Stoddard v. Filgur ( 1886 )

Welch, J.

This was a bill filed by appellants against the appellees to enjoin them from filling up an open ditch dug on the lands of the appellee Filgur. A temporary injunction was granted which, upon the hearing, the court dissolved and dismissed the bill, from which order this appeal is taken. The evidence shows that the appellant, Bela M. Stoddard, is the owner of the southeast quarter of section two in Minonk Township,- Woodford County, and that the appellee, David Filgur, is the owner of the southwest quarter of said section-That Stoddard was the owner of the dominant and Filgur of the servient estate. That the surface water from a large part of Stoddard’s land flowed entirely to and over Filgur’s land. The water flowed over the surface among the grass and other vegetation in slight depressions of the surface of the ground, ranging from three or four to several rods in width. Filgur, in 1875, dug an open ditch on his own land, a distance of sixty-seven rods. The ditch was six feet in width at the top, two feet at the'bottom, and three and one-half feet in depth. Stoddard, in 1882, constructed from fifteen to twenty tile drains, running from various portions of his land, all connected with and bringing their water together into a ten-inch tile drain, which discharged its waters into the open ditch two and one-lialf feet below the natural surface of the ground. Filgur, in 1885, had constructed two tile drains, one on each side of this open ditch, and was proceeding to fill up this open ditch level with the, surface of the ground, when this bill was filed to enjoin him from filling it up. The legal questions presented for our consideration by this record are: 1st. What are the relative rights of the owners of the dominant and servient estate ? 2d. What if any right can the owner of the dominant acquire in the servient estate under a parol license? We shall consider the questions in the order stated.

The rule announced by the Appellate and Supreme Courts of this State as to the relative rights of the owner of the dominant and servient estate, is clearly and tersely stated by Pillsbury, P. J., in Mellor v. Pilgrim, 3 Ill. App. 476. “The owner of a superior heritage can not by any act of his acquire the right to collect the surface water upon his own land by artificial channels, and thus flood his neighbor’s land, without his consent. He can not impose upon the land of an adjoining proprietor without his assent, or at least acquiescence, the additional burden of having the surface water converted into a stream when it is discharged upon his land. He is not obliged to accept it to his injury, in larger quantities or at different times than he otherwise would, but for the voluntary act of his neighbor.” In Gormley v. Sandford, 52 Ill. 158, the rule is announced, when a person makes artificial ditches upon his own land for his own accommodation, he has a perfect right to fill them up to the natural surface when they are dug, and that he is not obliged to open or keep open artificial drains for the purpose of draining the lands of others. Gilham v. Madison Co. R. R. Co., 49 Ill. 484; Hicks v. Silliman, 93 Ill. 255; Peck v. Harrington, 109 Ill. 611. Tested by the rule announced svpra, the appellants had no right to an injunction.

It is, however, insisted by the counsel for appellants that they had a license to drain into the ditch, from Filgur. Assuming that appellants had a parol license to drain into this ditch, what right did they acquire to the use of this ditch by virtue of the license ? In Woodward et al. v. Seely et al., 11 Ill. 157, Trumbull, J., said : “What then is a license? Simply to do something which, without such permission, would have been unlawful. It matters not whether granted by deed or parol; as a mere license it is always revocable at the will of the licensor, but when coupled with an interest and executed, it is irrevocable, and this constitutes the distinction between revocable and irrevocable licenses.”

When the license is coupled with an interest in land, or of such a character that the interest could not pass by parol, then a writing is essential to the creation of the interest, otherwise no interest passes. The license in this case under the rule announced supra was revocable. It is, however, insisted that this rule has been modified and we are referred to Russel v. Hubbard, 59 Ill. 335, Kamphouse v. Gaffner, 73 Ill. 453, and Forbes v. Balenseifer, 74 Ill. 183. In the case of Eussel v. Hubbard, 59 El. 335, where the owner of a lot of ground contemplating the erection of a frame building thereon, the owner of a brick house situated on the line of an adjacent lot proposed to him, if he would build of brick, he might use the brick wall of his house for the purpose of attaching thereto the proposed new building. The proposition was accepted, and the new house was built of brick and attached to the wall of the other building. It was held that, while the license to use and attach to the wall might have been revoked prior to the execution of the purpose of the license, jet, after its execution by the expenditure of money in the erection of the new building as induced by the permission, the license was irrevocable. This case as held in 73 Ill. supra, was held to be limited to cases of party walls. "We do not understand the dictum announced in the cases in 73 and 74 Ill. supra, to be in conflict with the rule announced in 11 Ill. supra, where the rule announced in “ Gale and Whately’s Law of Easements” was approved, “ that a man may in some cases by parol license, relinquish a right which he has acquired in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition ; but he can not hy such means impose any burden upon lands, in derogation of such ordinary rights of property. As for instance, a parol license will be valid for building a wall in front of his ancient windows, while a similar permission to turn a spout on his land from a neighboring house, will be invalid and revocable.” The rule as announced is approved in Tanner v. Volentine, 75 Ill. 624, and in National Stock Yards v. Wiggins Ferry Co., 112 Ill 384, where it is said the case of Russel v. Hubbard seems somewhat at variance with the case of Woodward v. Seely, but does not propose to overrule or question it. In Kamphouse v. Gaffner, 73 Ill. 453, we said Russel v. Hubbard must either be considered as limited to party walls or be considered as overruled, and in Forbes v. Balenseifer, 74 Ill. 183, it is rather intimated that Russel v. Hubbard is to be limited to the facts of that case. Woodward v. Seely has never been overruled or directly questioned by this court that we are aware of, and we think it must govern this case. What was said in the case of Woodward v. Seely, supra, may with equal propriety be said of this case: “ Tested by the law as here stated the license in this case was clearly invalid as it did impose a burden upon the land of defendants in derogation of what ordinarily belonged to it, and there can be no difference whether water is turned upon the land of another by means of a spout or mill-dam.” “jSTor can the complainants call upon a court of equity to enforce the license upon the grounds that they have made valuable improvements and expended their money relying in good faith upon it;” “ before acting so imprudently, they should have acquired permission by deed to overflow the land of the defendants.” We do not understand the rule announced in Morse v. Copeland, 2 Gray, 302, to be in conflict with the rule announced by the Supreme Court of this State, but if it is, it.would not he binding on us. The question in this State is no longer an open one. It is store decisis. There was no error in dissolving the injunction and dismissing the bill.

Deeres affirmed.