Broadwell Special Drainage District No. 1 v. Lawrence

Mr. Justice Vickers delivered the opinion of the court: Before proceeding to a consideration of the questions of law involved, important matters of fact require attention. This being a chancery case, the facts are open for consideration here notwithstanding the affirmance of the decree below by the Appellate Court. Much testimony was heard at the trial directed to three questions: (1) Did the drain which appellant put in, connecting what is called the south 80, take water from the Lawrence ditch and convey it to the drainage ditch? (2) Was the Lawrence ditch inside or outside of the boundary-lines of the drainage district? (3) Did the water in a state of nature flow off the south 80 north toward the drainage district? With respect to the first question, appellee insists upon an affirmative and appellant upon a negative answer thereto. If appellant is right in his position upon this matter'of fact, appellee has no standing whatever in a court of equity to enjoin the maintenance of appellant’s tile drain. We do not deem it at all necessary to go into a critical examination of the evidence in order to determine where the preponderance is upon this question. If the water from the Lawrence ditch did not flow through appellant’s tile to the drainage district tile it is because it did not get into it'. Appellant’s tile was laid with the fall toward the district drain. It was put in for the express purpose of draining the south 80, and once the water from the Lawrence ditch was in the tile, no proof is needed to show that it would run by force of gravity with the incline of the tile and finally be discharged into the district tile at the point of connection. As a circumstance tending to prove that water from this ditch did not pass into the tile, appellant proved that his drain was laid with sewer tile at the point where it crossed under the ditch, and that the flanges, sides and top of the tile for the space of about six -feet were covered with cement. A few witnesses expressed the opinion that water from the ditch did not pass into the tile in any considerable quantities. On the other hand, a large number of witnesses' who had made a personal inspection of the premises testify to facts from which the conclusion is irresistible that a very large quantity of the water coming down the Lawrence ' ditch passed into this tile. We select the following excerpt from the testimony of E. W. Bates on this point. He says: “Was down there last Monday, September n, 1905. At the east side, where we commenced, there was four or five inches of water in the ditch, four or five feet wide. As we went west the water was flowing slowly till we came to where the tile crossed the ditch. Then the water went down in the ground. There was a hole. I could hear it running in. There was ño water in the ditch below the tile. That was where the tile, in this lawsuit crosses. It was as dry as any of the land.” Evidence of the same general character was delivered by a large number of other witnesses, among them Read, Braucher, Shockey, Zeter and others. Aside from the direct testimony of those who saw the premises, a number of persons experienced in tile draining expressed the opinion that the water from the open ditch would naturally percolate through the sides of the ditch, follow openings made by the muskrats and crawfish and pass into the tile. We can reach no other conclusion under the evidence than that large quantities of water from the Lawrence ditch did, in fact, by means of appellant’s tile drain, pass into the drainage district tile. Upon the question whether the Lawrence ditch was in or out of the drainage district, without going into the' details of the testimony our conclusion is that while it was evidently very near the line it was on the south 8o-acre tract, and therefore outside the district. In reaching this conclusion we place much reliance on the testimony of Daniel S. Braucher, who is a surveyor and civil engineer of fifty years’ experience. He made a survey of the lines and testifies that the ditch is on the south 80. No other person surveyed the lines. Witnesses who expressed opinions as to the location of the line between the two tracts based their testimony largely upon observations made by sighting through from certain trees which were assumed to be on the line. Aside from the inherent uncertainty of testimony based on such observations, it was shown in rebuttal that the trees supposed to be on the line were, in fact, some twenty feet off the line. ■ Whatever the effect of it may be in the final disposition of' the case, it must, we think, be accepted as a fact that the Lawrence ditch was outside the drainage district. • The third disputed question of the fact is whether in a state of nature the water which now comes down the Lawrence ditch flowed westerly in the general course of such ditch or whether it flowed in a north-easterly direction toward the basin known as the “Lawrence lake,” on the north 80, and thence out of the lake toward the north in the general direction of the place where the drainage district tile is now located. Appellant asserts that in a state of nature the water from the south 80, or the greater portion thereof, flowed toward the north or north-east, and he contends that in tiling from the- south 80 north he is only causing the water to go in the direction of the natural drainage, which he asserts he may lawfully do. To understand the actual situation as it is disclosed by the evidence it is necessary to first look at conditions as they were prior to 1874 and before the Lawrence ditch was made. It is shown by a survey made by John Zeter that the general course of the surface water upon appellant’s land was from the southeast toward the north-west. From the levels which Mr. Zeter made, it appears that there is a natural fall of about three feet from the