into the said stables of the plaintiffs, and among and upon said cattle, in consequence of said embankment being filled up and obstructed, and the said stables and the said cattle were injured,” &c.

The general issue was pleaded, and upon the trial much testimony was taken, which it is not necessary to consider. The jury returned a verdict in favor of the plaintiff, assessing his damages at $6,500, and judgment was rendered thereon. The defendants thereupon took this appeal.

Messrs. PALMER & HAY, for the appellants.

The cases cited in Redfield on Railways, 156, state and establish the true rule applicable to this case: “In the absence of statutory provisions upon the subject, railways are not liable for necessary consequential damages to land owners, no portion of whose land is taken, when they construct and operate their roads in a skillful and prudent manner.”

But if the evidence does not establish that the plaintiffs had no interest, possessory or otherwise, in the stables, it does prove that they had no interest until the 10th of November, 1866, long after the “wrongful acts” complained of were done. The case of Ill. Central R. R. Co. v. Allen, 39 Ill. 205, is in point.

Messrs. HERNDON, MATHENY & ZANE, for the appellees.

The Sangamon river being a natural water course, the defendants in error had the right to occupy the land upon its borders with their stable and cattle, with reference to the river as it was regulated and controlled by natural laws; and the plaintiffs, by interfering with the natural flow thereof, and by throwing the water into the stables, became liable for all damages in consequence thereof. Stout v. McAdams, 2 Scam. 68-9; Fletcher v. The Auburn & Syracuse R. R. Co. 25 Wend. 464; Boughton v. Case, 18 Johns. 405; Bellinger v. The N. Y. Cent. R. R., N. Y. R. (...