City of Effingham v. Surrells , 1898 Ill. App. LEXIS 76 ( 1898 )

Mb. Peesiding- Justice Creighton

delivered the opinion of the court.

This was an action by appellee against appellant, in the Effingham Circuit Court, to recover damages caused by flow of water upon appellee’s premises. A number of years ago appellant and the Illinois Central Railroad Company constructed a ditch for the drainage of the water from the streets of the city, and also for the drainage of the right of way of the railroad, which ditch has been maintained to the present time. This ditch, so constructed and maintained, was sufficient to carry off all the water diverted to it from streets of the city, so long as it was kept open and kept in repair. As first constructed, it changed the flow of water from its natural course to a considerable extent, and in 1894 appellant put in an eighteen-inch tile across Fayette avenue, which caused the diversion of a much larger quantity of water from its natural course into this ditch. The ditch is •on the right of way of the railroad company.

In 1895 the railroad company put in a turn-table which obstructed and filled up a portion of the ditch; under the turn-table it placed an eighteen-inch tile, which was insufficient to carry off the water that was concentrated in the ditch. Immediately after this obstruction was put in appellee complained of it to this street and alley committee of the city council, but appellant did nothing to remedy it.

The lot upon which appellee’s dwelling was situate, in which he lived with his family-, is adjacent to the ditch, at which point the ditch was about three feet deep. In a portion of the territory drained by this ditch are a number of livery stables, feed-yards and out-houses. During the month of July, 1895, a heavy rain fell, filling the ditch with water containing filth from these places, until it backed up into an alley south of appellee’s premises and into his yard, remaining until it turned green, and finally dried up by evaporation and soaking into the ground. Appellee suffered this annoyance and inconvenience and several of his family were- taken sick with typhoid fever.

The trial was by jury, who heard the evidence, and under an order of court viewed the premises. Verdict in favor of appellee for §250, upon which the court rendered judgment.

- Appellant contends that the third, fourth and fifth instructions given by the court, at the instance of appellee, are not supported by the evidénce. We have carefully examined the evidence, and in our opinion it abundantly supports these instructions.

Appellant also contends that the testimony does not show that the contaminated and stagnant water caused the sickness complained of.

The inference from the whole testimony is irresistible that it did cause the sickness; but if it did not, the damages recovered are not excessive compensation for the annoyance and inconvenience suffered.

Appellee’s sixth instruction concludes as follows :

“ Even though the obstruction of said ditch which caused the flow of the water over plaintiff’s premises, was made by the Illinois Central Eailroad Company.”

Appellant contends that this is not the law; that the city is not responsible for damages resulting from the stopping up of the ditch by another.

The city collected this water together and carried it out of its natural course to the vicinity of appellee’s premises, and it was its duty to furnish it an outlet. The city is not primarily liable for the stopping up of the ditch by the railroad company, but having notice that the railroad company had stopped it up, it is liable for not either causing the railroad company to remove the obstruction, or itself providing an escape for the water its ditches brought down upon appellee.

■ Appellant further contends that the city had a prescriptive right to carry this water through the ditch in that direction. The city had no prescriptive right, after notice, to allow the ditch to remain stopped up, and refuse to provide any other means of escape for the water it had collected and brought into proximity with appellee’s premises.

The judgment of the Circuit Court is affirmed.