north-east corner of appellant’s south 80 to a point near the east side of the Lawrence lake. The evidence shows that water coming down this natural depression flowed into the lake, and when the lake was full the water escaped on the north side and flowed north in the direction of the Lawrence residence. There is an overwhelming preponderance of the evidence that the middle or north 80 of the Lawrence land was lower than the south 80. There can be no serious contention, under the evidence, that the water falling on much the larger part of the south 80, and coming on to it through the swale from the lands southeast of it, did not find its outlet toward the nórth and north-east. As a result of the large quantity of water thus thrown upon the north 80 this tract was rendered marshy and much of it unfit for cultivation, and besides, a large quantity of water in certain seasons of the year stood on this land near the Lawrence residence. This was the condition of these lands prior to 1874. At that time it does not appear that any tiling or ditching had been done on either 80. About the year 1874 the owners of these tracts and the persons through whom appellant obtained his title constructed what is known in this record as the “Lawrence ditch.” This ditch, as we have seen, was constructed on the south 80, near the north line of said tract, and it runs for a distance of one-half mile, or the entire length of the 80, in a westerly course, as shown on the plat. After passing off of appellant’s land at the north-west corner of the south 80 the ditch runs north-west- and finally empties into the outlet of the drainage district. When this ditch was constructed the dirt was thrown on the north side for the purpose of forming an embankment to prevent the water from overflowing to the north on the other 80, where it had formerly gone. The effect of constructing the Lawrence ditch was to divert the water from a natural watercourse and cause it to pass through this artificial channel in another direction. A large number of witnesses testify that the water coming upon the south 80 flows' to the north until it is intercepted by the Lawrence ditch and the embankment on the north side of the ditch, and thus is carried away by this ditch, but for the existence of which there is no doubt, under the evidence, that the water falling upon the south 80, as well as the water that comes from the south-east down the old swale, would flow on to appellant’s north 80 and on down north toward the tile of the drainage district. In other words, it must be accepted as a settled fact, under the evidence in this record, that appellant’s south 80 is the dominant estate and the north 80 and the other lands lying to the north thereof are the lower, and consequently the servient, estates. Assuming the conclusions we have reached in regard to the disputed questions of fact to be supported by the weight of the evidence, we will proceed to express our views as to the legal rights of the parties under these facts. Appellant relies on the common law rule established in this State, that the owner of the dominant heritage has a right to have the surface water falling or coming upon his land pass off over or upon the land which is the lower or servient estate. The rule established by numerous decisions of this court is, that the owner of the dominant heritage may by ditches or drains collect the surface water falling upon his estate and by such ditches or drains conduct the water into a natural water channel, even if by so doing the quantity of water cast upon the servient heritage is thereby increased. This rule has been regarded as settled in this State ever since the decision in Peck v. Herrington, 109 Ill. 611, and the rule has often been applied since. Lambert v. Alcorn, 144 Ill. 313; People v. Drainage District, 155 id. 45; Pinkstaff v. Steffy, 216 id. 406; Fenton and Thompson Railroad Co. v. Adams, 221 id. 201; Riser v. Village of Gross Point, 223 id. 230. Soon after the decision in Peck v. Herrington was announced the legislature passed the Barm Drainage act, section 4 of which is, in substance, the embodiment, in statutory form, of the law as declared by this court in that case. That section of the statute 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 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; and when such drainage is wholly upon the owner’s land he shall not be liable in damages therefor to any person or persons or corporation.” See Lambert v. Alcorn, supra. Conceding the facts to be that appellant’s south 80 acres is the dominant heritage and that the lands lying to • the north are the lower or servient estates, and that in a state of nature the drainage of the south 80 was-north and northeast through the old channel, appellant contends that under the rule laid down by this court and declared by the legislature, as above pointed out, he has the right to connect such dominant estate, by means of tile, with the drainage tile, and that in so doing he is only exercising the rights assured to him under the law. If appellant and his grantors had never abandoned the old water-course by the Lawrence ditch diversion we do not see what answer could be made to appellant’s position. But we are of the opinion that when the owners of the dominant heritage, with the acquiescence of the servient owners, diverted the water from its natural course and established an artificial channel, through which the water has had an unvexed and uninterrupted flow for more than twenty years, mutual and reciprocal rights have been acquired by prescription exempting appellant from the duty of restoring the water to its original course and forever releasing the servient estate from the burden of the easement which once existed in favor of the dominant estate to drain its surface water upon the lower heritage. The above proposition is, we think, supported by authority. In