McGillis v. Willis

Harker, J.

In the year 1887 Inlet Swamp Drainage District was organized under the drainage and levee act, approved May 29, 1*879, for the purpose of draining and reclaiming some thirty thousand acres of swamp land in Lee County. All statutory requirements as to fixing boundaries, locating ditches, and assessing damages and benefits to the lands of the district were performed. The drainage commissioners contracted the work of ditching as authorized by statute. The natural outlet for the district was Inlet Creek, which was by the plans and order of the County Court made the main ditch. In order to float the dredge boats used for removing the dirt and rock to the depth required, the contractors in April, 1888, constructed a dam across this stream about one mile below appellee’s lands in such manner as to back up the water and cause their overflow. With the exception of an occasional opening to let out the water the dam remained until the month of August following, when it was removed. By reason of the construction of the dam and the consequent overflow of water the appellee claimed that large portions of his land had been rendered unfruitful to him that year, and brought his action on the ease against the drainage district, the drainage commissioners and contractors. A trial resulted in a verdict and a judgment against all the defendants for $263.33. Appellee based his claim for damages upon the “ wrongful ” act of constructing and maintaining the dam. A drainage district is not liable for such injury. It is a public, involuntary, quasi corporation, and in the absence of express enactment, not responsible for the wrongful and unlawful acts of its agents done in the execution of corporate duties or powers. Cooley’s Const. Lim., 247; Elmore v. Drainage Com’rs, 135 Ill. 269.

The verdict and judgment against the commissioners personally were unwarranted by the evidence. Acting under an order of the County Court they merely let the contract for the work. They had no immediate supervision of the dam. They took no part in its construction. If contractors in the performance of drainage work adopt an unlawful method, and one resulting in injury to an individual, his remedy is against the contractors alone, unless it can be shown that the commissioners advised or encouraged .such unlawful method.

The unwarranted verdict and judgment against the drainage district and the commissioners personally are sufficient grounds for reversal; but we are also of the opinion that appellee has no legal cause of action against the contractors. Four hundred and eighty acres of his land (including the land overflowed) were within the district. It appears from the evidence that a ’ jury, as authorized by law, assessed the damages and benefits that would result to the land from the drainage work. Appellee appeared as an objector on the confirmation of the assessment, and was heard or could have been heard as to such damages as would naturally and probably arise in a practical construction of the work. The evidence in this case clearly demonstrates that the erection of the dam was necessary to a feasible and economical proseention of the work. Immediately and for a long distance above the darn, the plans required the removal of dirt and the blasting and removal of rock several feet in depth and several feet in width for the “ main ditch.” To carry the machinery for drilling and removing the rock it was necessary to have the dredge boats floated. This could only be done by the construction of a dam. If the erection of the dam was necessary, then it must be presumed that when the jury in the drainage proceedings viewed the land for the purpose of assessing benefits and damages, they considered whether such a dam and the consequent backing up of the water would damage appellee’s land, and if so, fixed the amount. If, as a matter of fact,.the jury did not consider such damages, it was the privilege of appellee when he appeared as an objector to offer evidence in every detail shown by the profiles and plats, and demonstrate the effect, and have the damages allowed him. He has had “his day in court” as respects such, damages.

The principle of res adjudicada embraces not only what damages were actually determined in the former proceedings, but also such as were properly involved and might have been determined. Freeman on Judgments, 272; Rogers v. Higgins, 57 Ill. 244; Stockton v. Ford, 18 How. 418; Hamilton v. Quimby, 46 Ill. 90; Ruegger v. I. & St. L. R. R. Co., 103 Ill. 456.

In this view of the case the judgment must be reversed and not remanded.

Judgment reversed.