| Ill. | Jun 20, 1892
delivered the opinion of the Court:
A preliminary question has been raised by a motion to dismiss the appeal for the want of jurisdiction. The motion can not prevail. Under the authority of Chaplin v. Comrs. of Highways, 126 Ill. 264" date_filed="1888-11-15" court="Ill." case_name="Chaplin v. Commissioners of Highways">126 Ill. 264, and Chronic v. Pugh, 136 id. 539, a freehold is involved, and the appeal was properly taken from the circuit to this court.
Ten exceptions were filed to the master’s report, which the court • sustained, and entered a decree dismissing the bill. The exceptions, so far as they may be regarded material to a proper decision'of the case, will be considered.
The first exception seeks to call in question the report of the master because he fails to state that the place where the sewer in question discharged its contents is several feet below the road-bed, and that it flows into a natural water-course. The evidence establishes the fact, beyond question, that the sewer terminates in the highway near Bradley’s bridge. But whether the mouth of the sewer is lower than the surface of the highway has no special bearing on the case, and 'hence is not a matter material to the decision. There is a depression or ravine at Bradley’s bridge, where the master in chancery states that the water passes under the bridge; but the fact that the master, in the report, fails to state that there is a ravine or water-course at that point is not deemed important.
The second and third exceptions relate to one subject and may be considered together. The master found, from the evidence, that most of the surface water from the most thickly populated part of the village of Bensonville, to-wit, that part lying south of the railroad, track and east of a line two hundred feet west of Addison street, is by means of the sewer conducted in an unnatural direction, and also the sewage from a cheese factory and the sewage from a large number of water-closets is also conducted by the sewer in an unnatural direction, and all deposited in the highway. It is claimed that the surface water and sewage are not carried in an unnatural direction, and hence the master’s report on this branch of the case is not sustained by the evidence. There is no conflict in the'evidence in regard to the fact that the surface water and sewage of the largest portion of the village is carried off in the sewer and deposited in the highway near Bradley’s bridge, where it is allowed to sink into the ground or pass over upon the farm of the complainant, but whether the sewer carries the matter collected, in an unnatural manner, there may be a slight conflict in the evidence. There are some witnesses who testify that the natural flow runs in the direction of the sewer, but a decided preponderance of the evidence tends to prove, before the sewer was constructed surface water flowed off in a south and south-east direction. It is true that the surface of the land is lower at the mouth of the sewer than at the point where the construction of the sewer was commenced; but between the two points the land is elevated, and at one place on the route it became necessary to sink the sewer nine feet in order to secure a proper fall.
H. P. Alexander, a civil engineer of education and experience, testified: “I have run levels over the ground and taken the elevations. I know the locations represented by that map. That part of the village of Bensonville lying south of the railroad track and east of a line two hundred or three hundred feet west of Addison street and north of Green street slopes south-easterly. The ground on which the cheese factory is located slopes south-easterly. Main street, on the north side of the railroad track, extending as far as Addison street, slopes south-easterly. That part of .Elmhurst street east of the houses in the village and south of the railroad, along the line of the railroad, where I took the elevations, slopes south-easterly. In my judgment and opinion the natural course and direction for the surface water and drainage of that part of the village of Bensonville lying south of the railroad track and east of a line two hundred or three hundred feet west of Addison street would be south-easterly.” The evidence of this witness is corroborated by many others who were familiar with the location of the village and its surroundings, So far, therefore, as this part of the master’s report is concerned, it is fully sustained by the evidence.
^ The exceptions Nos. 4, 5, 6 and 7 relate to the action and power of the commissioners of highways to construct the ditch across complainant’s farm, and may all be considered together.
As a justification of the entry upon complainant’s farm by the commissioners of highways, and the construction of a ditch across her premises, defendants rely upon section 8 of an act of the legislature passed June 20,1883, (Laws of 1883, p. 139,) which is as follows: “The commissioners of highways of the several towns are hereby authorized to enter upon any land adjacent to any highway in their town, for the purpose of opening any ditch; drain, necessary sluice or water-course, whenever it shall he necessary to open a water-course from any highway to the natural water-courses, and to dig, open and clean ditches upon said land, for the purpose of carrying off the water from said highway or to drain any slough or pond in said highway: Provided, that unless the owner of such land, or his agent, shall first consent to the cutting of such ditches, the commissioners shall apply to any justice of the peace in the county in which such road is situated, for a summons, directed to any constable of said county, commanding him to summon the said owner to appear before the said justice * * * not less than five nor more than fifteen days from the date thereof, for the purpose of having the damage assessed which the owner may sustain by reason of the digging or opening of such ditches or drains.” The section also provides for a jury to assess the damages, and that the amount awarded shall be paid before the commissioners shall enter upon the premises. The section also authorizes the commissioners to use and employ the road and bridge money of the town for such purpose.
