Dole v. Clow , 1885 Ill. App. LEXIS 251 ( 1886 )

Welch, J.

This was an action on the case brought by the appellee against the appellant to recover damages for injuries claimed to have been caused by the damming up by appellant of the outlet of Crystal Lake, and thereby flooding the land of appellee. The lands of appellee claimed to have been injured comprise about fortv-iive acres of a farm of about two hundred acres lying and bordering on the north shore of said lake. This lake is about one and three quarter miles east and west and about three fourths of a mile north and south. A portion of this farm has a lake shore front on the north of about three quarters of a mile. This forty-five acres claimed to have been injured is separated from the lake by a ridge of loose sand, gravel and pebble stones, some three feet in height. The outlet of the lake is situated at its.southeast corner. The appellee had a ditch on liis lands from the lake, connecting with his forty-five acres. The appellant was the owner of all the lands bordering upon and around the lake, except that owned by the appellee and a small piece of land owned by James Crow, near the northeast corner of said lake. The declaration contains two counts. The first count avers that the appellant “ wrongfully stopped up, dammed up, obstructed, raised and elevated said waters of said Crystal Lake, and then and there and thereof, and by reason thereof, from thence, during all the time aforesaid, unjustly and wrongfully made and caused to be made and kept and continued, and still doth make, keep, cause and continue, large quantities of the said waters of said Crystal Lake to run and flow to, into, upon and over the said messuage, lands and premises of the said plaintiff, and thereof unlawfully, unjustly and wrongfully, by means thereof, greatly injured the plaintiff,” etc. The second count avers that the appellant “ doth cause, procure and continue largo quantities of water to run upon, into and over, and to flow upon and into the lands of the plaintiff.” It is first insisted by the learned counsel for the appellan t “ that the proofs made do not agree with the case alleged, and do not support it.” If this position is true, then no recovery could be sustained in this action. Under the well established rule of pleading, the plaintiff must in his declaration clearly state the nature of the defendant’s liability, and that liability must be proved as laid. We have carefully examined the record in this case, and while we find a sharp conflict in the evidence, we are not prepared to say that the proof does not sustain the declaration. We do not deem it necessary to refer to the testimony in detail. The evidence for the appellee tended strongly to prove that the placing of the flash hoards by the appellant, in 1877, at the natural outlet of said lake, had caused the waters in said lake to rise some two feet higher than it was prior thereto; that the lands claimed to have been overflowed had, prior to the placing of the flash boards, been dry and could be cultivated, and that since they were placed at the outlet the waters of said lake had flowed to, over and upon the said land of appellee, causing said land to be overflowed and rendered worthless for crops. There was also evidence for the appellee tending to prove that the placing of the flash boards by the appellant at the outlet of said lake had caused the waters in said lake to rise some two feet higher, and thereby had impeded, dammed and 'stopped the flow of the water from appellee’s ditch into said lake, and had caused the same to flow back to, on and over the appellee’s lands, thereby causing said lands to be overflowed. The evidence for the appellant tended to prove that the placing of the flash boards did not cause the waters in said lake to rise higher; that the escape of the waters from said lake had not been impeded, and that no water from said lake had flowed to, over and upon the lands of appellee, and that the escape of the water through the ditch of the appellee into the lake was not dammed, stopped or impeded by the placing of the flash boards. In this conflict of evidence the Supreme Court has uniformly held, “ that the verdict will not be disturbed on the ground the verdict is against the evidence, where there is enough to support the finding.” In such a case the court will not attempt to nicely weigh the evidence on each side, and will only grant a new trial when the verdict is manifestly against the evidence. White v. Clayes, 32 Ill. 325; Tolman v. Race, 36 Ill. 472; Umlauf v. Bassett, 38 Ill. 96; Harbison v. Shook, 41 Ill. 141; Stickle v. Otto, 86 Ill. 161; Addems v. Suver, 89 Ill. 482; Howett v. Estelle, 92 Ill. 218. There was no question as to the placing of the flash boards by the appellant at the outlet of said lake, but whether the waters of said lake were raised thereby and caused to flow from and over the lands of appellee from said lake, or whether the water from the ditch of the appellee was impeded, dammed and stopped, and caused to flow back to, on and over appellee’s, lands in consequence of the placing of said flash boards, were all questions of fact. It was the province of the jury to find the facts and to determine the weight and credit to be given to the testimony. Bishop v. Busse, 69 Ill. 403. The objection to the 3d and 5th instructions given for appellee is not well taken. All of the controverted questions arising in the case were by these instructions clearly submitted to the jury. The fixing of the time at the summer months as to the height of the waters in said lake, prior to the placing of the flash boards, was correct. The question-for the jury to determine was so stated, supra. We find no error in the law as given. Substantial justice has been done.

Judgment affirmed.