Wilmington Water Power Co. v. Evans

Mr. Chief Justice Macruder delivered the opinion of the court: The theory of the appellant is, that the arbitration in 1872 between the Kankakee Company and Patrick Judge resulted in an award good at common law; that, upon the acceptance of the award by both parties, the Kankakee Company acquired a vested right in the land of Patrick Judge amounting to a perpetual easement to overflow his land to the extent originally overflowed; and that the Kankakee River Improvement Company and the Wilmington Water Power Company, as successors of the Kankakee Company, were entitled to exercise the rights, privileges and franchises of the latter company. The appellant makes the following statement in its answer: “The Kankakee Company, and its successors in title, have always considered, that the award of said board of arbitrators, accepted by the parties ttiereto and never objected to or appealed from, vested in said Kankakee Company a perpetual easement to overflow the land described in the bill of complaint to the extent originally overflowed by the building of said dam No. 4, and gave to said Judge a claim for compensation equal to said award against said Kankakee Company.” If it be conceded, that a perpetual easement to overflow the land of appellees was thus vested in said Kankakee Company, the right to exercise the rights, privileges and franchises of the Kankakee Company, including the right to such easement, did not pass to the appellant, the Wilmington Water Power Company. The Kankakee River Improvement Company was organized on February 5, 1880, under the general Incorporation law of this State; and the only object of its organization was “to improve the navigation and develop the water power of the Kankakee and Iroquois rivers, as successors by purchase of the corporate franchise of the Kankakee Company.” The deed, made to the Kankakee River Improvement Company on April 8, 1880, by the trustees, under the decree of foreclosure, conveyed the corporate franchises and privileges with the rights of way of the old Kankakee Company. But, by the judgment entered on June 14, 1883, in the quo warranto proceeding, the Kankakee River Improvement Company, as purchaser of the franchises of said Kankakee Company, was absolutely and forever ousted, barred and excluded from all the rights and privileges conferred by the act of February 15, 1847, and was thereby excluded from any further exercise of such franchises and rights and privileges; and it therefore had no power to sell or transfer them in 1885 to appellant, the Wilmington Water Power Company. It could not transfer what it did not legally own or possess. A franchise is generally understood to be a special privilege emanating from the sovereign power of the State, owing its existence to a grant, or to prescription presupposing a grant. (Board of Trade v. People, 91 Ill. 80). The appellant was organized in November, 1885, long after the judgment of ouster had been entered. Its officers and stockholders were in large part the same as those of the Kankakee River Improvement Company, and it was affected with knowledge of the fact, that the latter company had been ousted from all the rights and privileges and franchises of the old Kankakee Company. The appellant stands in precisely the same position as though the Kankakee Company had never existed; whatever rights it had as against appellees when the bill in this case was filed must depend upon its own articles of incorporation, and what it has done under the same. The object of its incorporation was to “acquire and hold water power on the Kankakee river within the State of Illinois,” etc. In the exercise of the power thus conferred upon it by its charter, it has made no attempt to acquire the right to overflow the land of the appellees. It has not acquired such right by condemnation, or by agreement with the appellees, or otherwise; and, as it did not acquire the same as successor to the Kankakee River Improvement Company, we are unable to see, that it has any authority to continue the flooding of the land of the appellees. But if it be true, that the interest, acquired.by the Kankakee Company through the award and its acceptance by Patrick Judge and the company, passed to appellant, as the successor of the Kankakee Company, yet it does not follow, that such award and its acceptance vested an easement in the Kankakee Company to overflow the land of the appellees. Neither the agreement to submit the question of damages to arbitrators, nor the award itself of the arbitrators, was in writing. The award was an oral one. It may be true, that, as a general rule, a parol submission to arbitrators is good at common law. (Smith v. Douglass, 16 Ill. 34; Phelps v. Dolan, 75 id. 90). It is claimed for the award by the appellant, that it vested in the Kankakee Company the right to overflow the land of Patrick Judge, the ancestor of the appellees. Such right to overflow is an interest in land. It is well settled, that a parol license or agreement giving such right is within the Statute of Frauds, and void. Such a license is revocable at any time. (Tanner v. Volentine, 75 Ill. 624). In Woodward v. Seely, 11 Ill. 157, this court held, that a license perpetually to overflow the land of the party granting such license would create an interest in the land, and therefore that the license could not be granted by parol. A license coupled with an interest in land must be in writing. The doctrine of the Woodward case was subsequently endorsed and adhered to in the case of St. Louis Nat. Stock Yards v. Wiggins Ferry Co. 112 Ill. 384. It may be said, that the award here is not a parol license to overflow the land, and does not convey or purport to convey any interest in land. But even if it be regarded strictly as an award and not as a parol license, it is pleaded as a bar to the present suit, upon the ground that, by its acceptance by both parties, the Kankakee Company acquired a vested right in the land of Judge amounting to a perpetual easement to overflow his land. A submission and award should be in writing where a writing is required to pass the title to the thing in contest. (Smith v. Douglass, 16 Ill. 34; 2 Am. & Eng. Ency. of Law,—2d ed.