| Ill. | Mar 30, 1891
delivered the opinion of the Court:
This was a proceeding brought by Pugh and Dunagan against Mrs. Merium Chronic, under the provisions of sections 4 to 10 of the “Act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27, 1885, to obtain the right, without the defendant’s consent, to construct a tile drain from the plaintiffs’ lands on to and part way across an adjoining tract of land belonging to the defendant. At the trial before the justice of the peace the court found for the plaintiffs, and awarded the defendant one dollar as the actual damages which will be sustained by her by the plaintiffs’ entering upon her land and constructing said drain, and judgment was thereupon entered in her favor for said sum of one dollar and costs. From that judgment the defendant appealed to the Circuit Court of Clark county, where a trial was had before the court and a jury, resulting in a verdict finding no damages for the defendant. Upon that verdict a judgment was rendered against the defendant for the costs incurred in the Circuit Court, and by a further appeal the defendant has brought the record to this court for review.
The question is raised whether the appeal has been properly brought from the Circuit Court directly to this Court. The right sought to be established by the plaintiffs upon and over the land of the defendant is in the nature of a perpetual easement. By the provisions of section 7 of the act above mentioned, the plaintiff in a proceeding of this character, upon the payment of the judgment for the damages awarded and costs, obtains the right to enter upon the land of the adjoining proprietor and construct his drain, and also the right, at all times thereafter, in proper season, to enter upon said land for the purpose of repairing the drain, and it is made his duty to keep it in good repair, and it is declared that this right and duty shall pass to the heirs and assigns of the land for the benefit of which the drain is constructed. Section 10 moreover makes it a misdemeanor, punishable by fine, and after the second offense by fine and imprisonment, for any person or persons to willfully fill up, injure or destroy any drain constructed as in said act required, or to willfully prevent or delay the construction thereof. Clearly, the successful issue of a proceeding of this character vests in the plaintiff an estate in fee in the easement sought to be acquired. This, as we have frequently held, is a freehold estate, within the meaning of the statute fixing the relative appellate jurisdiction of this court and the Appellate Court. Chaplin v. Commissioners of Highways, 126 Ill. 264" date_filed="1888-11-15" court="Ill." case_name="Chaplin v. Commissioners of Highways">126 Ill. 264; Oswald v. Wolf, id. 542; Tinker v. Forbes, ante, 221. The appeal was properly taken to this court.
In the Circuit Court a motion was made to dismiss the appeal to that court, on the ground that, in cases of this character, the statute makes no provision for an appeal from the judgment of the justice of the peace. It is true that no appeal is expressly given by the terms of the statute itself, but section 5 provides that, when it is necessary to extend drains on or through the land of others to obtain a proper outlet, and the person desiring to drain proposes to construct such extension at his own expense, by means of an ample and properly made tiled ditch, and the owners of the land refuse to consent thereto, the person or persons desiring to- drain may cause a summons to issue from any justice of the peace in the county, in the same form, and returnable in the same manner, as other summons in civil suits, “and proceeding shall be had thereon as in other civil causes before justices of the peace.”
It can not be doubted that the Legislature intended by these provisions to subject proceedings of this character to the same rules of practice prescribed by law for the conduct of civil suits instituted and prosecuted before justices of the peace, and by reference to the statute regulating the practice in justices’ courts it will be found that appeals from judgments of justices of the peace to the Circuit Court are there given in all cases. R. S. 1874, chap. 79, sec. 62. It would thus seem to follow necessarily that the appeal in this case was properly allowed.
