Chicago & Alton Railroad v. Village of Gardner

Mr. Presiding Justice Lacey

delivered the opinion op the Court.

This was a bill in equity seeking to enjoin the continuance of an alleged nuisance in diverting water from its natural course, to the damage of the streets of the village.

This bill was originally exhibited by the village of Gardner, and the highway commissioners of the township of Greenfield, Grundy county, Illinois, wherein they aver that the acts complained of constituted a nuisance both public and private, and the relief sought was the abatement of the nuisance, by a decree of a court of equity requiring and compelling the defendant to do certain particular acts specified in the bill.

At the hearing, the bill was dismissed by the highway commissioners, and the suit proceeded .thereafter to final decree with the village of Gardner as sole complainant.

The village of Gardner is incorporated under the general incorporation act of 1872 as a village.

The village has a population of twelve hundred and is located on parts of sections 4 and 9 in Greenfield township.

The defendant owns and operates a railroad with double tracks, running in a northeasterly direction through sections 19, 18, 17, 8, 9, 4 and 3, in said township, and thence on through sections.34, 35, 26, 25 and 24 of Braceville township, intersecting and crossing on said section 34, in said last named township, a large stream, known as Mazon Creek.

The bill sets out in particular that the railroad, by its embankments, is so constructed that in consequence thereof the water and natural drainage of territory south of said railroad is wholly cut off and intercepted, and dammed back by said railroad embankment, except such portions as can be accommodated by the south railroad ditch; 'that the three culverts mentioned in the bill and railroad ditch on the south line of the road are wholly inadequate to accommodate the natural and usual drainage of the land; that the portion of the village of Gardner lying south of the railroad requires for suitable drainage a culvert or waterway across the said railroad, at the intersection of two sloughs mentioned in the bill, and also a culvert at two other points mentioned, part of the village of Gardner; that the railroad dams back and diverts the water of said two sloughs to such an extent that the public streets of the village on the south side of said railroad have been, and in time of heavy rains are, greatly damaged; public travel thereon interfered with and the sidewalks torn up and washed away, while the cellars and lower rooms and many of the residences of the village on the south side of the railroad have been, and in time of heavy rains will .be again, actually flooded, by means whereof the said railroad embankment has become now, and will continue to be, a public and private nuisance.

The bill prays, a decree of court to compel the appellant to remove the embankment across said two sloughs, and also to compel the railroad to construct and maintain across said railroad embankments two or more culverts, or openings for water, three feet wide, and two feet deep, at points mentioned in the prayer.

The bill was answered and the cause referred to the master, who reported his conclusions, sustaining the allegations of the bill, and reported among other things, that the railroad ditch which passed through the village was of sufficient capacity to carry off all surface or slough water, except occasionally, to some extent, up to the spring of 1892, when an unusual rainfall came and overflowed nearly every lot on the south side of said railroad track in the village of Gardner, doing a large amount of damage to the inhabitants living on that side of said railroad.

Appellant excepted to the master’s report before the master and before the court, which was overruled, and the court decreed the general relief asked in the bill compelling the appellant to erect the culverts.

The appellant insists, as he did in the court below, that equity had no jurisdiction in the case because the evidence did not show the wrongs complained of to be a nuisance per se, and there has been no adjudication at law establishing the existence of the nuisance. The evidence is somewhat conflicting as to whether there has been any change made by appellant changing the flow of the water or obstructions in recent years. If, as is claimed by the appellant, the railroad embankment has remained for forty years in its present condition with its present means of flowing the water, the appellee having acquiesced therein without complaint during that time, it has lost its right to relief by its own laehes, if ever such existed. The evidence shows, as well as the master’s report, that in all ordinary times the present facilities for carrying off the water through the railroad ditch are sufficient, but in extraordinary wet times, such as in the spring of 1892, damages are liable to be done.

We can not say that appellee has clearly established its right. A court of equitjr will not have jurisdiction over the subject of nuisances except in extraordinary cases, where the case is clear and free from all substantial doubt as to the right of relief, for in doubtful cases the party will be turned over to his legal remedy.

It must be a strong and mischievous case of pressing necessity or the right must have been previously established at law. The defendant in an action of this character ought not to be deprived of his constitutional right of trial by jury unless in a clear case.

The following cases support the above doctrine: Oswald v. Wolf, 129 Ill. 200; Nelson v. Milligan et al., 151 Ill. 462; Robb v. Village of La Grange, 158 Ill. 21; Wahle v. Reinbach, 76 Ill. 322.

The evidence shows that the railroad ditch is adequate to carry all the water in times of ordinary rainfall, and Harry E. Snyder, a member of the village board, who, except two years, lived in the village of Gardner nineteen years, never saw the water in those houses at any time before or since 1892, at which time the flood continued -twenty-four hours. So it will be seen that this is not a very pressing matter, so that a question of fact might not' ha\re been passed on in a suit at law. That same year Mr. Eldridge, who was a civil engineer in the employ of appellant, testified that he remembered the high water of 1892. ‘‘At that time our tracks at three-quarters of - the distance between Alton and St. Louis were submerged with water so that we had to use steamboats for eleven days, and something like a dozen culverts - between Lemont and Lockport the high water went over. We have had no trouble with water since then; no complaints about flowage of water about Gardner ever came to the engineering department except at this time;” and this seems to be the substance of all the evidence.

We think it is a fair question for a jury. Holding as we do under the evidence and facts of the case that a court of equity had no jurisdiction until appellee established its right at law, the decree of the court below is reversed and the cause remanded, with instructions to the court below to ■dismiss the bill without prejudice to appellee’s right to bring a suit at law to establish a nuisance and also in equity after such right is established. Decree reversed, with directions.