No question has been raised in the record in regard to the constitutionality of the statute, and upon that point we ex-' press no opinion. But where the commissioners of highways undertake to take lands under this special statutory authority, and thus deprive the owner of his property, they may exercise such power as is clearly conferred by the statute, but no further power can be exercised by them. The section of the statute is plain, and the power conferred upon the commissioners of highways by the legislature is obvious. That body is authorized to dig, open and clean ditches upon lands adjoining the highway for a certain defined purpose, and that, as declared by the language of the act, is, for the .purpose of carrying off water from said highways or to drain any slough or pond in the highway. The language here employed means what it says, and nothing more. ■ While the commissioners may exercise the power of eminent domain for the purpose of carrying off water from a highway when the public good may require it, they have no authority to exercise such power for the purpose of carrying over an adjoining farm the sewage which an incorporated village or town may deposit upon the highway, by drains or other appliances. We think it apparcnt that this is the proper construction to be placed on the statute.
It will, however, be observed that it is alleged in the bill that the commissioners of highways have instituted proceedings, under the statute, for the purpose of having damages assessed which complainant may sustain by reason of the construction of the ditch. It is also alleged in the bill “that said commissioners of highways of the town of Addison are pretending to proceed under section 8 of a statute of the State of Illinois, entitled ‘Boads and Bridgesbut your oratrix avers that said proposed ditch is neither necessary to open a watercourse from any highway to the natural water-course, nor is said ditch necessary for the purpose of carrying off the water from any highway, nor to drain any slough or pond on said highway, but that it is for the sole purpose of conveying said sewage onto the above described farm of your oratrix; that there is no public necessity whatever for the digging of said ditch, except what is caused by the discharge of said seAvage, as hereinbefore set forth; that there is no outlet for said proposed ditch at the place where it is proposed that said ditch should terminate, nor anywhere else.”
Conceding that this allegation of the bill is true, if the complainant had a remedy at law so far as the action of the commissioners of highways is involved, it is a plain proposition that -she had no ground for resorting to a court of equity. "Was there “a remedy at law?” In Chaplin v. Highway Comrs. 129 Ill. 653, it was held that a justice of the peace would have no jurisdiction unless it was first determined by the commissioners of highways, when acting in their official capacity, that a necessity existed for the ditch or drain, and their determination can only be shown by the record of their proceedings. While a determination of the commissioners as to the necessity of a drain or ditch is required before a justice would have jurisdiction of a proceeding to assess damages, at the same time the determination of the commissioners would not be conclusive on the land owner. When he is brought before the justice by a summons, he ought to be permitted to show, if such is the fact, that no necessity existed for the ditch; that there was no slough or pond of water in the highway to drain; that there was no outlet over the land; that the sole purpose of the ditch was, not to carry accumulated water from the highway, but for the purpose of carrying off sewage, or for some other purpose not, contemplated by the statute; and if the justice should determine that there was a necessity when none existed, after the damages had been assessed before a jury, on appeal, the same question might be renewed in the circuit court. As to the damages arising from the construction of the drain or ditch, whatever the amount might be for the land taken, the complainant would he entitled to recover that, and if her farm was damaged in any other respect, or its value impaired in any way in consequence of the construction of the drain or ditch, such damages she would also be entitled to recover before the jury called to assess damages. If we are correct in this, it would seein to follow that, in so far as the action of the commissioners in the proceeding before the justice was concerned, there was a remedy at law, and in that regard the bill could not be maintained.
