280 F. 966 | 7th Cir. | 1922
(after stating the facts as above).
Plaintiff’s urge is that in Groff v. Ankenbrandt, 124 Ill. 51, 15 N. E. 40, 7 Am. St. Rep. 342, the only question was the sufficiency of one count of the declaration, which did not allege that defendant erected the levee. In this, we think that counsel is in error. What the. court said was:
“Inasmuch as tbe count does not state that the levee or embankment was erected by the defendant or originally placed by him where it is, it will be presumed that such levee or embankment was already upon the land when the defendant became possessed of it, and that consequently he was only responsible for allowing the obstruction to remain as it was when the premises came into his hands.”
“Where a party comes into possession of land, as grantee or lessee, with an existing, nuisance upon such land, and he merely permits the nuisance to remain or continue, he cannot be held liable in an action for damages until he has been first notified or requested to remove the nuisance.”
In Tetherington v. St. Louis, Troy & Eastern R. Co., 226 Ill. 129, 132, 133, 80 N. E. 697, 699 (12 L. R. A. [N. S.] 571), the Supreme Court reaffirmed the holding in the Groff Case, but held that authority not applicable to the facts in the Tetherington Case. After quoting the Illinois statute (Hurd’s Stats. 1917, c. 114, § 20) relied on in this case by plaintiff, the court said:
“This section, we think, changed the rule of law with reference to nuisances as held in the Groff Case, supra — at least in so far as applied to railroads constructed after the passage of the act.”
The Tetherington Case can have no application here, because it there appeared that the embankment was built by the original company, in violation of the express terms of the act, in that it failed and neglected to construct necessary culverts and sluices to protéct the adjoining owners against overflow, whereas in the case at bar the proofs show that all necessary openings were made so as not to obstruct the natural flow of the waters, and that the bridge in question, when built by the Wabash Railroad, many years before the Director General had anything to do with it, was constructed pursuant to the request of property owners, and was much more than sufficient to meet all of the then contemplated requirements as a new artificial water course; and, too, it was built long prior to the enactment of the statute of 1891.
The District Court of Indiana cited with approval the Groff Case in Central Trust Co. v. Wabash, St. L. & P. Ry. Co. (C. C.) 57 Fed. 441. The latter case was quoted from and approved in Phila. & R. R. Co. v. Smith, 64 Fed 679, 682, 12 C. C. A. 384, 27 L. R. A. 131 (3d C. C. A.). In 1916 the Eighth Circuit Court of Appeals, in Union Pac. R. Co. v. Campbell, 236 Fed. 708, 711, 150 C. C. A. 40, cited and approved the Smith Case and Central Trust Co. Case, supra.
Before the Tetherington Case, decided in 1907, Wabash R. Co. v. Sanders, 47 Ill. App. 436, was decided in 1893, and the court there said, referring to the statute of 1891:
“This section shows that it applies to roads constructed after that act went into effect.”
Renner v. St. Louis, Iron Mt. & S. Ry. Co., 197 Ill. App. 11, decided in 1915, is to the same effect.
In Ribordy v. Murray, 177 Ill. 134, at page 140, 52 N. E. 325, 327, a water course is described as follows:
“If tile conformation of the land was such as to give the surface water flowing from one tract to another a fixed and determinate course, so as to uniformly discharge it upon the servient tract at a fixed and definite point, the course thus uniformly followed by the water in its flow is a water course, within the meaning of the rule applicable to this class of cases. Lambert v. Alcorn, 144 Ill. 313.”
In Lambert v. Alcorn, 144 Ill. 313, 324, 33 N. E. 53, 56 (21 L. R. A. 611), supra, the court added:
“Doubtless such water course can exist only where there is a ravine, swale, or depression of greater or less depth, and extending from one tract on to the other, and so situated as to gather up the surface water falling upon the dominant tract and to conduct it along a defined course to a definite point of discharge upon the sérvient tract.”
