| Ill. | Sep 15, 1879
delivered the opinion of the Court:
A vast amount of testimony has been taken on both sides of this case, and the record is consequently quite voluminous. Nevertheless.we have, in view of its unquestioned importance, endeavored to arrive -at a clear .understanding of the facts. With respect to the evidence, it is to be remarked that there is really but little conflict to be found in it, except as to matters of mere opinion, about which honest men of equal intelligence might reasonably be expected to differ.
As to the salient facts in the case, and upon which the rights of the parties must in the main depend, the evidence is entirely harmonious. The ownership of the several pieces of land mentioned in the bill; their location with respect to each other; the topography of these lands and surrounding locality, the existence and locality of the pond or slough upon defendant’s land; the fact that it was and has been for many years a natural receptacle and reservoir for surface water, and occasionally, also, for the waters of Hal lock creek and other small streams; the fact that appellant was constructing the ditches and embankments in the manner, and for the purpose charged in the bill; and finally, th.e fact that the waters to be thus collected together were to be thrown upon the lands of appellees, are substantially admitted by the pleadings, and shown by the conclusive and concurrent testimony of all the witnesses, including appellant himself.
With these facts admitted, it does not require the opinions of witnesses to enable the court to see that such an' injury was about to be inflicted upon appellees as equity would interpose to prevent. When certain facts are admitted or proven, the court takes notice, without further proof, of all such presumptions and inferences arising from them as are warranted by uniform experience, and also all such consequences as are known to flow from the laws which govern matter, and which are applicable to the proven or admitted facts. For instance, when it is shown that the roof of a house, without gutters or other obstructions, is sloping and projects over an adjoining building, the court may well conclude that the drip in time of rains will fall on such adjacent building. And the opinion of any number of witnesses to that effect would scarcely strengthen the conclusion. So, where it is shown that land of one person .slopes toward an .adjacent tract belonging to another, and the owner of the former is threatening by artificial means to gather the surface water from his own and other contiguous lands in large quantities, and by means of ditches is preparing to conduct it to a point on his own land near the adjacent land, towards which his own slopes, and- there permit it to escape, it does not require the opinions of witnesses to establish the conclusion that if the surface water is permitted to be thus collected and discharged, it would certainly flow upon such adjacent land in unnatural and undue quantities. And in such case, Avhere it further appears that the land upon AArhich this undue proportion of surface Avater is about to be thrown is so unusually Ioav and wet that it is barely susceptible of cultivation, and Avithout any drainage Avhatever, the court Avould be fully warranted, without further testimony, in reaching the conclusion that the land would be thereby injured, and the owner entitled to redress.
It is the right and duty of courts, in determining what conclusions or results may be fairly drawn from testimony, to avail themselves not only of their knowledge and experience in the practical affairs of life, but also of matters of science. A knowledge of physics is often indispensable in determining what inferences shall be drawn from an existing state of things. The laws of gravitation, hydraulics and mechanics are of constant application in judicial inquiries; and some of them may be usefully applied here.
It is urged by appellant, that without these structures all the surplus water would0 be carried upon appellees’ lands any way, and that with the structures nothing more than the surplus water could reach them. The argument is specious and the position untenable.
It clearly appears from the evidence, that the slough upon appellant’s land becomes substantially dry every season, and that in case of freshets or sudden heavy rains, it is fed, outside of surface water, mainly by Hallock’s creek; and the conceded effect of the embankment on the east and south sides of the slough is to confine all the waters supplied by Hallock’s creek to the east and south sides of the slough, when, but for the embankment, they would be equally distributed all oyer it. Without these structures, when the slough was already dry, or nearly so, it would take a vast amount of rain before it would overflow at all, and until such overflow none of this water would ever reach complainants’ lands; whereas, by confining it within a comparatively small comjiass, it would, by means of the ditch, force its way southward and be precipitated at once upon appellees’ lands. By this means, doubtless large quantities of water would often be thrown upon appellees’ lands that would otherwise be confined within the slough until it would be absorbed in the earth and pass off by evaporation.
The consequences here suggested are not speculative at all. They are the necessary results of known physical laAvs.
But outside of these considerations, when we view the case in the light of the opinions of witnesses who were familiar with the lands involved, the structures being made, and the slough and its surroundings, we see nothing to change the convictions forced upon us by the admitted and clearly established facts as heretofore stated. The decided weight of opinion upon the merits is unquestionably with appellees.
It is claimed by appellant’s counsel, there is a fatal variance between the allegations in the bill and the proofs, in this: that it is charged in the bill that appellant was attempting and intending to drain all the water off the creek and pond upon complainants’ land, when the proofs show that so much of the pond as lies north and west of the embankment are effectually prevented from overflowing complainants’ lands.
This is sustantially true, but there is nothing in the objection. Conceding it to be a variance at all, it is not that character of variance that is fatal to a recovery.
.The variance here complained of consists in the fact that complainants did not prove the injury to the full extent charged. There is no rule of law requiring this to be done. Where a part only of the allegations are proved, and the part thus proved shows a right of action, the plaintiff will be entitled to recover pro tanto, and this rule obtains both at law and in equity. It is only when the allegation is descriptive of the cause of action, and is not severable, that a variance is fatal. For instance, in the ordinary case of the foreclosure of a mortgage, it is charged in the bill that the mortgage was given to secure two separate notes, describing them, and that they are both due and unpaid, and the proofs show that one of the notes, before the filing of the bill, was fully paid. In such case there could be no question of the complainants’ right to a foreclosure as to the note not paid, yet the case supposed is in principle like the one before us.
The thing Avhich appellant was engaged in doing and threatening to consummate was a tort or wrong, and it is a familiar doctrine of law that torts are severable, and that it is only necessary to prove so much of the wrong charged as constitutes a cause of action, to entitle the plaintiff to a recovery. We repeat, there is nothing in the objection. While the owner of land may use it as he pleases for habitation and other lawful purposes, yet his right in this respect is subject to the qualification that he must so use it as to not inflict an injury upon his neighbor.
By the term injury here we have no reference to those slight inconveniences that often occur by the ordinary and legitimate use of land, but we have reference to those palpable and substantial injuries which are not sanctioned by usage and do not result from the ordinary use and enjoyment of one’s own property. So, while it is perfectly proper for the owner of land to use and cultivate it according to the ordinary methods of good husbandry, although by doing so it may interfere with the natural flow of surface water in passing over his own land, so as to increase or diminish the amount that would otherwise reach the land of an adjacent proprietor and thereby cause him an injury for which the law would afford no redress, yet such "owner has no right, by the construction of ditches and embankments or other artificial structures of a similar character, to collect together the surface waters from his own lands or those of other persons, and precipitate them in undue and unnatural quantities upon the lands of his neighbor to his injury.
The remedy by injunction in cases of this character is clearly established. Indeed,'it is hot seriously questioned in this case. To have permitted appellant to complete the structures in question would have resulted in irreparable injury to appellees, affecting alike their health, homes and lands. It was a threatened injury of the gravest character, and therefore strongly demanded the interposition of a court of equity.
The decree of the circuit court was right and should have been, as it was, affirmed by the Appellate Court.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.