Comm'rs of Highways of Pre-emption v. Whitsitt , 15 Ill. App. 318 ( 1884 )

Lacey J.

The evidence shows that between the village of Pre-emption and the point of discharge of the tile drain, a railroad crosses the highway and drain, and that it is about eighty rods north of the mouth of the tile drain, and that the tile had been laid to a point north of the railroad before appellee made any objections or sued out the .writ of injunction. That the highway at the mouth of the tile drain on section 11 is crossed by a ravine or swail running from west, to east, and over which there is a culvert in the road where this natural watercourse passes under the highway. That about thirty rods west, and up this ravine the appellee’s water-ram is located, which is rendered useless at times when there is much water, and when it backs up this ravine from the road to the ram. The appellee guesses-the flow of water in the ravine will be increased one third by the completion of the drain, and that it will damage the working of his water-ram, which he claims cost him from four to five hundred dollars. Appellee testifies that he did not object to the tile as far as it was laid, but objected to its continuance further north.-

The evidence of the engineer shows that the length of the proposed tile drain from the place where it empties into the ravine and where the work of laying it commenced, to the upper end, is twenty-eight hundred feet; fromjtlie point of commencement north to the point of the proposed ending of it there was an up grade twenty and forty-five one hundredths feet from the surface of the ground at commencement to the surface of the ground at the upper end, and in no place was the ground higher than at the upper end. There was a regular descending grade from the upper to the lower end with some intervening higher land along the line in some places than in others, but if the surface of the land had all been.tilled up level, there would have been a regular flow of water all the way from the upper to the lower end of the drain, so that under the rule in Peck v. Herrington, 109 Ill. 611, the appellee’s land would be the servient estate to the land covered by the highway north of appellee’s. The tile was simply laid and to be laid to absorb and carry off the surface water lying in ponds along the line of the road and on the right of way and would only take off the water underground, and as the water was discharged into a natural watercourse running across the land of appellee and discharged on the right of way of the highway into such watercourse, the appellants had a right to so discharge it, and in law there could be no damage resulting to appellee, no matter how much actual damages were suffered by him by means of an increased flow of water. Peck v. Herrington, supra. But the evidence shows that the damages were insignificant at best, and the existence of any was a mere matter of speculation, even if a right of recovery had existed. We think that the preponderance of the evidence shows that the damages would have been merely nominal in case the drain had been completed as projected, and that no irreparable loss would have been sustained.

By Peck v. Herrington these rules appear to be established:

1. That the owner of a dominant heritage may, by ditches or drains, drain his own land into the natural channel or watercourse, even if the quantity of water thrown upon the servient heritage is increased; and that it is not necessary that such watercourse should have a definite channel usually flowing in a particular direction and discharging into some other stream or body of water; but if it be surface water flowing in a regular channel it will be a sufficient watercourse. 2. The owner of the superior estate has the right to drain his lands through any regular channel on his own land,'as maybe required by good husbandry, which carries the water from the upper to the lower field, although the flow of water is increased, but can not drain it so as to create new channels on the servient estate. 3. Where there are natural ponds, merely the collection of surface water from rain or melting snow which fall upon the land, and there is such a descending grade that by filling up the ponds with dirt there would be a flow of water toward and onto the servient estate, such ponds, for the purpose of husbandry, may be drained, either by tile or other drains, into any natural watercourse existing on the superior estate and caused to flow over the servient estate, though the flow of the water may be increased thereby; though it may be that the owner of the superior estate would have no right to drain a large body of water or lake npon the land of an adjoining owner and destroy it. Just how large the lake or body of water must be is not clearly defined.

If the same rule is to be applied to road drainage as to farm drainage we see no reason under these rules why the appellants did not have a right to drain a road in the manner proposed. We can see no reason why the same rule should not govern as well in the one case as the other. Certainly, road drainage is fully as important as farm drainage, and those rules as to such drainage have been established by the courts out of considerations of public policy for the public good. Such damages as those complained of by the appellee must be regarded as having been settled in the act of.granting the right of way. For the owner of lands about to grant the right of way must know that highways will be drained and improved in the manner this was attempted. a

Under the more liberal view of the law in regard to drainage in the furtherance of the interest of good agriculture, as taken by the Supreme Court in the Peck-Herrington case, than was understood by many to have been held in the Hicks-. Silliman case, 93 Ill. 255, and the Turney-Smith case, 86 Ill. 331, and other cases by analogous reasoning, applying the same principles to the facts in this case, we think that the appellee had no grounds for complaint and no basis for his prayer for injunction.

The decree of the court below is reversed and the cause remanded.

Keversed and remanded.