Thornton v. Roll , 118 Ill. 350 ( 1886 )

Per Curiam :

That part of the bill which alleges that it is threatened to take earth from Thornton bluff, without the •consent of the appellant, charges but a threat to commit a trespass upon real estate; and there being no allegation that the parties threatening are insolvent, it can afford no ground for an injunction. (Owens et al. v. Crossett, 105 Ill. 354.) That allegation is, moreover, put effectually out of the case by the answers of the defendants, and the proofs, which show that before the bill was filed, the intention to take earth from Thornton bluff was abandoned. The contract with Sullivan is simply to make an excavation for an opening in the embankment, and to deposit the earth taken therefrom, on the remaining embankment, and there is no pretence that the commissioners have a contract with any one else to take earth from Thornton bluff.

The allegation in the bill, that the commissioners threaten and have contracted to widen the embankment to the width of twenty feet, and that this will result in taking four feet in width and four hundred feet in length of the land of the appellant, is not sustained by the preponderance of The proofs. Each defendant, under oath, denies that it is intended, in widening or improving the embankment, to invade the possession of the appellant, and this is not satisfactorily overcome by other proof.

This leaves, then, only the allegation of the threatened nuisance,—namely, that by making the excavation, as proposed, in the embankment, the water will be drawn off appellant’s land, when it is flooded, in a current, whereby his soil will be washed away," and driftwood will be deposited upon his land. This allegation, it is manifest, is not a charge of the creation of a nuisance per se, like the erection of a powder mill, or works emitting offensive and poisonous vapors.' The excavation is within the discretion conferred by law upon the commissioners, and there is no reason to apprehend that, of itself, it can be harmful to others, or that, in effecting it, injury will result to the appellant, but the fear is, simply, after it is made, floods will come, and the water then upon appellant’s land, in consequence of this excavation, will be so drawn off as to injure it, in a manner that it would not otherwise injure it. The rule, as applicable to such cases, is thus laid down in Wood on Nuisance, sec. 788: “But to entitle a party to relief in such cases, a very strong case must be made by the bill, and sustained by the proof, as if, on coming in of the answer, the fact of contemplated nuisance is fully denied, or if, upon the facts, there is a reasonable doubt of the effect of the erection, the injunction will be denied until the question of nuisance is determined by the actual use of the property. ” To like effect, see, also, Dunning v. City of Aurora, 40 Ill. 486; High on Injunctions, sec. 488.

There is here a large number of witnesses, quite respectable in character, we have no doubt, who show, by their affidavits, that the appellant will be injured in the way he alleges in his bill; but, on the other hand, there is about an equal number of witnesses, and, we presume, of equal respectability, who show, by their affidavits, directly the reverse,—and to us it seems quite as probable that they are right as the others. We do not think it advisable to enlarge this opinion by quoting these affidavits, or commenting at length upon their language. They have all been read and carefully considered, and, to say the least, we are not clearly satisfied that appellant must sustain the injury he apprehends. Some witnesses, indeed, express the belief that the excavation will be a positive benefit to him, and give plausible reasons for the belief. Necessarily, much connected with the question is purely theoretical, and never can be demonstrated by any other mode than actual experiment. The good faith of the commissioners is put beyond question by the evidence, and it is likewise very satisfactorily shown that the public interest requires either this improvement, or one of a kindred character, for the protection of the embankment near the river. We are not satisfied that the decree of the circuit court is wrong.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

This case, when first decided, was assigned to the late Justice Dickey, to prepare the opinion, but he having prepared no opinion in his lifetime,-the case was again assigned since his death, and the present opinion has been prepared.