delivered the opinion of the court:
Appellant and appellee are the owners of adjoining farms in Vermilion county, separated by a road running north and south, Mrs. Dunn’s land lying to the east and Youmans’ land to the west of the road. The natural drainage of the eastern part of Youmans’ land is across the road and north-east across a part of the Dunn land. Something more than twenty years ago two drains were put in the Dunn land to carry away the surface water from that land and from the land that naturally drained across it. The drains were changed in some respects, until finally, at the time this controversy arose, the smaller drain, composed of five and six-inch tile, ran north-easterly across the Dunn land, emptying into the larger tile drain, which some of the witnesses said was ten inches in size and some nine, and which ran nearly east and west across the Dunn land from the road. The distance between these two drains where they started into the Dunn land at the road was about twenty-four or twenty-five rods. In 1903 a drainage district for agricultural and sanitary purposes was formed in the town of Oalcwood, and all of -the Dunn land in question and forty acres of Youmans’ farm immediately west of the road were included. Under the law applicable to the district the highway commissioners of the town of Oalcwood were ex officio the drainage commissioners. Youmans objected to the amount of his assessment and stated to the commissioners that he already had sufficient drainage. During the attempts to settle this controversy, Dr. Dunn, the husband of appellant, as her agent, had several interviews with Youmans. There was a dispute as to who owned the tile on the Dunn land composing the drains in question, The drainage commissioners proposed to take up the nine or ten-inch tile heretofore referred to, and put down in its stead, as a part of the new drainage scheme, a fourteen-inch tile. Dr. Dunn offered to Youmans to leave the question as to the ownership of the tile to arbitrators, but this offer was not accepted. The drainage commissioners held a meeting for the purpose of discussing the objections of Youmans and two other objectors, and at Dr, Dunn’s suggestion previously made to them, but not in the presence of Youmans, they agreed with Youmans that if he would drop his objections to the assessment of $200 for the forty acres immediately west of the road they would permit him to bring into the drainage district his other forty which joined the first forty on the west and would assess him only $20 for the second forty. The records of the drainage commissioners only show this part of the agreement. However, all three drainage commissioners testified that during this talk it was the understanding with Youmans that if they consented to this reduction he would drop all claim to all the tile on the Dunn land and did not care what was done with the ditches there. Dr. Dunn did not take part in the conference directly with Youmans, but this part of the talk was brought about by his suggestions to the commissioners that the whole controversy might be satisfactorily settled in this manner. On the other hand, Youmans claims that while he had some talk about his right to give up the tile he understood it to mean only the tile in the north drain,—the nine or ten-inch tile,—and did not understand he was referring in any way to the small drain of five and six-inch tile. The fourteen-inch tile was constructed in place of the north drain, extending from the road easterly across Dunn’s land and running across the road westerly a few feet into Youmans’ land. A few months after this, in August, 1904, Dr. Dunn, acting for appellant, took up the southerly or small drain on her land and the following month of September constructed a drain, using practically the same tile, in the highway on the east side of the traveled road, connecting on a curve or arc with the tile in Youmans’ land and extending to the north twenty-four or twenty-five rods, so as to run into the fourteen-inch drain. About the time the re-laying of this drain along the east side of' the road was completed this bill for mandatory injunction was filed in the circuit court of Vermilion county, asking that appellant be compelled to re-place the small drain across her land as it was originally laid. The drainage commissioners were first made parties, but the bill was afterwards dismissed as to them. The cause was referred to a master to take evidence, which is made a part of this record. He recommended that the relief prayed for be granted as to the defendant, Mrs. Dunn. The circuit court approved the master’s report and entered a decree commanding appellant to remove the filling and obstruction placed in the former ditch and restore the same and re-construct the tile so as to give the water from Youmans’ land free passage, whereupon an appeal was prayed to this court.
Counsel for appellee insist that there is no record in the drainage proceedings of consent by Youmans to the taking up of the small tile and re-laying it in the road, and that this cannot be proved by parol; that where the law requires records of proceedings to be kept by drainage commissioners, as in this instance, such records cannot be contradicted, added to or supplemented by parol. (People ex rel. v. Madison County,
It is contended that appellee will not be protected unless this writ is granted, because the highway commissioners could at any time 1;ake up the small drain which was constructed along the highway. The highway commissioners act ex officio as drainage commissioners, but in putting drains in highways they act ordinarily as highway commissioners and not as drainage commissioners. It is not entirely clear whether, in permitting this drain to be put in the highway, they considered themselves acting as highway commissioners or as drainage commissioners. As appellant, Mrs. Dunn, owned the fee to her land in the east half of the road in question, subject only to the public easement, it might well be argued that on the facts shown here she would have a .right to run this drain in the highway, provided she did not interfere with the public easement. The testimony is uncontradicted that the laying of the drain in the highway was a benefit to the road, and not an injury, and therefore a benefit to the public. Highway commissioners have a right to lay tile in the road and to make contracts with adjoining owners for that purpose. (Hurd’s Stat. 1905, chap. 121, sec. 6, p. 1722.) The act of 1889, to legalize drains constructed by license, found on pages 832 and 833 of Hurd’s Statutes of 1905, provides that whenever drains have been constructed in accordance with this act none of the parties interested therein shall, without the consent of all the parties, fill the same up or interfere with them, and that the license, consent or agreement with the parties need not be in writing, but shall be as valid and binding in parol as in writing. The Appellate Court for the Second District in Daun v. Cooper,
What we have said here in no way conflicts with Ribordy v. Murray,
To entitle a person to relief by injunction he must establish an actual and substantial injury, and not merely a technical or inconsequential wrong entitling him to nominal damages; and this is true whether the injury be single or continuous. The courts move with caution in granting any injunction, and especially in granting those of a mandatory character. As a rule they grant the last only to prevent extreme or very serious damage. (16 Am. & Eng. Ency. of Law,—2d ed.—342, 360, and cases cited; Gray v. M. R. R. Co.
The decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill for want of equity.
Reversed and remanded, with directions.