141 Ill. App. 409 | Ill. App. Ct. | 1908
delivered the opinion of the court.
From both the pleadings and the evidence it appears that the question involved in this appeal is the right of .the appellees, who own land on the Kankakee river lower down the river and adjoining the premises of appellant, to back the water of the river upon the premises of appellant by the construction of a dam upon their own premises. Appellees in their answer claim the right under a grant by a deed to their grantors made by grantors of appellant while said grantors of appellant owned said overflowed premises, and by user under such grant. The evidence shows that in 1852, one Wylie, who at that time owned the premises now owned by appellant, granted the right to build on the premises now owned by appellees a dam of the height of six feet above the bed of the river, and that appellees have become the owners of said grant. The appellees by their defense claim a perpetual easement in the lands of appellant. Such an interest in land is a freehold. Chaplin v. Commissioners of Highways, 126 Ill. 264 (overruling Lucan v. Cadwallader, 114 Ill. 285, and Eckhart v. Irons, id. 469); Perry v. Bozarth, 198 Ill. 328; Foote v. Marggraf, 233 Ill. 48; 10 Am. & Eng. Ency. of Law, 398 (2nd Ed.); 1 Preston on Estates, 13; Hewlins v. Shippam, 5 Barn. & Cress, 221. The right granted by deed to maintain a dam perpetually at a certain height and thereby cover the land of another to the extent that a dam of the height contended for would flood it is an easement that involves a freehold.
This court has no jurisdiction of a case involving a freehold and the clerk is therefore directed under section 102 of the Practice Act of 1907 to transmit the transcript and files of this case to the Supreme Court.
Transferred to Supreme Court.