The contrary conclusion, however, is sought to be drawn from the provisions of section 6 of the Drainage Law. That section provides that the justice, or the jury if one is impaneled, shall hear the evidence, and if they find that the drain, if constructed in the manner proposed, will not empty into a natural water-course or into a natural depression leading to such water-course, or into a drain in a public highway, they shall find for the defendant; but if they find that the proposed drain will empty into a natural water-course, natural depression or highway drain, they shall find for the plaintiff and allow the defendant his damages. The section then concludes with the following provision: “The judgment shall be final and conclusive between the parties until after the expiration •of two years from the finding in the former case.” It will be observed that the provision is not that the judgment of the justice of the peace shall be final, but merely that the “judgment,” that is, the final judgment in the proceeding, shall be final. It may therefore just as properly be held to mean the final judgment on appeal as the judgment pronounced by the justice of the peace. The provision here quoted was undoubtedly inserted as a restraint upon repeated attempts by the parties to litigate the right of one party to extend his drain on to the land of the other, and not for the purpose of taking away the right of appeal.
A motion was made in the Circuit Court by the defendant to dismiss the proceeding on the ground that no bond was •given and no sketch or plat of the land to be drained filed before the original summons was issued, as required by sections 8 and 9 of the Drainage Law. Said motion was overruled, and a cross-motion by the plaintiffs for leave to file a new bond and plat was allowed. The decision of these motions is assigned for error. We think it sufficiently appears that a bond and plat were filed before the summons was issued. No bond seems to have been returned by the justice to the Circuit Court with his transcript, but the transcript recites that before the summons was issued, the plaintiff filed a satisfactory bond in the sum of $50 for costs and damages, and also a plat of the land to be drained. This recital, at least in the absence of any evidence tending to impeach it, must be taken to be true. It moreover appears that a somewhat rude and imperfect sketch of the land to be drained was returned by the justice with his transcript, and that sketch, imperfect as it is, must be regarded as a sufficient attempt to comply with the statute, so far as the filing of a sketch or plat is concerned, to give the justice jurisdiction to issue the summons. It thus appearing^ that a bond and plat were filed at the institution of the proceeding, there was no error in refusing to dismiss the suit, or in allowing the plaintiffs to file a new bond and plat.
It is insisted that the statute under which this proceeding was instituted is unconstitutional because it provides for the taking of the private property of one land-owner for the private-use of another. It is sufficient to say, that said statute is. clearly within the legislative power conferred upon the Genera! Assembly by section 31 of article 5 of our present State Constitution. That section provides that: “The General Assembly may pass'laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary and mining purposes, across the lands of others.”
The only remaining question to be considered relates to the rulings of the court in the admission of evidence bearing upon the question of damages. The defendant sought to prove by various witnesses the entire damages, both direct and consequential, which she would suffer by the construction of the proposed drain on her land, and the operation of said-drain after it should be constructed. The court, however, excluded all evidence of damages except of such actual damages as would be sustained by the plaintiffs’ entering upon her land and constructing the proposed drain.
Section 6 of the Drainage Act provides that in case, in proceedings of this character, the judgment is in favor of the plaintiff, the court “shall allow the defendant or defendants such actual damages only as will be sustained by entering upon the land and constructing such drain.” The construction put upon this provision by the Circuit Court seems to have been, that the right to compensation of a land owner for the servitude imposed upon his land by the construction over it of a drain was limited to such actual damages as would be the direct and immediate result of the entry upon his land, the digging up of the soil and the laying of the tile. Manifestly, if this construction is to be accepted as the true one, the compensation provided for is far from being adequate. The construction and maintenance of a drain of this character impose upon the land over which it is constructed a perpetual servitude, and it needs no argument to show that besides the interference with the soil inseparable from the construction of the drain, the creation of such servitude necessarily involves various other elements which are equally deserving of compensation. In fact the compensation provided for would in many cases cover only a very trifling and insignificant part of the damages caused by the creation of the easement, as the drain may be constructed at a season and under circumstances which render the damages caused by digging up the soil and laying the tile merely nominal. By the construction of the drain one of the parties acquires and appropriates a substantive right and interest in the lands of the other, a right which, as we have seen, is, when acquired, protected from invasion, even as against the owner of the land, by severe penal enactments. The interest or easement thus acquired imposes upon the servient estate not merely the burden of having the soil perpetually used as a conduit for carrying off the drainage from the dominant estate, but the owner of that estate, his heirs and assigns, acquire, in perpetuity, the right to enter, at all proper seasons, for the purpose of making repairs, and the servient lands are subjected for all time to the burden of receiving the water which will continually be discharged upon it from the drain.
