Chicago & Northwestern Railway Co. v. Hoag
90 Ill. 339
Ill.
1878
Check Treatment
Mr. Justice Sheldou

delivered the opinion of the Court:

That considerable damage resulted to appellee from the freezing upon his premises of water which flowed thereon from the water tank of the company, is established by the proof. , It appears, too, that the damage was sustained in consequence of the freezing and the detention thereby .of the Avater; that but for that, the Avater would have floAvM down and off the premises Avithout injury. It is thence claimed that the damage was not the proximate result of the defendant’s act of turning the water upon the 'land, but of the freezing of the water, Avhich was the-act of God. But to claim exemption from liability for the consequeueeam£_snch an act of nature, it must be such as could not have been foreseen and prevented by the exercise of any ordinary care and prudence. Nugent v. Smith, 17 Eng. Rep. 330, L. B. 1, C. P. D. 423; Panton v. Norton, 18 Ill. 496. Appellant must be held to have known that the water would freeze upon appellee’s land at the time it Avas turned on it, it being a fact occurring in the Course of nature, and be chargeable Avith the consequences resulting from the known action of frost in freezing water in combination with appellant’s own act. The injury was one which might reasonably and naturally have been expected to result.

A point is made by appellant as to the ownership of the lot in question. It is described in the declaration as “ lot 9 of block 31, etc., except such part thereof as is now owned and occupied by the said defendant for a right of way.” Neither party introduced any deed or other written evidence of title; and it is asserted that the ground upon which appellee’s storehouse stood having been occupied by the railroad company for over twenty years preceding the building of the storehouse there by appellee—both parties claiming title by occupancy— the .railroad company by its embankment—the company must be held prima facie to be the owner thereof. The possession of the company would not extend, and be evidence of title, beyond its actual occupancy. The evidence shows, that about two years previous to the time of the damage complained of, appellee had removed this store-house from another place upon the lot to a place nearer the railroad embankment; that at one spot the embankment was dug out some three or four feet, and that this building was so placed that its southwest corner stood at or within this excavation and near to the point where the box or chute, which conducted the water from the tank over the embankment, opened upon the lot. Had the evidence shown that this corner of the store-house stood within the excavation made, and upon ground which had been covered by the embankment, and that the building and its contents suffered the damage solely in consequence of a portion of the building standftig-up0m that ground, then this claim of title would be of avail, and we should say there could be no recovery of damage in respect of the store-house. But we do not understand the evidence as presenting such a case, but as warranting the inference that the damage would have been suffered if the building had stood elsewhere upon the lot. There is no instruction raising any question upon this point.

It appears, from the evidence, that the whole of the water Avhich is claimed to have damaged appellee did not come from the tank, but that to some extent it was surface water which flowed down from the hillside above, and in view thereof, the following instruction was asked by appellant, the refusal to give which is assigned as error :

“5. If the jury believe, from the evidence, that any damage done to plaintiff’s property, if any such is proven in evidence, was a combined result of an action of surface water running in a natural channel, and of the water escaping from defendant’s tank, then the plaintiff can not, in any event, recover for any damage he may have suffered in consequence of the flowing of such surface water; and if the jury can not, from the evidence, determine what part or portion, if any ' damages, was occasioned by the water escaping from the tank, then, in no event. can they find for the plaintiff more than nominal damages, on account of damages he may have suffered from the flowing of the water.”

. The first clause of the instruction is well enough, but the last one is objectionable as liable to mislead the jury to understand that unless they could determine to a certainty the extent of damage from each of these sources, they should find only nominal damages for the plaintiff. The evidence justified the belief that the water came mainly from the tank, and the plaintiff was entitled to recover for all damages from that source; and if the jury could not separate and distinguish between the several amounts of the damage caused by the water from the tank and the surface water respectively, they should have been left at liberty to estimate as best they might, from the evidence, how much of the whole damage was occasioned by the water from the tank. In Ogden v. Lucas, 48 Ill. 493, an instruction of a similar character, as we take it— the instruction not being given in the report of the case—was condemned, and see Washburn v. Gilman, 64 Me. 163. We find no error in refusing this instruction.

It is objected that there was a recovery for damages suffered after the commencement of the suit. The suit was commenced April 7, 1875. The ice upon the premises did not melt and run off until the latter part of May following, and as a consequence of the melting of the ice, the premises were made wet, slippery and muddy, wherefrom was an inconvenience and detriment to business. This is the subsequent damage referred to. It was proved, that on March 1, 1875, the hole or cesspool was dug at the foot of the tank, in which all the surplus water escaped from that time.

All the ice had formed on appellee’s property before that time, so that the water and ice which caused the damage were on the premises before the commencement of this suit. It is true, that as a general rule, judgments refer to the situation of the parties at the commencement of the action. But as recognized in Cooper v. Randall, 59 Ill. 321, when a wrongful act is done which produces an injury that is not only immediate, but from its very nature is permanent, and must continue to produce injury independent of any subsequent wrongful act, then all damages resulting both before and after the commencement of the suit may be estimated and recovered in one action; and see Sedgw. on Damages, 102; Felter v. Beal, 1 L. Raym. 339.

In this case, the injury sustained by appellee between the commencement of the suit and the trial, was not from any wrongful act done by appellant during that time, but followed from acts done before the suit commenced, and was properly recovered for in this action.

There was a claim of a prescriptive right to flow waste water from this tank over these premises, set up by the appellant.

It made proof that the tank had been there, and had discharged its surplus water in the same way, for more than twenty years.