Plaintiff relies upon Broadwell Drainage Dist. v. Lawrence, 231 Ill. 86, 99, 83 N. E. 104, 108, in support of his contention that the water as it flowed under the bridge was a natural water course. All that that
“Where one who owns a water course in which another is interested or by the use of which another is affected does or suffers acts to be dono affecting the rights of other proprietors whereby a state of things is created which ho cannot change without materially injuring another who has been led to act by what he himself had done or permitted, the courts often apply the doctrine of estoppel, and equity, and sometimes law, will interpose to prevent his causing such change to be made.”
Even if it appears that property owners, including the plaintiff, gained some prescriptive right in the flow of the water under bridge 277’A, the underlying principle stated by Washburn and adopted by the Illinois courts is based upon the proposition, not that either party may be compelled by the other to make changes, but that the existing conditions must continue without change. In C., B. & Q. R. Co. v. Ives, 202 Ill. 69, 66 N. E. 940, the court said:
“In order that a way may be established by prescription the use and enjoyment thereof must have been adverse, under a claim of right, exclusivo, uninterrupted, and with the knowledge and acquiescence of the owner of the land in or over which the easement is claimed, for the period of twenty years. Rose v. City of Farmington, 196 Ill. 226. A mere permissive use never ripens into a proscriptive right. Washburn on Easements, p. 132.”
The Indiana Court of Appeals, in McCaslin v. State, 38 Ind. App. 184, 75 N. E. 844, said:
“In Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779, it is said that, in order to constitute adverse possession, five indispensable elements must appear: ‘(1) It must be hostile and under a claim of right; (2) it must bo actual ; (3) it must he open and notorious; (4) it must be exclusive; (5) it must be continuous.’ In support of this rule the court cites numerous authorities. In Peterson v. McCullough, 50 Ind. 35, the court said: ‘To acquire a right by prescription, there must be an actual enjoyment. Prescription acquires for the party precisely what he has possessed, and nothing more, and in proving a prescription the user of the right is the only evidence of the extent to which it has been acquired. The use and enjoyment of what is claimed must have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate, in, over, or out of which the easement prescribed for is claimed, and while such owner was able in law to assert and enforce his rights, and to resist such adverse claim if not well founded.’ ”
These authorities state the general rule with reference to rights by prescription. The piles or bents under bridge 277A were part of the bridge when it was constructed. When the property owners dug the trench under the bridge the bents and piles were there, and have been ever since. Neither the plaintiff nor any property owner ever had any right to the flow of water under the bridge, except as its flow was affected by the presence of the piles and bents. It necessarily follows, then, that plaintiff never had any right which was hostile to the rail
This case must not be confused with cases arising under drainage and other acts- in Illinois, such as Cache River Drainage Dist. v. C. & E. I. R. Co., 264 Ill. 97, 105 N. E. 699, cited by plaintiff, and East Side Levee & San. Dist. v. East St. L. & C. Ry., 279 Ill. 123, 116 N. E. 720.
4. It appears that the diverting of the waters, the right to the continuance of which was gained by prescription, if at all, did not begin at the point where the waters went upon the defendant’s right of way and under the bridge, but that the diversion began some hundreds of yards toward the east, and that the railroad company at no time had anything to do with diverting the waters. The record discloses that, if the small levee, built “about the time the bridge was built, had not been increased from time to time, great quantities of water would have at times continued to flow over the plaintiff’s land, and never would have arrived for passage under the bridge, and it seems clear from the record that without additional height being added to the levees the débris, driftwood, etc., would probably not have reached the bridge at all, but would have gone off over plaintiff’s land. There is nothing in the record whatever to show that the levee had been there for 20 years or more. It also appears that plaintiff himself contributed to the injury by placing across the waterway an insecure bridge, which was carried down by the urater, lodged against the bridge, and formed one of the main obstructions catising the overflow. Other property owners placed rail and other fences in the stream that were doubtless carried down to the bridge by high water.
The judgment is reversed, and the cause remanded for proceedings 'in harmony with this opinion.