Jones on Easements (sec. 808) it is said: “If a riparian proprietor changes the natural flow of the stream, other proprietors favorably affected by the change may acquire an easement in the new water-course by prescription, so that the flow of the water cannot be changed back to its original condition. Thus, if one diverts a stream into a new channel, in which it continues to run, with the acquiescence of the other proprietors affected by the change, for so long a time that new rights may be presumed to have accrued, the stream cannot be returned to its former channel to the injury of such other proprietors. If the artificial channel has been made to serve as a permanent channel and the flow of the water has continued for the period of prescription, owners of land through which it flows may acquire the right to use the artificial channel as if it were a natural stream.” See, also, Gould on Waters, secs. 225, 340. The case of Mathewson v. Hoffman, 77 Mich. 420, (6 L. R. A. 349,) is a decision which we regard as in point on this question. It is said by the court in that case that “the exclusive enjoyment of water in a particular way for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title against a right in any other person which might have been, but was not, asserted. This rule must be reciprocal, and one who has taken the water from the original channel and has continued to divert and enjoy it for a period beyond the statutes of limitations as to real actions, cannot afterwards be permitted to restore it to its original state when it will have the effect to destroy or materially injure those through or by which it formerly flowed.” In -Smith v. Youmans, 96 Wis. 103, (37 L. R. A. 285,) the decision is based on the same principles. In Belknap v. Trimble, 3 Paige, 577, it was held that the rule must be reciprocal; that a proprietor of land at the head of a stream who has changed the natural flow of the waters and has continued such change for more than twenty years, cannot afterwards be permitted to restore it to its natural state when it will have the effect to destroy the mills of other proprietors which have been erected with reference to such change in the natural flow of the stream; and the same rule has been re-affirmed in later New York cases. (See Lampman v. Mills, 21 N. Y. 505; Roberts v. Roberts, 55 id. 275.) It is also supported in Delaware by Delany v. Boston, 2 Harr. 489, and in Vermont in Woodbury v. Short, 17 Vt. 387; 44 Am. Dec. 344. In the Vermont case it was held where the owner of a stream diverts it to a new channel and continues such diversion so long that rights have been acquired with reference to the changed condition, such party cannot change the stream back to its original course; and this rule has been re-affirmed in the later case of Ford v. Whitlock, 27 Vt. 265. Washburn, in his work on Easements, (pp. 313-315,) states the general principle underlying all these cases, as follows: . “Where one who owns a water-course in which another is interested or by the use of which another is affected, does or suffers acts to be done affecting the rights of other proprietors whereby a state of things is created which he cannot change without materially injuring another who has been led to act by what he himself had done or permitted, the courts often apply the doctrine of estoppel, and equity, and sometimes law, will interpose to prevent his causing such change to be made.” These cases all relate to the diversion of water in running streams, except the Wisconsin case, which concerned Lake Beulah; but we perceive no reason, on principle, why the same rule should not be applied to what are called surface water channels, especially in view of the rule established in this State that, so far as the relative rights of the dominant and servient owners are concerned, there is no difference between what are called running streams or water-courses, as the term is understood at common law, and surface water, which flows in a regular channel only at stated periods. Gillhan v. Madison County Railroad Co. 49 Ill. 484; Gormley v. Sanford, 52 id. 158; Peck v. Herrington, supra; Chicago, Peoria and St. Louis Railway Co. v. Reuter, 223 Ill. 387. Applying the principles above announced to the case at bar we have this situation: Appellant owns the dominant estate. Prior to 1874 there was a natural water-course carrying the water, or the greater portion thereof, down north on the lands now in the drainage district. At that time the relative rights of the parties were to have the water continue to flow in its natural course. Under the law of this State appellant might, under the natural conditions, have collected the water falling or coming upon his dominant estate in drains or ditches and discharged it in the natural outlet, even though it might have increased the quantity of water upon the lower lands. He would not have been liable for any resulting damages. The owners of the lower lands could have enjoined the diversion of the water-course if a case of irreparable damage could have been shown. In this situation as to the property and the reciprocal rights flowing therefrom, the owner of the dominant estate voluntarily diverted the water from the natural course and into an artificial ditch, thereby obtaining better drainage for both the dominant and servient estates. This condition has been maintained for more than thirty years. The lower lands, that were once a marsh, have been reclaimed and in the bed of the old channel corn is grown. Can appellant now claim that because the water once, in a state of nature, passed off to the north, he may now re-assert the right to have such water again flow there and the lands below again re-assume the burden of an easement long since lost by abandonment ? To so hold would be contrary to sound reason, inequitable in the extreme and contrary to the established rules of law. If appellant