Davis v. Commissioners of Highways

Per Cueiam : We have carefully examined the evidence in this case, and while upon some of the points it is somewhat conflicting, yet we think the finding of the court, as embodied in the foregoing statement, is sustained by a clear preponderance of the evidence. On the hearing a plat was put in evidence, which shows the highway, the open ditch constructed in the highway, the location of the drain, and the natural flow of water from the east half of section 13 across and along the highway. The starting point of the tile drain constructed by the complainants, as shown by the plat, was near the south-west corner of the east half of seclion 13. Prom that point it runs in a northeasterly direction, crossing the highway at a point designated “B.” Prom thence the tile drain forms a circle on the„Bedinger land, crossing the highway again at point “G.” Prom this point a circle is made on the east half of section 13, intersecting the west side of the highway, opposite the Belleville land, where a culvert had been constructed across the road, for the purpose of carrying the water .east across the highway on the Belleville land. Thus far the tile was constructed on a route where the water naturally flowed, but when the complainants came to the west side of the road, opposite the culvert, they did not follow the natural flow of the water across the road on the Belleville land, but left the route where, the water naturally flowed, and cut their drain in a diagonal direction across the road, running in a northeasterly direction until they intersected the open ditch on the highway, running north. At the point where the tile drain enters the open ditch, as appears from the evidence, the surface of the ground is some three feet higher than the surface of the ground is twenty-five feet further south, in the natural water channel. No objection was ever interposed to the construction of the tile drain across the highway, or along the line of the highway, so long as complainants followed a route or channel where the water naturally flowed, but the commissioners claim that complainants have no right to carry the water out of its natural channel and empty it into an open ditch in the highway. In Peck v. Herrington, 109 Ill. 611, in considering the rights and duties of adjoining land owners,, and the rules which should govern them in draining their lands, we held that the owner of the dominant heritage or higher tract of land has the right to have the surface water falling or coming naturally upon his premises, pass off through the natural drains upon and over the lower or servient lands; and the owner of the dominant heritage may, by ditches or drains, drain his own land into the natural .and usual channel, even if the quantity of water thrown upon the servient heritage is thereby increased. In Young v. Comrs. of Highways, 134 Ill. 569, where an effort was made by the commissioners of highways, in improving the highway, to divert water from its natural channel and turn it upon the land of an adjoining land owner, adopting the principle decided in Peck v. Herrington, we held that the commissioners have no right or power to collect and carry a quantity of water along a highway which would naturally drain off in another direction, and discharge such accumulated water on the farm of an adjoining land owner. Indeed, the legislature, following the principle announced in Peck v. Herrington, in 1885, in an act to provide for drainage for agricultural and sanitary purposes, in section-4 of the act provided: “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 water-course or into any natural depression, whereby the water will be carried into some natural water-course or into some drain on the public highway, with the consent of the commissioners thereto.” Under the principle established in the two cases cited and the section of the statute supra, it is plain that the complainants had the right to drain their lands across or along the highway, following the natural depression of the surface, whether the commissioners consented or not. So long as the land owner bordering on a highway follows a natural depression in draining his lands, the commissioners have no power to interfere; but when an attempt is made to divert the water from its natural channel, and cast it upon the highway out of its .natural course, we think the commissioners, in the exercise of their powers to take charge of, keep in repair and improve, may prevent such action oh the part of the land owner. It is true that the ditch into which the complainants sought to drain their lands had been constructed, or allowed to be constructed, by the commissioners, or at least they had allowed it to remain in the highway; but if, in their opinion, an increased flow of water would render the ditch more dangerous for public travel, we think they had the undoubted right to prevent any person from conducting water from its natural flow and turning it into the ditch. Eelianee is placed on section 71 of chapter 121 of the statute. This section of the statute provides a penalty for obstructing a highway by placing anything thereon, or by digging ditches, «etc., and authorizes the commissioners to remove the obstruction and fill up the ditches, “excepting ditches necessary to the drainage of an adjoining farm, emptying into a ditch upon the highway.” Where a ditch has been constructed in the highway, and the water from an adjoining farm naturally flows into the ditch and is carried off, under the statute the commissioners would be prohibited from filling it up or preventing the adjoining land owner from using it. But that statute has no application to a case of this character. Here the ditch had not been constructed or used as a means to carry off water from complainant’s lands, but, on the other hand, in order to reach the ditch the complainants were compelled to divert the water from its natural course. This is conceded by counsel in their argument, where they use the following language: “The tile drain followed the natural depression or channel of the slough in its various windings until it reached the west side of the road, opposite the point where it emptied into the ditch. At this point, instead of running directly across the road, (a culvert had been put into the ancient channel across the road,) it angled northward, and on the east side of the road the tile emptied into the ditch, about fifteen feet north of where the ancient crossing had been.” Attention has also been called to section 6 of chapter 121 of the act in relation to roads and bridges, which is as follows t “Whenever the commissioners are about to lay a tile drain along a public road, they shall have power to contract with the owners or occupants of adjoining lands to lay larger tile than would be necessary to drain the road, and to permit connection therewith by such contracting parties to drain their lands.” Under this section it would doubtless be the duty of the commissioners, in ease they determined to lay a tile drain along a public highway, to allow adjoining land owners to connect with such drain by paying such sum as the enlargement of the tile drain would cost in order to carry off the additional water which might come from the adjoining land owner. But here the commissioners were not taking any steps to tile-drain the highway, and the section can have no application whatever to the questions involved. The judgment of the Appellate Court will be affirmed. Judgment affirmed.