Vail v. Mix

• Decision Date: 30 September 1874
• Citation: 1874 WL 9090,74 Ill. 127
• Parties: ALGERNON S. VAIL et al.v.JAMES MIX et al.
• Court: Illinois Supreme Court

74 Ill. 127

1874 WL 9090 (Ill.)

ALGERNON S. VAIL et al.

v.JAMES MIX et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kankakee county; the Hon. N. J. PILLSBURY, Judge, presiding.

Mr. C. R. STARR, and Mr. W. F. SINGLETON, for the appellants.

Mr. S. R. MOORE, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill for an injunction, brought by Algernon S. Vail, Alfred Brown, David Lynds, and Enos Van Kirk, on the 26th day of June, 1874, in the Kankakee county circuit court, to restrain appellees from repairing the mill dam across the Kankakee river, at Momence, in Kankakee county. Upon the hearing of a motion to dissolve the temporary injunction which had been granted, upon bill, and answers, and affidavits filed therewith, the court below dissolved the injunction and dismissed the bill.

Three of the complainants, Vail, Brown and Lynds, take this appeal to reverse the decree. The leading facts are as follows:

This mill power was established where it is now situated, prior to the year 1842. At the point where the dam is situated, there is an island in the river, which divides the river into two branches, known as the north branch and the south branch. Prior to 1842, a dam was built across the north branch, and this dam made power sufficient to run the mill until 1849, and run both a grist mill and a saw mill. This dam is maintained near the centre of the island, and no question is made concerning it. In 1849, the erection of the dam in question was commenced across the south branch, at the head of the island, about eighty rods above the dam across the north branch, and was finished in the spring of 1850.

These dams have been maintained permanently, and continuously up to the present time, excepting occasional breaks which were immediately repaired. In March, 1874, a portion of this dam, on the south branch, at the head of the island, went out. An undivided two-thirds part of this water power and mill privilege was purchased by George W. Cass, in 1870, which he now owns. He does not wish to have the dam repaired, being largely interested in lands above the dam affected by overflow. The owner of the remaining one-third interest was about to proceed in the work of repairing the dam, when this bill was filed and the temporary injunction obtained.

The bill alleges that the repair of the dam will cause the several lands of the complainants to be overflowed with water and damaged: those of Vail to the amount of $3,500; those of Brown, $1,800; those of Lynds, $4,000; those of Van Kirk, $5,000; that they never consented to the building of the dam; that their damages have never been assessed, or released by them; that the owner of the said undivided one-third interest is insolvent; that he threatens to enlarge and increase the dam for the production of increased water power; and the bill further charges that the health of the neighborhood will be injuriously affected by the repair of the dam, and prays that the defendants may be enjoined until they shall first have had a jury empannelled to assess the damages of complainants, and until the jury so empannelled shall find that the erection of the dam will not affect injuriously the health of the neighborhood. The bill is filed in behalf of the complainants, and all others in like situation who shall come in and contribute to the expenses of the suit.

There is no proof of the allegation in the bill of the insolvency of the defendant, who was about to proceed and make the repair, but proof to the contrary. The charge of any intention to enlarge and increase the height of the dam is entirely disproved by the evidence. The proof shows the break in this dam to be about thirty feet; that the length of the dam is from two hundred and fifty to three hundred feet; that it is important for the safety of the remaining portion of the dam that the repairs be speedily made; that delay will endanger the carrying away and destruction of the entire dam, and that to rebuild it would involve an expense of from two to four thousand dollars, so that to stay the work of repairing this dam until the time prayed for would be to expose the owner of the mill property to the hazard of a large pecuniary loss.

The proofs make out a case of large damages to a great number of persons as likely to result from the overflowing of lands, to be caused by the erection of this dam, and much more so to other persons than the complainants; but none others...