Langan v. Milk's Grove Special Drainage District No. 1 ( 1908 )

Mr. Justice Dibell

delivered the opinion of the court.

It is urged that the" demurrer should have been sustained on the ground that some statute of limitations is a bar to this proceeding. All that the special demurrer contains on that subject is as follows:

“It does not sufficiently appear from said petition * * * 8. That the petitioner is not now barred by the Statute of Limitations from demanding the relief prayed for.”

This is not equivalent to saying that the petition shows that the suit was barred, but only that the petition does not show that the action is not barred. In a common law pleading the pleader is not bound to notice or guard against the Statute of Limitations in stating his cause of action. But if the ground of demurrer alleged had been that the petition affirmatively showed that the Statute of Limitations had run against the cause of action, yet that ground of demurrer would not be well taken for two reasons.

1. This is an action at law and it is governed by the same rules of pleading that are applicable to other actions at law. Cleary v. Hoobler, 207 Ill. 97; Mayor of Roodhouse v. Briggs, 194 Ill. 435; People v. Board of Trade, 193 Ill. 577; Chicago Great Western Railway Company v. People, 179 Ill. 441. In the case last cited it was said: “Mandamus is a common law action and in the circuit court is governed by common law rules as to pleadings.” Such also is the statute. Be-vised Statutes, chapter 87, section 4. In 1 Chitty’s Pleading 496, the rule is stated: “It is always necessary to plead the statute of limitations specially.” In Gunton v. Hughes, 181 Ill. 132, it is held that at law a defendant cannot avail of the Statute of Limitations by demurrer, even if it appears on the face of the pleading that the time fixed as a limitation has expired, but he must plead the statute specially and give the plaintiff the opportunity to reply any special matter which prevents the bar from attaching. Wall v. C. & O. R. R. Co., 200 Ill. 66, is to the same. effect.

2. The petition shows that the district deepened and widened one of the lateral ditches across petitioner’s land in 1905 and thereby increased the flow of water from the lands above to and upon petitioner’s land, and that the same would stand there for lack of sufficient width and depth of the main ditch from the south part of petitioner’s land for about 10,700 feet to the east line of Milk’s Grove township, over which distance a fall of eight feet permits complete relief to be given to petitioner. It is not claimed that any Statute of Limitations has run since 1905 and therefore the Statute of Limitations is not a defense under a demurrer confessing the foregoing allegations.

Laches was alleged as a ground of special demurrer. We are of opinion that what was last above said disposes of that defense.

It is insisted that there is not sufficient allegation of a demand. Almost the same language upon that .subject used in this petition was used in the petitions in Peotone Drainage District v. Adams, 163 Ill. 428, and Kreiling v. Nortrup, 215 Ill. 195, and they were there treated as sufficient.

