Tearney v. Smith

Mr. Justice Breese delivered the opinion of the Court: This is an appeal from the circuit court of Will county, to reverse a judgment recovered therein by Charles C. Smith, plaintiff, and against Michael Tearney, Peter Corbin, and Dennis Scanlan, defendants, in an action on. the case. The gravamen of the action was, the careless, improper, and negligent manner in which the defendants, as commissioners of highways of the town of Wilmington, cut and dug a drain, ditch, trench, and channel, and a grade and embankment, so near the premises of the plaintiff, and so unskillfully, as to cause the rain and surface water running from these ditches and drains into and upon the lands of the plaintiff, to their injury and to the injury of certain walls, fences, and ditches which plaintiff had made upon his premises to carry off the surplus water. The facts were sufficiently established that the unskillful and careless manner in which the defendants discharged their duty as highway commissioners, in this regard, inflicted a serious injury, but they insist, on this appeal, that as the land so graded and ditched had been theretofore condemned for the use of a highway, and all the damages assessed fully paid to plaintiff, all right of action is gone. It is claimed by appellants, where land has been regularly condemned for a public purpose, the compensation awarded as damages for such condemnation includes all the damages, present and prospective, direct and consequential, that would or could result to the land not taken in the construction of the improvement upon the land so taken for such public purpose. This proposition is the-, basis of appellants’ defense, and most strongly pressed upon our attention. It is true, some twenty years prior to the acts of which complaint is made, appellee being the owner of the land, he, with others, signed a petition for the establishment of the road in question; the road was laid out, appellee receiving such compensation as was then awarded him, whether for the value of the land actually taken or as damages to adjacent lands does not appear. By the condemnation of this land the public had an undoubted right to construct a highway over it, which was done in a mode and manner then deemed most expedient. In conformity with this action of the public authorities, appellee was at great expense in making ditches and drains to carry from his cultivated fields the surplus water. Appellee received compensation for those injuries, if any such were estimated, which it was then shown he must unquestionably suffer, but not for remote, possible, and uncertain injuries. It could not then be known that highway commissioners, regardless of private rights, and careless and unskillful in the conduct of their business, would, at a future time, years thereafter, be found in office, who, by ill-adapted artificial means, should inflict a grievous injury upon the proprietor of the adjacent lands. We think the principle. underlying this case has been often recognized and sanctioned by this court, and that is, the public has no right só to use its own as to injure another. This principle obtains, as well, it seems to us, to townships as to incorporated cities. The cases of Nevins v. Peoria, 41 Ill. 502, and Pekin v. Brereton, 67 id. 477, fully establish the principle that cities must exercise their rights in such manner as to inflict no avoidable injury upon an individual. As to the negligence of the defendants, the proof is sufficient. Intelligent men testified that, had the channels made by appellants been continued, or a ditch constructed along the road to the creek upon the west, or by connecting with appellee’s long-established ditch leading to this creek, by another ditch and at a reasonable cost, the highway would have been well drained and appellee’s premises uninjured. Appellee offered to pay one-half the cost of a ditch to the creek, but appellants declined to pay more than one-fourth the expense. There is no doubt, from the testimony, that appellants so constructed the grade of this road as to cause an injurious flow of water upon appellee’s premises, and which could have been reasonably avoided. The work of constructing or repairing a public highway is not a judicial, but a ministerial, act, and must be performed with a proper regard to individual rights as well as the public accommodation. Commissioners of highways are only in a very limited sense judicial officers; repairing a highway is not of that character. For the negligent performance of ministerial acts they are personally responsible if injury results to others. There are strong indications in this case of a want of that care which prudent men exercise in the management of their own concerns, and a seeming recklessness of plaintiff’s rights. Entertaining these views, we are of opinion the court properly disposed of the instructions asked on both sides. The judgment is affirmed. Judgment affirmed.