Lambert v. Alcorn

Me. Justice Cartwright.

The appellants, Menzo' Lambert and Hannibal Hill, filed their bill in chancery against Joseph Alcorn, appellee, seeking a perpetual injunction to restrain Alcorn from putting in a system of tile drainage on his lands and the lands of Mary Wilson, whereby the surface waters collected on his lands would be discharged into a ditch in the public highway, and flow from thence to and across the lands of appellants toward Indian Creek. The court upon hearing made the injunction perpetual as to fifty acres of Alcorn’s land, and dissolved it as to the remaining one hundred and ten acres. The evidence shows that the lands of Alcorn, as to which the injunction was dissolved, are quite level. They are mainly low, wet lands interspersed with small marshes or ponds, which furnish receptacles for surface waters caused by rains and melting of snow. The surface waters were accustomed to stand in these marshes and ponds and settle into the soil or pass off by evaporation, except in case of heavy rains or freshets, when the lands would be overflowed and the water would run off toward the west, except such as would remain in the marshes and shallow ponds. Such slope as there is, tends toward the west and is very slight except in the extreme westerly portion, near the place of discharge, where there is a sufficient slope to carry off all water from that portion of the lands toward the west.

The contemplated system of drainage upon these lands was to put in a main tile drain leading toward the west with lateral branches running into it. West of Alcorn’s land lies a tract owned by Mary Wilson, across which it is designed to lay the tile in a westerly direction, discharging the water therefrom into a ditch on a public highway running east and west, north of the lands of said Mary Wilson and Alcorn. The water when discharged into this ditch would.run westerly along the same to an intersection with another highway running northeasterly and southwesterly, where it would pass under a culvert and flow upon lands of Lambert, and from thence across lands of Mary Wilson to and across lands of Hill to Indian Creek. The tile across the lands of Mary Wilson between Alcorn’s land and the place of discharge at the public highway were to be laid in a ditch dug in a natural depression across the lands where the waters had been accustomed to flow in running off from Alcorn’s land as before stated.

From the place where the water would cross the highway, there is a practically continuous, natural fall to and across appellants’ lands toward Indian Creek, and across their lands there is a natural depression, in which the surface water in time of heavy rains or freshets has been accustomed to run to the natural watercourse at the creek. At times there have been considerable currents of water running off through this natural depression. Appellants contend that appellee has no right to put in operation this system of drainage, by collecting the surface water on his land into an artificial ditch or channel, and conducting it to the land of the adjacent owner in such artificial channel. They claim that he must conduct the water so as to discharge it upon his own land into a well defined natural watercourse upon his own premises, and so that it will flow from thence in a natural watercourse over the land of such adjacent proprietor. The claim is that he can not impose any burden upon their lands by the construction of ditches or artificial structures, unless such burden is caused in assisting the flow of water into a natural channel on his own premises. Appellee claims the right to drain his lands both by virtue of the law applicable to dominant and servient estates and by reason of the statute concerning farpi drainage, in force July 1, 1885. ' Section 4 of this act is as follows :

“ Owners of land may drain the same in the general course of natural drainage by constructing open or covered drains, discharging the same into any natural watercourse or into any natural depression, whereby the water will be carried into some natural Avatercourse, or into some drain on the public highway with the consent of the commissioners thereto; and ivhen such drainage is wholly upon the owner’s land, he shall not be liable in damages therefor to any person or persons or corporations.”

From the situation of appellee^s lands the water, when drained off, must, in the natural course of drainage, go in the direction and along the course in which the tile was proposed to be laid. The commissioners of highways are not complaining of the proposed discharge of the water into the drain on the public highway; and the place of discharge is at the intersection of the highway vrith a natural depression where water had previously naturally flowed into the highway, the only effect of the tile drain being to increase the quantity which would otherwise flow' into such highway drain.

The lands of appellee would be more perfectly drained in the general course of natural drainage, and the increased quantity of water flowing in the highway drain would be discharged into the natural depression on- the lands of appellant Lambert. The tile was to be laid across the lands of Mary Wilson to the liiglnvay by agreement with her. The conditions of the case appear to meet the provisions of the statute.

Aside from the statute, the owner of a higher tract of land has a right by. ditches and drains to drain his land, so that the surface water falling or coming naturally upon it may pass off through the drains which nature has provided over the lower land, although the quantity of water thrown upon the lower land may be increased. Young v. Com’rs of Highways, 134 Ill. 569; Dayton v. Drainage Com’rs, 128 Ill. 271; Anderson v. Henderson, 124 Ill. 164; Totel v. Bonnefoy, 123 Ill. 683; Peck v. Herrington, 109 Ill. 611.

We think that appellee had the right to drain his lands, concerning which the injunction was dissolved, in the manner contemplated by him.

It is also urged that the court erred in assessing damages on the partial dissolution of the injunction. Most of the expenses incurred by appellee were on account of proof as to the lands on which the injunction was dissolved, and the damages allowed -were justified.

Appellee has assigned as cross-error that the court erred in making the injunction perpetual as to the fifty acres, lie disclaimed in his answer any intention to drain this fifty acres in the direction of complainant’s lands, but when examined as a witness he prevaricated as to his intention so that it was not discoverable from his testimony what it in fact was. The injunction was properly made perpetual as to the fifty acres. The decree will be affirmed.

Decree affirmed.