The chief objection urged to the petition is that it is too indefinite. If the contentions of the district in that respect are sustained it would be necessary for the petitioner to employ a surveyor, have a survey made' of the main ditch for the 10,700 feet thereof from the south part of his land to the east line of Milk’s Grove township and of said lateral ditch for the 2,000 feet thereof through his land and cause profiles thereof to be made showing the width, depth and .fall of said main ditch and said lateral ditch within said limits, and to file with the petition a profile thereof, and also to cause a surveyor or civil engineer to make estimates and draw profiles showing how deep and how wide and at what grade of descent said ditches should be in order to give petitioner an outlet for the waters from his land and for the waters brought upon his land by said two lateral ditches. It would then be necessary for the petitioner to amend his petition and set up and allege all said facts and' details so as to furnish the district with full information as to the manner in which they can make the drainage ditches accomplish the duty intended. The act under which this district was organized was repealed by the act in force July 1', 1885, but the district was continued in existence under and subject to the provisions of said later act. Cleary v. Hoobler, supra. Section 41 of said act of 1885, as amended in 1901, enacted that after the completion of the work the commissioners of the district shall keep the same in repair, and if the lands of the district are not drained as contemplated or they receive partial or no benefit, the commissioners shall use the funds of the district to carry out the original purpose, to the end that all the lands so far as practicable shall receive the benefits contemplated when the lands were classified, and if sufficient funds are not on hand the commissioners shall make a new tax levy. There is nothing in this to imply that the dissatisfied landowner must do the surveying and civil engineering necessary to determine just where the difficulty lies and just how much and what kind of repairs would be sufficient to give the proper outlet. An imperative duty seems by this statute to be imposed upon the drainage district, when it is ascertained that certain lands within the district are not drained when they have been classified as to be benefited by the ditches of the district, to take the initiative and give the landowner the required relief. This duty was expressed in the opinions in Peotone Drainage District v. Adams, 61 Ill. App. 435, and 163 Ill. 428. It seems most in harmony with the spirit of said amended section 41 of the Farm Drainage Act to hold that all the landowner needs to show is that his lands have been classified as to be benefited and have been assessed and that he has paid the assessment, and that his lands have not been drained, and to show reasonable ground for believing that the ditches and drains of the district can be so repaired as to give him the drainage contemplated by the organization of the district and the classification of his lands. Here the petition shows that in a distance of 10,700 feet from the south part of petitioner’s land there is a fall of eight feet, and that a fall of three feet in that distance in a ditch properly widened and graded at the bottom would drain petitioner’s land. It would seem burdensome to cast upon the landowner the civil engineering duties here called for. The district would not be bound to repair the ditches in the precise manner so suggested by the petitioner, unless indeed the judgment in mandamus so commanded, and the expense thus incurred by the landowner would very likely be lost. It seems to be the policy of the law to leave in the authorities of such a district a considerable discretion as to the precise manner of carrying out the details of such an improvement which may vary as conditions develop in actually doing the work. The judgment usually only commands the district to produce the result of relieving the land. In Peotone Drainage District v. Adams, supra, there was indeed in the amended petition some attempt to indicate what might be done by way of changing the underground tile drain there in question so as to relieve petitioner’s land, but as that tile drain was underground and out of sight, it is obvious that the allegations of that petition on that subject must have been largely matter of opinion. The amended prayer of the amended petition in that case only asked that the drainage commissioners be commanded “to alter, repair and modify said drainage system so as to provide an outlet of ample capacity to the end that your petitioner’s said land shall receive the protection and benefit contemplated when said drainage district was organized and the said lands were classified, and that they make a special assessment to meet the cost thereof.” The judgment of the court was in substantially the same words. It commanded the commissioners so to repair and modify the drainage system as to give the landowner adequate drainage, but how the previous work should be changed to accomplish that result was left to the commissioners. If therefore such a prayer and such a judgment are proper and sufficient, it would seem unnecessary for the landowner in his petition to set out details which were not to be incorporated in the judgment. In Kreiling v. Nortrup, supra, the petition, the prayer and the judgment seem to have been substantially like those in the case before us, and the judgment was affirmed. True, that petition was not tested by a demurrer, but the two cases just cited seem to indicate the proper pleading and practice in such case. If so, this petition is not subject to the charge of being too indefinite.

One sentence in said petition states that if said main ditch and two lateral ditches be deepened and widened within the limits already stated, a complete outlet would be furnished for the drainage of petitioner’s land and for carrying off the water brought thereon by said two lateral ditches, “as your petitioner is informed and believes.” That sentence does not aid the petition, for the allegations of a common law pleading must be positive' and are not permitted to be made upon information and belief. It is argued that the entire petition is bad because of the words just quoted. An examination of other parts of the petition show that the same charge is elsewhere' substantially alleged without that qualification. The allegations that the fall from the south part of the petitioner’s land to the east line of Milk’s Grove Township, a distance of about 10,700 feet, is about eight feet, and that said main ditch can he deepened sufficiently to give petitioner a complete outlet and carry off the water from petitioner’s land and from the two lateral ditches without interfering with the flow in the main ditch, and numerous like allegations, are positively alleged and as positively admitted by the demurrer. The presence therefore of a single allegation in a single sentence based only upon information and belief is not sufficient to render the pleading obnoxious to the demurrer.

The judgment includes an order for an execution against the drainage district. The district is a quasi-municipal corporation, and the commissioners are sued only in their official capacity, and it was error to award execution. That part of the judgment must be reversed, but as no point was made upon it by appellant, such partial reversal should not carry costs in this court. The order for execution is reversed and in all other respects the judgment is affirmed at the costs of the district, without execution.

Affirmed in fart and reversed in fart.