159 N.E. 805 | Ill. | 1927
Appellee, the Coal Creek Drainage and Levee District, a corporation organized under the Levee act, brought in the circuit court of Schuyler county an action of trespass on the case against appellant, the Sanitary District of Chicago, to recover damages for injuries to the levees, ditches, pumping plant and other works of appellee, alleged to have been sustained by reason of appellant causing the same to be illegally flooded and for money which appellee was obliged to expend by reason of alleged wrongful acts of appellant. After considerable pleading, issues were joined and a jury trial had, resulting in a verdict in favor of appellee for $98,089.62 damages. Motions for a new trial and in arrest of judgment were overruled and judgment rendered on the verdict for appellee, against appellant, for $98,089.62 damages and costs of suit, including as a part of the costs $20,000 for attorneys' fees, with the proviso that $5000 was to be remitted in case no appeal was taken. From this judgment an appeal has been taken to this court.
The first question to be determined is whether or not a freehold is so involved in this appeal as to give this court jurisdiction on that ground. It is not from every judgment *362
or decree in cases in which a freehold is involved in the circuit court that an appeal will lie directly to this court. In Lewis v. Lewis,
This case differs from Jones v. Sanitary District,
252 Ill. 591 . In that case the plaintiff alleged in the declaration that he owned the land in question at the time of the alleged trespasses. The defendant filed a plea denying that at the beginning of the suit and during the time of the commission of the alleged offenses the plaintiff was the owner of the land. On the trial, evidence was heard upon this issue and instructions were tendered by both sides on the subject of the plaintiff's ownership of the land, and the question as to the right of freehold was preserved for review on appeal by proper assignment of error. The suit was for damages to real estate, and its ownership was a material question in the litigation. In the instant case, while appellee in its declaration stated that it was the owner and in lawful possession of the premises, its declaration also stated facts enlarging and explaining such allegation, which showed that it was not the owner of the fee in the land, but was the owner of a perpetual easement but the fee was in some other party. (West Skokie Drainage District v.Dawson,243 Ill. 175 ; Fountain Creek Drainage District v.Smith, 265 id. 138.) Under its declaration it was not necessary for appellee, in order to maintain its action, to prove it was the owner of the premises. Since actual possession of land is sufficient to maintain an action for disturbing an easement appurtenant thereto, a plaintiff is under no obligation to set out the quantum of interest which he has in the land. If seizin and possession are both alleged but possession only is proved, it is sufficient. Pierce v. McClenaghan, 5 Rich. L. 178;Ferguson v. Witsell, 5 id. 280; 9 R. C. L. 818.
In the determination of a suit for damages for disturbance of an easement appurtenant to land a freehold is not necessarily involved. While appellant filed a plea denying that appellee was the owner and in the lawful possession of the premises, this plea was bad, as, while it purported to be a plea in bar of the whole action, it did not meet the *364
entire case stated in the declaration, and so far as it did meet the declaration it amounted to nothing more than the general issue. While in this case, more than three months after the filing of the record in this court, appellant, by leave of court, filed an additional assignment of error that the court erred in refusing to instruct the jury, at the close of all the evidence, to find the defendant not guilty on the ground that the plaintiff had not proven title to the land, the motion shown by the record does not assign such ground for the giving of the motion. The title to the land over which appellee's right of easement existed was in nowise involved in the pleadings in this case and no action or ruling of the trial court as to such title appears in the record. Appellee in its declaration did not claim to be the owner of the fee in land on which the ditches, levees, etc., were situated, but alleged facts showing its organization as a drainage district, with the incident right of perpetual easement in its right of way and interference with such right by appellant. This right was not controverted by appellant on the trial by the introduction of evidence or by any motion made or instruction proffered, but, on the contrary, was admitted by appellant by evidence introduced in its behalf, by instructions given to the jury and by statements in its brief and argument. Appellant does not by any assignment of error in this court or by its brief and argument question appellee's right to its perpetual easement in the land. Its defenses urged on the trial and the questions raised by assignment of error and in its brief and argument are based on entirely different grounds. In Zinser v. SanitaryDistrict,
While a freehold was involved originally, no question involving a freehold is now before this court for determination, and as no other grounds for jurisdiction in this court appear in the record, the cause is transferred to the Appellate Court for the Third District.
Cause transferred.