has lost the right to re-open the natural channel and can no longer avail himself of the rights growing out of the natural situation of his land with respect to the flowage of the water to the north, he cannot accomplish the same thing, under the doctrine of Peck v. Herrington and the provision of section 4 of the Barm Drainage act, by putting in tile and collecting the water therein at another point in the open ditch and thus convey it to the lower heritage to the injury and damage of the lower estates. In other words, in our opinion appellant’s position in this case is precisely the same that it would be if the Lawrence ditch were a natural water-course and the natural outlet for the water on the south 80. In this view it is clear that appellant has no right, either under the rule established by the decisions of this court or under section 4 of the Drainage law, to divert the water from the open ditch into the drainage tile. Appellant contends that under section 42 of the Drainage law he has a right to connect his land with the drainage district tile, and that when such connection is made it is to be regarded as an application to be taken into the district. We cannot assent to this view. Section 42 of the Drainage law must be construed in connection, with section 4, above referred to. Section 4 permits, as we have seen, the owner to drain his land in the course of natural drainage and to discharge the water into a natural water-course or into a natural depression, whereby it will be carried to a natural water-course or into some drain on a public highway, with the consent of the commissioners. Section 42 permits the owners of land outside the district or in other districts to connect with the drains of a district on certain conditions as to assessments, etc. In our opinion this section does not contemplate that this right shall be exercised except by the owners of land the natural drainage of which is in the direction of the drains with which the proposed connection is to be made. It certainly was not contemplated that any owner of land, regardless of the topography of the country, should have the right to cut through natural barriers and connect lands with a drainage district which are in another watershed and in a state of nature have their drainage in an opposite direction. Appellant’s south 80-acre tract is not literally outside the basin of the drainage district, yet if, as we have sought to show, by the Lawrence ditch diversion he has lost the right to restore the old channel of the Lawrence slough, he cannot, under section 42, re-assert such right by connecting the waters of the slough by an artificial drain with the district. In other words, it would seem that a fair and reasonable construction of section 42 is, that it permits the drainage of only such lands outside the district as in a state of nature drained in the general direction of such district drains, otherwise, under the construction contended for by appellant, any land owner or owners, regardless of the natural location and drainage of their lands, would have power to compel a drainage district to admit their lands into the district, even thoug'h by so doing the entire system of drainage installed and paid for by the district would have to be discarded as insufficient and useless. Such cannot have been in contemplation when section 42 was enacted. But, regardless of this view, there is another conclusive reason why appellant cannot maintain this connection with the Lawrence ditch. As already shown, the water flowing down the old Lawrence slough or' swale, which has been diverted into the Lawrence ditch, is collected from numerous tracts of land lying south-east of the point of diversion. The lands so drained by the Lawrence slough and ditch are sections n, ig, 13 and parts of 14, 7 and 18, in town 18, range 3, and comprise many hundreds of acres. Even if appellant had lost no rights by the Lawrence ditch diversion, he could not, under section 42, have the right to connect these outlying lands with the drainage district. The owners of these lands are not making any application for admission into the district and their lands cannot be assessed for benefits. In no event can the water coming down Lawrence slough and into appellant’s ditch be turned into the drainage district tile. On this question the case of Dayton v. Drainage Comrs. 128 Ill. 271, is in point and conclusive against appellant’s position. In its essential facts that case is like the one at bar. There the land owner was seeking to connect his own lands with a drainage district. There, as here, the effect was to drain a large body of other outlying lands. In denying the owner the right to make such connection under section 42 of the Drainage law it was said (p. 277): “But the ditch the defendant is endeavoring to construct involves much more than the drainage of his own lands. Its effect will be to divert into the district ditches the drainage of large tracts of land belonging to other proprietors, but it will not bring those lands within the jurisdiction of the district or subject them to any of its burdens. That the defendant has no power to do, and as the owners of these lands are taking no steps in the premises, they are not brought within the provisions of section 42 of the Drainage act and cannot thereby be included in the district. The construction of the defendant’s proposed ditch therefore would give to large tracts of outlying lands all the benefits of the drainage system provided by the district without subjecting them to any of its burdens. It is very clear that such results are not within the contemplation of said section 42.” The decree in this case has carefully preserved all the rights that appellant seems to have in the matter of using the drains of appellee. We find no error in the judgment of the Appellate Court, and the same is accordingly affirmed. Judgment affirmed.