Dewein v. City of Peoria

Lacey, J. The grounds upon which appellant seeks a reversal in this case are that the court below gave improper instructions for appellee and admitted improper evidence on the part of appellee and refused to allow certain evidence on the part of appellant. We have examined the evidence in the case with much care and have come to the conclusion that there is such a lack of evidence on the part of appellant that the jury ought not to have found in his favor under any state of instructions and Avithout reference to the request of appellant to the City Council to put in the sewer complained of. The main burden of the appellant’s proof goes to show that there was more water in his cellar and premises after the completion of the grading of the street and the putting in the water pipe than there had been before, and the jury was asked to infer from this fact that the putting in the water pipe by appellee was the cause of the trouble. This kind of evidence at best is only slight proof, but when we come to consider the other evidence in the case, that all or nearly all the other property that laid west and north and higher than the surface of the street along and north of appellant’s residence was similarly affected by water Avith his, even the force of that eAddonce is destroyed. It seems that the soil along the side of the bluff in the neighborhood was of such a nature that in times of excessive rainfall it would fill with water and fill the cisterns and cellars in that neighborhood notwithstanding the great fail there was to the south. To such an extent did this take place that cisterns would be broken in by the great pressure and the weight of the water gathered around them and cellars would be filled. Of course water was all the time making its way down grade and the lower it went the more water would accumulate. Mr. Guyer, a witness introduced by the appellant, shows that the soil on each side is common clay and was full of water. He says: “ On one part of my lot I dug a cess pool and found water four feet from the surface.” Four feet would not be as low as the surface of the street, saying nothing about the water-pipe ditch. UI had water in my cellar before the improvements were made but not so much as since.” “ The bottom of my cellar is two or three feet higher than the surface of the street. Dewein’s place is a little lower than mine. From the Knoxville road on that high land clear over to Elizabeth Street there is a great deal of water in the ground and a good many cellars and cisterns have water in them; cisterns have been broken in with the surface water and privy vaults have been filled by surface water. My cistern that was broken was full. The surface water was then ten feet above the level of the street.” The theory is advanced that the water rose from below in the ditch into Guyer’s cellar by means of the law of capillary attraction. Such a theory as that is wholly inadmissible. His cellar was over ninety feet from the place where the water pipe was buried and there are no known laws of nature that would justify the belief in such result. The street in front of appellant’s house had a good fall to the east to the Knoxville road, and had a good level grade to that road, and does not appear to have been overflowed by water on the surface and none could possibly reach appellant’s premises from the surface on account of the intervening curb stone. Appellant’s house was ninety feet from the water-pipe ditch and evidently water percolated through the intervening clay if it reached there from the street at all, which it is likely it did. The tests showed that the street beneath the gravel was full of water as well as the intervening clay soil between it and plaintiff’s house, and all on about the same level. But other tests showed that in the water pipe ditch, at the Knoxville road, it was much lower. This shows that water did not run down along the water pipe very readily at that point, otherwise the water would have been as high at that point as above, barring the descent in the grade. It is more than likely that the filling up of the ravine west of appellant’s house, which he did very considerably, had a tendency to cause water to accumulate in his cellar. The ravine was sixteen feet deep, and would have a strong tendency to draw the water out of appellant’s lot for a considerable distance back toward his house, and perhaps drain it below the bottom of his cellar, and that may account for his cellar being dry theretofore. But when the ravine is filled up to the extent it was, it no doubt stopped the heavy drainage that it had before. The water did not appear in appellant’s cellar till 1S85, a year after this water pipe was put'in. The substance of the appellant’s complaint is that appellee, in making the ne.eded improvements along the street, necessarily loosened up the soil in its excavation by first digging it out and then restoring it, and made it a little easier for water to pass through it, and in consequence he has been damaged. We are of the opinion that the appellant has no remedy for such an injury as that. There has been no ditch left open; no drain • has been cut. The cases of Livingston v. McDonald, v. Ia. 160, and Mellor v. Pilgrim, 3 Ill. App. 476, in their facts, are not like those in this case. In each of these cases water had been collected by means of tile drains and flowed onto the lands of the plaintiff by that means. But suppose a ditch had once been dug and then filled up with the same soil, would the law notice any claim for damages for supposed injuries resulting from the fact that the soil, in the excavated and filled-up ditch, was a 'little more porous than before and allowed a little more water to percolate through it? Public policy and the good of society would preclude such rule. The rule announced in the two cases above, we understand to have been considerably modified by the case of Peck v. Herrington, 109 Ill. 611, the principles announced in which, if carried out to legitimate inference, would prevent recovery in this case. It will not be necessary to notice the other point in regard to appellee showing that appellant requested and promoted the laying of the water-pipe, damages to recover for which act he now sues. The evidence, we think, would not justify a jury in rendering a verdict in favor of appellant. The instructions given for the appellee, as applied to the evidence in the case, were not erroneous. The judgment is therefore affirmed. Judgment affirmed.