For the purpose.of showing that this use had not been acquiesced in during that period, one Sterricker gave testimony that he purchased this lot in 1858 and sold it to appellee-in 1872; that he complained to depot agent Sprague about water running over the lot; that he spoke to him several times; that for the first thirteen years it was not sp bad; it was worse every winter, for several reasons; that he called the depot agent’s attention to it and complained; that he told him he wanted it stopped.

The station grounds at Elgin, were occupied by the railroad company in 1851, and have been since continuously occupied.

As bearing upon the question of prescription, the court below gave three instructions on behalf of the plaintiff, which are complained of as being erroneous. They were in substance as follows:

1. That the defendant could acquire no prescriptive right to let the waste water from its tank run on to a street of the city of Elgin.

2. That if Sterricker, while he owned the lot, objected or complained to the agent of defendant because of his premises being so flowed with water, it prevented the defendant from obtaining a prescriptive right.

3. That if the plaintiff was at the time in quiet possession of a part of South street, and had erected a dry-house and piled lumber therein, defendant is liable for any damages caused such lumber to the same extent that it would be in case plaintiff owned the premises where the lumber was so stored.

It is contended that the objection and complaint made by Sterricker would not prevent the prescriptive right from accruing, if there was no act done. Upon this subject it is laid down in Washb. Easem. & Serv., 3d ed., p. 131, that the use and enjoyment of what is claimed, must have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate in, over, or out of which the easement prescribed for is claimed, and see p. 162; and 2 Greenlf. Ev. § 539 is to like effect. In Smith v. Miller, 11 Gray, 145, it is said that in order to make the use of an easement in another’s land for twenty years conclusive of the right, the use must be adverse, uninterrupted, and with the knowledge and acquiescence of the owner of the land, and that each of these qualities or ingredients, essential to the maintenance of the claim, is open to contradiction and liable to be disproved. In Nichols v. Aylor, 7 Leigh, 546, where, though one had flowed another’s land for more than twenty years, it appeared that the latter had complained thereof, and denied the right so to do, it was held that it rebutted the presumption of its having been enjoyed under a grant. And so in Stillman v. White Rock Co.

3 Woodb. & Min. 549, where it appeared that the party against whom the prescription was claimed had during the time remonstrated against the use, and consulted counsel for a prosecution therefor. And in Powell v. Bagg, 8 Gray, 441, where the defendant claimed the easement of an aqueduct across the plaintiff’s land, it was held, that if the owner of the laud, being upon it, forbade the other party to enter upon the land and make use of the aqueduct, it was enough to prevent his acquiring an easement by such use and enjoyment, which had been for thirty-eight years; that to have one gain an easement, it not only must be claimed adversely, hut it must be acquiesced in by the owner of the land, under a claim of right. We do not suppose the circumstance of the place where the forbiddance was made, whether on or off the land, to be material. In Warren v. The President, etc., of the Town of Jacksonville, 15 Ill. 241, this court said, a right by prescription can not be raised without the consent of the owner; but the use may be so long unobjected to as to authorize the finding of an implied consent, and to raise a presumption of consent, and even of a grant.

Although there has been cited the case of Kimball v. Ladd, 42 Vt. 747, which is somewhat to the contrary, and School District v. Lynch, 33 Conn. 334, is in the like direction, we-A¿£ do not think it necessary to prevent the gaining the right by adverse use which is claimed, that the plaintiff should have asserted his right in opposition thereto by suit at law, or by any act of violence in resistance of the use.

It is urged further, that even if such objections as made in this case would avail to bar a prescriptive right, they were not made to the proper person, being made to the depot agent —that they should have been made to the person who had charge of the waiter tanks and wind mills, or to the division superintendent, or to the general superintendent. We are of opinion that the complaints of this use of the lot, in flowing water upon it, and the demand that it should be stopped, which the evidence shows were made in this case by Sterricker to the depot agent, sufficiently disproved acquiescence in such user, and thereby an essential element of a right to an easement by adverse use was shown not to exist—that the presumption of a grant was rebutted, and the instruction was properly given.

But the instruction that the defendant was liable for any damages caused to the lumber of the plaintiff in South street to the same extent as it Avould be in case the plaintiff owned the premises, we regard as erroneous.

The plaintiff'had no right in South street, no right to place a dry-house or pile lumber therein; individual members of the city council or the chairman of the street committee could not gum him such right.

The tank had been erected, and the water floAving from it as it did, a long time before the street was thus occupied by the plaintiff. Defendant was, in this actual user, prior in time, and therefore, as between themselves, superior in right to the plaintiff.

We do not consider that the plaintiff, having no right in the street, could thus secure a right of action against the defendant by going on the street and piling lumber there in such manner that the Avater from the tank, as it Avas being caused to run by defendant and had been for a long time, Avould Hoav on to it. It Avas but his own folly to thus put his property in a place of exposure to such a source of damage. See Illinois Central Railroad Co. v. Allen, 39 Ill. 205, Toledo, Wabash and Western Railway Co. v. Hunter et al. 50 id. 325. Had the plaintiff owned the premises it would have been different. He might justifiably have placed the lumber anywhere upon his own land. The instruction, we think, could only be justified upon the assumption that the railroad company had turned the water upon the street through a different channel than that in which it had before been accustomed to run, and that the damage was caused solely therefrom. But the evidence, at least that on the part of appellant, did not Avar rant such an assumption.

That the defendant could acquire no prescriptive right to let the Avaste water run from its tank on to a street of the city of Elgin, although true as against the city, or one in the legitimate use of the street, as a street, (City of Quincy v. Jones et al. 76 Ill. 231,) it Avould be otherwise as against this plaintiff here, and the instruction in that respect should have been refused as inapplicable to the present case.

For the errors indicated the judgment will be reversed and the cause remanded.

Judgment reversed.