If the construction of the statute in question adopted at the trial below were the only one of which it is susceptible, we might feel compelled to declare the statute unconstitutional in that it provides for taking and appropriating private property, by proceedings in invitum, without making just compensation. Section 13 of article 2 of the Constitution prohibits the taking or damaging of private property for public use without j-ust compensation, and under this and similar provisions of State Constitutions it has been uniformly held in this and other States, that the power to authorize the taking of private property for private use, either with or without compensation, is impliedly prohibited. Nesbitt v. Trumbo, 39 Ill. 110" date_filed="1866-01-15" court="Ill." case_name="Nesbitt v. Trumbo">39 Ill. 110; Lewis on Eminent Domain, sec. 157, and authorities cited in note.
It is true the section of the Constitution in relation to Drainage authorizes the passage of laws permitting the owners of land to construct drains, for agricultural, sanitary or mining purposes, across the lands of others, and is silent on the subject of compensation to the owners of the lands over which such drains are constructed, but we are not inclined to adopt the view that the framers of the Constitution intended to authorize the taking of private property, even for the purpose of drainage, without making just compensation. If the construction of drains for the purposes mentioned is to be regarded as a public purpose, then the taking of private property for that purpose comes directly within the prohibition of section 13, article 2. If, on the other hand, it is to be treated as a taking of private property for a mere private purpose, we are inclined to the view that, by analogy, it must be held to come under the same rule, so far as the duty to make compensation is concerned. If the taking of private property for public use and to subserve the public welfare can be authorized only upon making just compensation, we will not readily attribute to the framers of the Constitution an intention to authorize the taking of private property for private use by proceedings in invitum, without making compensation to at least an equal extent.
But we need not in this case go so far as to definitely determine the constitutional questions here suggested, as the statute under consideration is clearly capable of a construction which will bring it into harmony with what we are inclined to adopt as the constitutional limitation applicable to it, and at the same time make it consistent with the plain dictates of natural justice. It authorizes the allowance of “such actual damages only as will be sustained by entering upon the land and constructing such drain.” This language clearly embraces all damages which will be sustained by, or in consequence of, the entry upon the land and the construction of the ditch, and the use of the word “only” can not be held to have the effect of restricting it to anything less than all of the damages thus occasioned. The entry upon the land and the construction of the ditch, when made- in pursuance of a judgment obtained in proceedings instituted for that purpose under the provisions of the statute, constitute, in law, a taking and appropriation of a perpetual easement in the defendant’s land, and all damages, both direct and consequential which necessarily result from such taking and appropriation, are actual damages occasioned by the construction of the drain. If by reason of the creation of the easement the defendant’s land is diminished in value or is depreciated, no reason is perceived why such diminution in value may not be regarded as representing the actual damages resulting from the construction of the drain. We think, therefore, that substantially the same rules for the ascertainment of damages which prevail in proceedings for the condemnation of private property for public use should be adopted in cases arising under this statute.
We are disposed to adopt the construction we have thus indicated, although it may not be in all respects the most obvious one, not only for the reasons above stated, but because we will not readily attribute to the General Assembly an intention to authorize the taking and appropriation by one person of the private property of another, upon any terms less than the obviously fair and equitable ones of making just and full compensation for all damages directly and necessarily resulting from such taking. This construction does no violence to any of the language employed, and is the only construction which, in our judgment, is consonant with the principles of natural justice, which,-as we are bound to presume, are always recognized as controlling by the law-making power.
It follows from what we have said that the Circuit Court erred in the exclusion of evidence as to damages, and for that .error the judgment must be reversed and the cause remanded.
Judgment reversed.