Bailey v. Heintz

Mr. Justice Wall delivered the opinion of the Court. Action on the case alleging that defendant unlawfully diverted the waters of a certain stream which naturally flowed across his land so that said waters were thrown upon the land of plaintiff whereby the same was damaged, etc. Trial by jury; verdict for plaintiff $2,000, and judgment thereon, from which the defendant has appealed. The important question of fact was whether the obstructions which defendant placed in certain channels of the stream (which channels he claims had been abandoned so that what he did merely resulted in the retention of the deposits thrown upon his land) was the substantial cause of the overflow of which the plaintiff complained. It is not very apparent that the defendant was responsible for all the damage sustained by plaintiff, or for any considerable part of it, but as the case must be tried again no opinion need now be expressed upon that point. Conceding all that was urged for plaintiff in this respect it is clear that the damages assessed are excessive. The entire value of the plaintiff’s property was from $1,500 to $2,000, according to his proof. The overflow complained of was for the two seasons preceding the trial, and the loss of the crops of fruit, etc., did not exceed two or three hundred dollars per annum. In view of the size of the tract, three acres, of which two were devoted to corn and other such crops, and of the character of the improvements this estimate of damage must be considered very high. "W e think the plaintiff could recover only for such damages as had accrued prior to the bringing of the suit. If the act of defendant was unlawful and caused a nuisance the law will not regard the structure as permanent. Schlitz Brewing Co. v. Compton, 142 Ill. 511. The assessment here was for the full value of the property. Even if prospective damages were allowable, such a figure would be unreasonable and exorbitant, as the plaintiff has not been deprived of the whole property, and will not be in any event. On the contrary, if the process of filling by deposits from the annual overflow shall be continued, the land will in a very few years be more valuable than it was before. In no view of the case, as shown by the present record, can the legal damages be as great, or approximately so, as allowed by the verdict. The judgment must therefore be reversed and the cause remanded.