—p. 543). An oral submission to arbitration and an oral award are valid, except where an instrument in writing is required to pass the title to the thing in dispute. A perpetual easement to overflow land being an interest in land which requires an instrument in writing to pass the title to it, the acceptance of an oral award cannot be said to vest such an interest. “It may be laid down as' a general principle, that a person or corporation, entitled to acquire property for public use, must do so either by contract with the owner or pursuant to the statute conferring compulsory powers. If the mode of acquiring property by contract is attempted, the same rules in general apply as in cases of private individuals acquiring property for private use. The Statute of Frauds applies to all parties and to transfers for all purposes. An interest in land cannot be transferred by a mere oral agreement. It can only be done pursuant to such formalities as are required by the Statute of Frauds. A mere oral consent or license, therefore, to use or occupy land for any purpose, for which it might be taken under compulsory powers, does not confer any permanent right or interest in the land, but is revocable at any time at the pleasure of the licensor.” (Lewis on Eminent Domain, sec. 298). Counsel for appellant say, that the charter of the Kankakee Company, requiring the parties to agree if possible before instituting court proceedings to determine the question of compensation, but not requiring such agreement to be evidenced by writing, takes all the cases arising under this special charter from under the Statute of Frauds, and gives the same force and efficacy to an oral agreement made pursuant to this private charter, as would be given to a written agreement. We cannot agree with this view. The sixth section of the act of 1847, provided, that, whenever it should become necessary for the company to enter upon and take possession of any land necessary to the erection and maintenance of the slack water navigation in said rivers, and for making the improvements authorized by said act, said land should be “paid for by said company at such prices as might be agreed upon by said company with the owner or owners thereof.” Here, the company did not pay the price which was agreed upon. The consideration for the right to overflow the land of the appellees was the payment of §3400.00; and the right of overflow was, by the very terms of the agreément, dependent upon the payment of the money. The case of Rockland Water Co. v. Tillson, 69 Me. 255, was a case, where a receipt in full for damages had been given by the land owner, and there the court held, that the Statute of Frauds under such circumstances would not avail him. Here, there was no receipt in full for damages. As the award was void, under the view advanced in the answer that the Kankakee Company thereby acquired a vested right to a perpetual easement to overflow the land, it is unnecessary to consider the question, whether an action at law upon it was barred by the Statute of Limitations or not. Nor do we consider, that appellant has made out a title to the easement by adverse possession of twenty years, or that the appellees, in view of their minority and want of notice in regard to repairing said dam, were guilty of laches. A question is made as to the jurisdiction of a court of equity in a case like the present. A bill in equity will lie to abate a mill-dam, unless the damages occasioned by the flowage are paid. (Lewis on Eminent Domain, sec. 619.) In Smith v. Olmstead, 5 Blackf. 36, a bill in chancery was filed to have a dam abated, which had been built across a certain creek and caused the complainant’s land to be overflowed; and it was there held, that, if a mill-dam be erected without authority, a party, whose land is overflowed in consequence of the dam, may file a bill in chancery to prevent a continuance of the injury, where his right to complain has been established at law. In the case at bar, the right to complain has not been established at law, but the amount of the damages caused by the overflow has been fixed at a certain amount by arbitration. The fixing of the damages by arbitration and the award are as conclusive as to the amount of such damages as though they had been established in a proceeding at law. The decree in this case provides, that the injunction shall be dissolved provided the appellant shall pay the unpaid portion of the damages fixed by the award with interest thereon. In Ackerman v. Horicon Iron Manf. Co. 16 Wis. 151, it was held, that, where the amount of compensation to be paid to the owner of lands, flowed by a mill-dam, by reason of such flowage and for the right to flow the same, has been determined pursuant to the charte-r or law authorizing it to be erected and maintained, and the owner of such dam neglects to pay it, a court of equity will abate the dam at the suit of the land owner, if the owner of the dam will not pay the award. It was also there held, that the remedy of the land owner at law upon the award or assessment where it remains unpaid, or in trespass for damages, is inadequate, and he can only obtain full relief in a court of equity. In the same case the Supreme Court of Wisconsin said: “The arbitrators chosen for that purpose awarded him (the land owner) the sum of $884.14, which amount * * * the company has not paid nor offered to pay, and therefore he asks that the dam be abated. We are really at a loss to know, upon what principle of law or morals the company claims the right to overflow land not belonging to it, without paying the damages resulting from such flowage, according to its charter. * * * The claim that is really made here, in view of the allegations of this complaint, that the company can keep up its dam and overflow land not belonging to it, without paying such damages therefor as may be awarded by arbitrators or juries, is one not to be discussed in a government of law and constitutions. The company may maintain its dam upon condition that it pays parties, where lands are overflowed, such damages as may be awarded. In other words, it must make compensation according to its charter or take down its dam. A citizen is not to be told when he comes into a court of equity asking relief from a permanent injury or total destruction of the use of his property, that he should bring suit on the award, or issue execution and obtain compensation for his damages if he is able. It is the duty of the company to pay the damages when they are ascertained and determined. * * And if it does not make this compensation, it can claim no immunity from such relief as a court of equity may award.” (Angell on Waters, sec. 445). The decree of the circuit court is affirmed. Decree affirmed.