Canal Commissioners v. Village of East Peoria

Mb. Justice Burroughs delivered the opinion of the Court. The appellant presented to the court below its bill of complaint praying among other things for a temporary injunction against the appellee, and upon that court denying the temporary injunction and dismissing the bill for want of equity appearing on the face thereof, the appellant brings the cause to this court, and urges as grounds for reversal that the court below erred in dismissing the bill without a hearing on the merits, and that as the bill with its amendment and affidavits disclosed a good cause for an injunction as prayed for, and the cross-motion to dismiss same, like a demurrer, admitted all the facts well pleaded in the bill, the court ought not to have dismissed it. The claim made in the bill, With its amendment, is that the appellee was making and about to complete, a new channel for a stream known as “ Farm Creek,” so as to carry the waters thereof and of its tributaries and the surrounding country through said new channel into the Illinois river, instead of allowing it to go through the natural channel as heretofore, the new point of discharge being near the appellee village; and that the effect of this change, if not prevented by injunction, would be that said waters, discharging through the new channel, would bring with it a large quantity of debris, sediment, silt, sand, soil and other alluvial mattei’, and thereby create a bar in the navigable channel of said river at the said point of discharge, preventing the navigation of said river and creating a public nuisance. There is no allegation in the bill or its amendment, that a larger quantity of water with its accompanying sand, soil, sediment, debris, or other alluvial matter, would be discharged through the new, than before flowed through the natural channel, nor any facts averred that show the obstruction to" navigation would be any greater by reason of the discharge of the same throught the new, than was formerly occasioned by the flow through the natural channel. The appellee, although it had answered the bill, closed the same as follows : “And forasmuch as the said complainants have not by their said bill set out such a state of facts as in a court of equity entitles them to any relief, * * * this respondent prays that it may have the same advantage as to said bill as it might have had or taken by way of demurrer, plea or exception to the same for the many errors, uncertainties, and other imperfections therein contained.” The question of practice raised, we think, has, in this State, in the case of Winkler v. Winkler, 40 Ill. 179, and cases subsequently decided by our Supreme Court, been settled to be, that whenever the court is called upon to adjudicate upon the bill, and it appears to it that on the face of the bill there is no equity in it, and no sufficient grounds disclosed in it why a court of equity should interfere, the bill will be dismissed. Edwards v. Beaird, Breese, 70; State Bank v. Stanton, 2 Gilman, 352; Puterbaugh v. Elliott, 22 Ill. 157; March v. Mayers et al., 85 Ill. 177. We think the main question upon which the correctness or incorrectness of the decree entered by the court below in this cause turns, is, does the bill rvith its amendment show a state of facts from which the court could see that the acts of the appellee sought to be enjoined would most likely produce the nuisance claimed ? The admission of the facts well pleaded in the bill, by the cross-motion of the appellee, does not carry with it the admission of the inferences of those facts, or of the law as set forth in the bill by the pleader, but this court must be able to say from the law as it is, when applied to the facts well pleaded in the bill, that the effect of those facts will most likely be such that it Avould be inequitable for the court not to give the complainant equitable relief. And in considering such facts well pleaded, the court must construe the pleading most strongly against the pleader; and also consider all matters of fact which the court must take judicial notice of. In this cause the court must take judicial notice that “ Farm Creek,” in its natural channel, emptied its waters, and those of its tributaries and of the country drained by it, Avith all its accompanying sand, silt, and other alluvial matter, into the Illinois river at a point not very far from the point of discharge by the proposed new channel; that the actual effect thereof, while tending to form bars that disturb navigation on the river at the point of discharge, yet never totally prevented such navigation, since the river would, in times of high water especially, clean out and Avash aAAray such bars; also that the appellee is a village incorporated under the general laAV of the State, and is clothed with all the powers and authority given such municipalities by our law, under which it is thus incorporated. We think the true rule that ought to govern courts in determining when to enjoin municipal authorities from making changes in the flow of water, so as to cause it to empty into the same natural watercourse as before, but at a different point, is that, when such authorities are, in so doing, acting in their best judgment for the benefit of their municipality, and so acting that if the work they are doing will be, when fairly considered, beneficial to such municipality, then such change of the flow of water will not be enjoined unless it will most likely produce a nuisance to those injuriously affected thereby. Hotz v. Hoyt, 135 Ill. 388, and the authorities cited therein. Other questions are raised by counsel in their briefs and oral argument in this court, but we think that inasmuch as the bill does not aver such facts as compel the court to conclude that most likely the proposed change of the channel of Farm creek by the appellee, as set out in the bill, will cause it to carry into the Illinois river more water, sand, silt, etc., than before, we do not think the effect will most likely be as claimed, and for that reason alone, the court below was justified in dismissing the bill for want of equity appearing on its face. We therefore will not discuss or determine the other questions raised by counsel. The decree of the court below is affirmed.