It will be observed that the master found, from the evidence, that most of the surface water from the most thickly .populated part of the village of Bensonville was, by means of the sewer, brought in an unnatural course, and caused to flow under Bradley’s bridge and thence upon complainant’s farm. The master also made the following finding: “I further find, from the evidence, that said sewer receives and conveys.the drainage and sewage from the cheese factory, and a large number of water-closets within said portion of said village, in an unnatural course and direction, and deposits the same in said highway, whence it passes under- said bridge, onto the said farm of the complainant, where, in a dry season, it soaks into the land, and causes, what I find from the evidence to be, both a public and a private nuisance. I find that the place where said sewer discharges its contents is in the public highway.” The master also made the following finding: “I further find and conclude that the conducting of said drainage and sewage from said portion of said village of Bensonville to said highway, and from thence onto the said premises of the complainant, by means of said sewer, is unlawful, and a continuing and irreparable injury to said complainant,' and I recommend that a perpetual injunction issue restraining the said defendants.” The exceptions Nos. 8, 9 and 10 call in question the correctness of the above part of the.master’s report.
As has been seen, the sewage of the village is carried outside of the corporation to a point in the highway opposite the farm of complainant, and there discharged. So far as disclosed by the evidence, the authorities of the village never obtained authority from any quarter to discharge the sewage of the village in the public highway. The master in chancery found, from the evidence, that the deposit of the sewage in the highway was a nuisance, and upon an examination of the evidence we think the finding is fully sustained, as a brief reference to a portion of the evidence will fully demonstrate.
' Charles Huber testified, in substance, that he saw the sewage where it is discharged; that “it looked milky, and, if you stirred it up, smelled bad, and was green and white, and in the ditch it was a stagnant pool.”
Theo. Coch testified: “The sewage near Bradley’s bridge has a very bad smell. I worked there on Mrs. Dierks’ land nearly two days, and the smell made me throw up.”
William Dierks testified: “I am twenty-four years old. Am a farmer. Live with my mother, the complainant, and help carry on the farm. Have always lived there. Know where the Bensonville sewer discharges its contents, near Bradley’s bridge. It is on the west side of the road in the right of way, south of the bridge. Elmhurst road is on the west line of my mother’s farm. The sewer smells so bad in there that a person can’t stand it to work along it. It is impossible to stand it in the summer time. It smells worse in the summer than at other seasons in the year. I smell it while in the fields working on the farm.”
Jacob Ladraeg: “Pretty near all the houses in the village of Bensonville drain into the sewer. In low water the discharge of the sewage near Bradley’s bridge smells bad, and in the summer time it makes a bad smell.”
Ida Dierks, the danghter of the complainant, says the sewage has a very disagreeable odor; that she notices it at their house, and that while she is watching cows on her mother’s farm it makes her feel like vomiting.
John Koneca: “When I rebuilt the sewer it smelled very bad.”
MargarethaDierks, the appellant: “The sewage discharged from the sewer near Bradley’s bridge is whitish green, and muddy, and stinks. It smells most in the summer time. It is a nuisance to me and my family. The children get sick there and we can’t hire any one to work there for money. It makes a stench about my house when the wind is in that direction. We can’t open the windows on account of the stench, and it will make the water bad for the cattle when the sewage comes down that way.”
August Schwerdtfeger: “The discharge of sewage near Bradley’s bridge smells pretty bad, and I think it is unhealthy. * * * I would not buy a place with such a nuisance.”
The record contains other evidence to the same effect, but we have referred to enough to show the nature and character of the contents of the sewer, and its effect in the locality where its contents are emptied in the public highway. If, as the evidence shows, the discharge of the sewer creates such a stench that a person can not work on the farm in that locality without vomiting, it is apparent that its continuance will be detrimental to the comfort, the health and lives of those who reside in the immediate locality, and it ought to be abated. It •is true that it has not been determined, on a trial by jury, in an action at law, that a nuisance exists; but in a case of this character we do not think that is required. Eden on Injunctions, 259.
In Wahle v. Reinbach, 76 Ill. 324, which was a bill in equity to enjoin a threatened nuisance, after referring to a number of authorities it is said: “These cases recognize the doctrine, which is supported by all the authorities on this branch of equity jurisdiction, that where the injury resulting from the nuisance is in its nature irreparable, as, when loss of health, loss of trade, destruction of the means of subsistence or permanent ruin to property will ensue from the wrongful act or erection, courts of equity will interfere by injunction in furtherance of justice and the violated rights of property.” Here it is manifest that the injury resulting from the nuisance is irreparable. The property of the complainant will be permanently injured, the health of herself and family, and, indeed, that of all in the immediate neighborhood, is imperiled, and the facts bring the case within the rule indicated in the case last cited.
We think the court erred in sustaining exceptions eight, nine and ten, and erred in dismissing complainant’s bill.
The decree will be reversed, and the cause remanded for further proceedings in conformity to this opinion.
Decree reversed.