Wilson v. Bondurant

Wall, P. J. The bill was predicated upon Sec. 4 of the act approved June 4, 1889, (Sess. Laws 1889, 116,) and the question is whether the facts alleged present a case within that section. The first section of said act provides, that whenever any open ditch has been or shall be constructed by mutual license, consent or agreement of the owner or owners of adjoining or adjacent lands, either separately or jointly, so as to make a continuous line upon, over, or across the lands of said owners, or where the owner or owners of adjoining or adjacent lands shall, by mutual consent, etc., be permitted to connect a drain with another so constructed, or where the owner of lower lands has connected, or shall connect, a drain to a drain constructed by the owner or owners of the upper lands, then such drains shall be held to be a drain for the mutual benefit of all the lands so interested therein. Sec. 2 provides that no one of such owners may authorize another person to connect with such drain without consent of all parties interested, and any drain so connected without such consent shall be unlawful, and any person interested may, by bill in chancery, compel such drain to be filled and may also have his action for damages. Sec. 3 provides that none of the parties interested in such continuous drain may fill the same or in any manner obstruct the flow of water therein, and that the license, consent or agreement mentioned need not be in writing, but may be by parol and may be inferred from acquiescence of the parties in the construction of the drain. Sec. 4 reads thus: “ This act shall not be held to apply to any cause now pending in any court of this State nor deprive any party of the right he may have under existing laws to revoke any parol license heretofore granted to construct any such drain upon, across or over his lands provided such right be exercised and suit commenced to enforce the same within one year from the time this act takes effect; but if not thus exercised and suit brought within one year, he shall be forever barred from thereafter revoking such license.” What is meant by the expression here used, “the right he may have under existing laws to revoke any parol license heretofore granted to construct any such drain upon, across' or over his lands ? ” Referring to the first section, it will be seen that when two or more drains are connected in either of the ways mentioned, so as to be continuous, then such connected drains shall be held to be a drain for the benefit of ail the lands interested therein, and referring to the title of the act we find it reads thus: “An act declaring legal, drains heretofore or hereafter constructed by mutual license, consent or agreement, by adjacent or adjoining owners of land, and to limit the time within which such license or agreement heretofore granted may be withdrawn.” Construing it all together we are inclined to hold that the words, “ to construct any such drain,” etc., used in the fourth section, should be understood to refer to the subject-matter of the first section, and not to any different or other matter; "while these words taken alone are somewhat inapt for the purpose of designating a continuous drain formed by connecting several drains made by each owner on his own land, yet it is reasonably apparent that such was the meaning intended. Otherwise the act would have, or might have, a very harsh effect in making permanent and irrevocable what was before only temporary and revocable. Such a construction is not to be adopted unless very clear. The fourth section limits the right of revocation to one year from the time the act is in force, and requires “ a suit commenced to enforce the same,” within that period. What sort of suit is not stated, and it would be intended that the action should be appropriate for the purpose. It is not objected that the remedy by bill in chancery is inappropriate, and without deciding the point it may be assumed for the present case that it is the proper form of action. The question then remaining is, whether the facts alleged show a “ right under existing laws to revoke ” the parol license under which the "highway commissioners were permitted to connect with the complainant’s drain. Does it appear by the bill that there was here any occasion or necessity for a license to the highway commissioners to make such connection ? The bill is not definite upon the point, but it is conceded in the argument of plaintiff in error that it may be assumed that Bondurant and the commissioners were seeking an outlet for the water in the natural course of drainage. The pleading must be taken most strongly against the pleader, and in the^ absence of averment showing a state of case where the license of complainant was necessary, it is to be presumed it was unnecessary. The owner of the dominant heritage may drain the water from his land upon the low'er lands in natural course of drain, age, and while he may not create new channels in the lower fields, he may make such drains for agricultural purposes, on his own land, as may be required for proper tillage, though by so doing he may increase the flow in the natural channel. Peck v. Herrington, 109 Ill. 611. The rule applies to high, ways as well as to lands devoted to private uses. For such action on the part of the dominant owner no license from the servient owner is required, and in a case so arising there would be nothing to revoke. As it does not appear by the facts averred, that any license had been granted which by “ existing laws ” could be revoked, we are of opinion the bill was defective in substance and that the demurrer was properly sustained. The decree will be affirmed. Deoree affirmed.