Larkin v. Lamping

Harker, J.

This was an action of trespass by appellee against appellant to recover damages for the wrongful diversion of water from appellant’s land into a highway and thence upon the land of appellee.

- The evidence shows the following facts: Appellee was the owner of a body of farm land in the northwest quarter of section seven in the town of Joliet. It lies immediately south of a public highway, running east and west between sections six and seven. At or near the northeast corner of his land is a natural depression extending in a southwesterly direction across his land, and forming an outlet for surface water from the north, and from the east along the highway for a distance of nearly 4,000 feet. About three-fourths of a mile east of his land is a slight elevation or knoll, which caused the surface water from the lands east to shed in a different direction, toward the south. East of this elevation the ground formed a swale, which without any artificial drainage was wont to hold a considerable amount of water before passing off toward the south. The land of appellant, from which it is claimed the water was wrongfully diverted, is situated in section five, immediately north of the highway and the swale mentioned. The condition of the highway at tins point was very bad in wet weather, and the highway commissioners had experienced much difficulty in their efforts to make it passable. "With the view of improving its condition, the commissioners decided to drain it east of the elevation mentioned, and accordingly buried six inch tile from a point on the highway about one and a half miles east of appellee’s land, through the swale and elevation for a distance of about three-fourths of a mile. The tile was then turned into a ditch constructed by the commissioners along the highway to the depression at the northeast corner of appellee’s land. For the purpose of carrying the water rapidly from this ditch in the highway, the commissioners proposed to dig a ditch across appellee’s land along the course of the depression, into a channel in lands beyond his. This, appellee refused to allow, but agreed to put’ in a nine inch tile drain instead, if the commissioners would furnish the tile. Under that arrangement the tile drain was constructed across appellee’s land, its sole purpose being to take off the surface water naturally flowing in that direction from the highway adjacent thereto. This occurred about 1880. After the six inch tile drain was laid in the highway, appellant connected with it a five inch tile from his land in section five. Appellee at the time notified appellant that by so doing he was diverting the water from its natural course, and if he was ever damaged by reason of his action in that regard, he should hold him responsible. Appellant subsequently connected another tile (a three inch tile) with the highway tile.

The spring rains of 1890 were quite heavy and the waters turned into the highway tile and the ditch below it were so great as to exceed the capacity of the nine inch tile through appellee’s land, already burdened as it was by tile connections from his and two of his neighbors’ tracts, situated west of the elevation mentioned. As a consequence his field was flooded and a growing crop of corn damaged. For such damages this suit was brought and a judgment recovered in the Circuit Court for §25.

The importance of the controversy does not rest in the insignificant money judgment recovered. If appellant has the right to drain into the highway tile drain, others east of the elevation have the same right, and appellee must either enlarge the capacity of the drain through his land or suffer, without remedy, the damages incident to every overflow occasioned in the future by heavy rains.

It is conceded that the water from appellant’s land would flow naturally in a southeasterly direction across the highway, and that it would not reach the appellee’s land in its natural state. It is insisted, however, that appellee had no cause of action, because, first, he consented to and acquiesced in the right of appellant to drain into the highway tile; second, the act of appellant in connecting with that tile was not the proximate cause of the injury complained of; and third, he wrongfully allowed his neighbors, Patrick Smith and Thomas Lynch, to connect with his tile after appellant had connected with that in the highway, thus burdening the nine inch tile beyond its capacity, and causing the overflow.

The evidence fails to show that appellee, by word or action, consented to or acquiesced in the action, of appellant. Upon the contrary, when he saw him laying the tile and making the connection, he told him he was doing an unlawful thing, and that if he éver suffered in consequence thereof he should hold him responsible. He did consent to the action of the commissioners in draining the highway east of the elevation into the ditch and* thence through his land. Without his consent their action would have been unlawful. Highway commissioners have no right to collect and carry along the highway a quantity of water which would naturally drain off in another direction, and discharge such accumulated water on the farm of adjoining land owners. Young v. Commissioners of Highways, 134 Ill. 569. But because of such consent it can not be held he, in effect, consented to the drainage of appellant’s lands through his. When he gave his consent he doubtless considered the nine inch tile sufficient to take care of the water flowing from the highway, and such as would naturally flow from the lands west of the elevation. To the contention of appellant that appellee had acquiesced and remained silent for a period of eight or nine years, and that his conduct in that regard brings him within the provisions of the act of 1889 relating to drainage by mutual consent (Session Laws of 1889, page 116), it may be replied that appellant was not a party to the agreement under which the nine inch tile was laid. The commissioners could not allow him to connect with their tile without violating section two of that act. Such contention, too, is made in the face of the fact that appellee had warned appellant that whenever damage occurred by reason of such connection, appellant would be held responsible.

Appellee permitted Patrick Smith and Thomas Lynch to drain the water from their farms into the nine -inch tile laid through his land. Inasmuch as the capacity of that tile had been ample to take off the water from appellant’s land and the highway before then, and as there had been no overflow until after Lynch and Smith had made their connection, it is contended that appellee was guilty of contributory negligence and that the connections made by those men and not the connection of appellant with the highway tile was the proximate cause of the overflow of appellee’s land. To those two points it is sufficient to reply that the lands of Lynch and Smith are west of the elevation and have a natural drainage through the depression on appellee’s land. Permission to them to confine the flow of water and send it directly into the nine inch tile was not negligence on his part. It was both wise and rightful. The act of appellant in draining into the highway tile must be regarded as the proximate cause of the injury, because it was unlawful and without it the injury would not have occurred.

We do not care to discuss the question of damages. We see no error in the record and the judgment must be affirmed.

Judgment affirmed.