Payson v. Village of Milan ( 1908 )

Mr. Presiding Justice Willis

delivered the opinion of the court.

W. H. Payson, Jr., instituted this suit in the Circuit Court of Bock Island county against the Village of Milan to recover damages alleged to have resulted from the construction of a levee and ditch upon and along Water street in said village in front of land owned by him.

The declaration averred appellant’s ownership and possession of lot 1, block 1, Dickson’s Addition to the Village of Milan, situated immediately north of Water street in said village with a natural water-course on the east side thereof known as Mill creek which flowed from the south and east past said lot and thence north into Bock river, and that said Water street was about level with said lot, affording access and egress from any part of said street to said lot, and that in October, 1904, appellee unlawfully caused an embankment to be constructed and a ditch dug on said street, which caused the waters of said Mill creek to overflow his land and-crops, by which he lost the use of said lands and his right of access and egress to and from said land was impaired. There was a plea of not guilty interposed, a trial resulting in a verdict of not guilty, a motion for a new trial was overruled, judgment was entered against the plaintiff and he prosecutes this appeal.

The evidence shows that Bock river forms the northern boundary of the Village of Milan and Mill creek its eastern boundary. Water street runs east and west in the village and intersects Mill creek, leaving a triangular strip of land between it and Bock river varying in width from two to three rods on the west to about forty rods on the east at its intersection with Mill creek. Appellant is the owner of about twelve or thirteen acres lying between this street and Bock river, its eastern boundary being near Mill creek. This creek drains a large area of country south of the village, and prior to 1893, emptied into Rock river. The village is low and has been subjected at times to flood during high water. In 1893, the U. S. Government constructed the Hennepin canal, which, beginning at the confluence of the Rock and Mississippi rivers, extends easterly for a distance of twelve or fifteen miles in the bed of Rock river. Opposite the Village of Milan, there are islands which divide Rock river into what is known as the north and south branches. The canal as constructed cut the south branch next the village off entirely from the main stream so that the waters of Mill creek were confined to the south branch. The result was that the south branch, being-no longer cleaned by the ordinary flow of water, began to fill up with sediment deposited by Mill creek, and the waters of that stream which were theretofore discharged into Rock river were obstructed and thrown back by the south wall of the canal and their flow westerly obstructed. With the consent of appellee, the U. S. Government in 1904 erected a levee along Water street a distance of about .3,000 feet entirely along appellant’s land. This levee was raised to a height of four to six feet, and along the north side was dug a ditch which extended the length of the land in question, and on the east to the bank of Mill creek. The .west bank of Mill creek was low, not more than a foot above its bed, and about the center of appellant’s land was a low place or pond, connected with which was a natural swale or draw clear across his land.

Appellant claimed that the levee and ditch cut off all access to and all egress from his lands except at the southeast corner, where a fill or driveway was constructed leading from the street across the ditch, and that the land was greatly damaged by the building of the levee and ditch, thereby confining the flood waters on the land and subjecting it to the burden of carrying them off, injuring the land for building purposes ; and that the ditch conducted the waters from Mill creek in flood times west to the pond on his land, thereby washing it- away and opening a ditch through the swale or draw.

There was the usual variance between the estimates of the witnesses as to the damages. The jury viewed the premises, to which no objection is made, but it is urged that they were erroneously instructed as to the extent they might use their view in considering their verdict.

The eighteenth instruction given for appellee was in the following words:

“The court instructs the jury that if they believe from the whole evidence that they have from personal examination of the premises arrived at a more accurate judgment as to whether the plaintiff’s lands have been damaged or not damaged by the construction of the embankment and ditch in question, than is shown by the evidence in open court, then in that case the jury may, upon the evidence, determine this question by their judgment so derived from a personal examination of the premises as a jury, even though it may differ from the weight of testimony given by witnesses in open court.”

In Rich v. City of Chicago, 187 Ill. 396, a special assessment proceeding wherein an instruction was given reading as follows, ‘ ‘ The jury are instructed that their view of the premises assessed in this case, and the facts that they may have acquired from such view, so far as they pertain to special benefits that said premises may or may not derive from the proposed improvement, is evidence for them to make up their verdict,” the court said: “It was within the power of the court to permit the jury to view the premises, as in cases at common law, if the court in the exercise of a sound discretion considered such view necessary or proper to enable the jury to understand and apply the evidence. But such view, or the facts ascertained by the jury upon such view, could not, of itself or themselves, be considered as evidence in arriving at the verdict;” and cited Vane v. City of Evanston, 150 Ill. 616; Osgood v. City of Chicago, 154 Ill. 194; and added: “The rule is not the same in cases of this character as in condemnation cases, where the statute provides for such view,” In the Vane case the court said, that, “The only purpose of permitting the jury to inspect and view the locus in quo is to better enable them to understand the matter of controversy between the parties, and to clear up any obscurity that may exist in the application of the evidence introduced in the case. * * * They were not authorized to consider any fact bearing upon the merits of the controversy derived from such view.” It is very clear that appellee’s 18th instruction is in direct conflict with what was said in Rich v. City of Chicago and Vane v. City of Evanston and to allow such a practice, as said in the Vane case, “would introduce a great uncertainty in the trial of all common law cases where a personal view was permitted.” In the case at bar instead of limiting the effect of the view as evidence in the case by proper instruction, the court instructed the jury that if they believed from all the evidence that they had arrived at a more accurate judgment as to whether the lands were damaged or not from their view of the same, than was shown by the evidence in open court, then they might disregard the weight of such evidence and render a verdict based upon their view. This was error. This instruction violated the rule of law long established. Appellee’s counsel cite Kiernan v. Chicago, Santa Fe & California Railway Company, 123 Ill. 195, as a case sustaining such instruction, but we do not so regard it. The instruction in that case was given in a proceeding under the eminent domain act. Atchison, Topeka & Santa Fe Railroad Company v. Schneider, 127 Ill. 144; Peoria Gas Light Company v. Peoria Terminal Railway Company, 146 Ill. 372; Chicago & State Line Railway Company v. Mines, 221 Ill. 448.

Appellant offered in evidence the resolution of the Village of Milan authorizing the improvement and also specifications for the work, which were excluded on objection of appellee. The resolution and specifications were competent for the purpose of showing that the improvement was made with the permission of appellee, and as a declaration against interest.

Appellee introduced testimony tending to show that appellant’s access and egress to and from the land were not interfered with by the levee and ditch, claiming that he never had more than one entrance or egress before, and that the levee and ditch enhanced the value of the land. In rebuttal, appellant offered to show that he had a number of ways in and out, and that the land was not benefited as claimed by appellee. To these offers the court sustained an objection. The evidence so excluded was competent, and its exclusion error.

For the errors indicated, the judgment is reversed and the cause remanded.

jReversed and remanded.