Wheeler v. Sanitary Dist. of Chicago

• Decision Date: 10 December 1915
• Docket Number: No. 10083.,10083.
• Citation: 270 Ill. 461,110 N.E. 605
• Parties: WHEELER v. SANITARY DIST. OF CHICAGO.
• Court: Illinois Supreme Court

270 Ill. 461

110 N.E. 605

WHEELER

v.SANITARY DIST. OF CHICAGO.

No. 10083.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 10, 1915.

Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by William Wheeler against the Sanitary District of Chicago. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cartwright and Carter, JJ., dissenting.Edmund D. Adcock and Ross C. Hall, both of Chicago (Oscar H. Olsen and Walter E. Beebe, both of Chicago, of counsel), for appellant.

Warren Pease and Cecil Page, both of Chicago, for appellee.

DUNN, J.

This appeal is from a judgment rendered against the Sanitary District of Chicago in favor of William Wheeler for damages for overflowing his land. The case was tried on an amended declaration of one count, which alleged temporary damages to the land during the five years next preceding the beginning of the suit, which was March 12, 1912. Besides please of the general issue and denial of title, pleas were filed alleging a permanent injury to plaintiff's land at the time the drainage canal was opened, January 17, 1900; that that injury is the injury complained of by the plaintiff in his declaration; and that his supposed cause of action did not accrue within five years before the commencement of the suit. Issues were joined on these pleas.

The original declaration alleged facts which we have held to show permanent injury to the land caused at the time the drainage canal was opened. The amended declaration omitted all reference to the condition of the land showing that it would necessarily be damaged by the operation of the canal, and counted on damages to the crops, pasture and timber, and the use of the land during the five years immediately preceding the suit. It is argued that the court erred in permitting the declaration to be so amended. Our statute permits amendments at any time before judgment and on such terms as are just and reasonable to enable the plaintiff to sustain the action for the claim for which it was intended to be brought. It is not necessary that the amendment should state technically the same cause of action as the original declaration. The original declaration may not have stated a cause of action or may have stated one which the facts would not sustain. Unless the amended declaration stated a different cause of action from the original, in such case it would be of no avail. However, the filing of an amendment setting up a new cause of action is considered the beginning of a new suit commenced at the date of the filing of the amendment, and the statute of limitations may be pleaded to it accordingly. While the original declaration counted on a permanent injury occurring at the opening of the canal and the amended declaration on a different injury occurring during the five years preceding the suit, the amendment was properly allowed. The appellee was not estopped by the averments of the original declaration to amend it. The fact that he may have been mistaken as to his rights or the facts from which they arose would not prevent his amending his pleading to enable him to maintain his action.

[2] The amended declaration was filed December 13, 1913, nearly two years after the beginning of the suit. It counted upon damages to the crops, pasture, timber, and the use of the land during the five years immediately preceding the beginning of the suit. The appellant by its ninth plea set up the statute of limitations, averring that the cause of action did not accrue within five years next before the date of the filing of the amended declaration. A demurrer was sustained to this plea, and this action of the court is assigned as error. It is insisted by the appellee that the demurrer was properly sustained in accordance with the holding in the case of Vette v. Sanitary District of Chicago, 260 Ill. 432, 103 N. E. 241, that in an action to recover damages for a temporary injury to real estate or a continuing trespass alleged to have occurred within five years a mere formal plea of the statute of limitations is not sufficient, but special facts must be set up to show in what way the suit is barred. That rule is not applicable here, because the injury is not alleged to have occurred within five years before the filing of the amended declaration but within five years before the commencement of the suit. The amendment to the declaration introduced a new cause of action, and is therefore to be regarded as a new suit commenced when the amendment was filed. Heffron v. Rochester Ins. Co., 220 Ill. 514, 77 N. E. 262;Fish v. Farwell, 160 Ill. 236,43 N. E. 262;Chicago City Railway Co. v. McMeen, 206 Ill. 108, 68 N. E. 1093. All of the injuries occurring prior to December 13, 1908, would be barred by the statute of limitations. The only method in which the defendant could have the benefit of the statute for that part of the injuries which were alleged to have occurred prior to the statutory time before the filing of the amendment would be by pleading the statute. The demurrer to the ninth plea should have been overruled, and no recovery should have been permitted for injuries prior to December 13, 1908.

[3] The plaintiff's farm of over 700 acres was situated in Putnam county and before 1900 good crops were raised on it. It adjoined Senachwine lake, a bayou of the Illinois river. It had been overflowed by the waters of the Illinois river in 1892, when an unusual flood occurred, but except in years of extremely high water the raising of crops was not seriously interfered with. After the canal was opened, in 1900, the water level was about three feet higher than before, the floods were higher and slower going down, the ground was soggy and wet, the underdrainage was affected, and the tile stopped up. A good deal of the time corn could not be planted in time to make merchantable corn, the pasture could not be used, the timber began to die, and a large part of it was dead within a few years. In 1907, 1908, 1909, 1910, and 1911 there were floods which inflicted damage by keeping the ground wet and delaying planting or by injuring the growing crops. The appellant asked, and the court refused to give, the following instruction:

‘You are instructed that if on January 17, 1900, the plaintiff owned certain lands which he has described in his declaration filed herein, and that if prior to five years before the bringing of this suit the defendant did some act or acts by the construction or use of its drainage canal of which the natural and probable consequence was that the plaintiff's land would be invaded from and after the performance of such act or acts and at certain times in the future that could be ascertained to a reasonable degree of certainty, then as to such lands so described and so affected you are instructed that the plaintiff has sustained a permanent injury and cannot recover for such injury in this suit.’

This instruction should have been given on the authority of Shaw v. Sanitary District of Chicago, 267 Ill. 216, 108 N. E. 59. Instruction No. 32, which was also refused, stated a like principle and should also have been given.

In various instructions the jury were told, in substance, that if the plaintiff's lands were overflowed, permeated, and soaked with water only temporarily each year, and such water receded within the banks of the river and Lake Senachwine and the lands dried out and were usable for agricultural purposes for a portion at least of every year, such damages were not permanent but temporary. The reverse was held in Shaw v. Sanitary District of Chicago, supra.

[5] The appellant insists that if the lands of the appellee were so situated that they would necessarily be damaged and the timber, crops, and pasturage thereon injured by the opening of the canal and the flow of water from it into the Illinois river, all damage, present and future, must be recovered in one suit, and for this reason appellee is barred by the statute of limitations from recovering in this suit and the jury should have been instructed to render a verdict for the defendant. It is true that all the damages resulting from the construction of the canal and its operation as then authorized must be recovered in one suit, and it was the duty of the appellee to bring that suit within five years of the completion of the work and putting it in operation. He could not, however, recover in such a suit for the consequential damages which might result to his land from the enlarged operation of the canal which might afterward be authorized. He is not bound to sue in anticipation of injuries which may never be suffered, basing his right to recover on a future increased flow of water which may...