135 Ill. 388 | Ill. | 1890
delivered the opinion of the Court:
We have carefully examined this record, and can not concur in the conclusion reached by the circuit and Appellate Courts. Obstruction of complainant’s access to the road in question is not an element of this case. There is no allegation in the bill to support a decree on that ground. The dimensions of the ditch about to be dug áre.not stated, and the only allusion in the bill to any such obstruction is the statement, that “in addition to the fact that your orator will be, in effect, shut off, from said public road by said ditch, large quantities of water, ” ¡ etc. Ho one will seriously contend that the bill could be maintained as one to enjoin the defendants from obstructing complainant’s ingress and egress to his premises by means- of' said road.
Heither the allegations of the bill nor the evidence satisfactorily show that the work contemplated by the commissioners would have materially changed the flow of the water as it existed at the time the bill was filed, to the injury of appellee., It is admitted that long prior to that time the natural flow of ■ the water from the west part of appellee’s lands had been' changed, and at that time flowed through a culvert across the' road a short distance west of the elevation described in the bill, and while it flowed at one time from the mouth of said culvert over the adjoining premises on the south, the proprietors of that land had for several years maintained a deep ditch along the south side of the road east to the Hoffman branch, and had also maintained a dam or levee at or opposite to the mouth of said culvert, thereby forcing the water cording from the north and west through said ditch on the south of' the road, eastward. There is no allegation in the bill that it was the intention of appellants to dispense with said culvert. On the road in question the Hoffman branch is spanned by a bridge, south of which said south ditch empties into said branch, and north of which the ditch about to be made would have discharged its water.
It is difficult to determine, either from the bill or proofs, just what particular work or change in said road complainant sought to enjoin. One allegation is, “that defendants have declared their intention, and instructed their agent to proceed at once with said work.” On the hearing he introduced as a witness the road overseer, and asked him, among other questions, the following:
Q. “What instructions did the commissioners give you about digging a ditch through there ?
A. “They said to dig the ditch there, and put the culvert up in front of Hoyt’s house; and if they had been two hours later it would have been done.
Q. “Were you to take up the old culvert?
A. “Yes, sir.
Q. “What were you going to do with that ?
A. “I was going to put it in front of Hoyt’s building.
Q. “You were then going to dig a ditch so as to carry the water clear through ?
A. “Yes, sir.
Q. “You had commenced work ?
A. “Yes, sir; I think I worked a day.
Q. “Why was that culvert to be changed?
A. “I don’t know; I didn’t inquire the reason.”
This is the only evidence in the record as to what was about to be done when the injunction issued, and it shows that it was not the intention to confine the water from the west to the north ditch. The same quantity of water would have emptied into the Hoffman branch as before, the only difference being that it would have passed through two ditches instead of one; and if complainant’s lands would have been overflowed more than before, it would have resulted from the insufficiency of the outlet at the said bridge.
It is insisted that the preponderance of the evidence shows that the intention of the commissioners was to remove the culvert near complainant’s buildings, and confine all the water from the west to a north ditch. We think the best evidence of what they intended to do is the proof of what they ordered done and was being done when they were enjoined. But even on appellee’s construction of the evidence, it must be conceded that the witnesses who testified pm and con as to whether or not damages would result to complainant by the contemplated change, based their opinions on the proof before them as to what that change was. A large number of these witnesses testified, on behalf of appellee, that, in their opinion, by the change, the overflow of appellee’s lands near the said bridge would be increased, and he thereby damaged, and also that the change would not improve said road. An equally large number, and with as much intelligence, swear that no damage would so result, some of whom say that, in their opinion, the north ditch would benefit, rather than damage, appellee. These witnesses swear that the change would improve the road. It seems unreasonable to say, in the light of all the evidence, that the road would not be benefited by .ditching and grading it. It is clear, from the allegations of the bill and the proof, that to be of public utility it must in some way be.drained and graded. There is no evidence in this record showing that the commissioners were not in good faith intending to accomplish that object by the contemplated change. They are public officers, charged by law with the duty of “keeping in repair and improving, as far as practicable, all roads and bridges in their town; to construct permanent roads, beginning where most needed, so far as they have the means; to cause work on roads to be done timely, and in accordance with the best known methods of road making, by proper grading, and through draining, by tile or otherwise.” 2 Starr & Curtis’ Stat. chap. 21, sec. 2, p. 136.
The case made is not one of public officers proceeding illegally or without authority of law. The most that can, in any view of the evidence, be fairly claimed, is, that they were about to do a duty imposed upon them by law, in so unskillful a manner as to damage appellee, for which they would have been personally liable, as in Tearney et al. v. Smith, 86 Ill. 391. The question here is, does it appear, with sufficient certainty and clearness, that the work about "to be done was so far improper, and that it would so far have resulted in injury to appellee, as to justify the interposition of a court of equity by injunction ?
The rule laid down by Mr. Wood in his work on Nuisance, (sec. 788,) is quoted with approval in Thornton v. Roll et al. 118 Ill. 364, as follows: “But to entitle a party to relief in such cases, a very strong case must be made by the bill and sustained by the proof, as, if, on coming in of the answer, the fact of contemplated nuisance is fully denied, or if, upon the facts, there is a reasonable doubt of the effect of the erection, the injunction will be denied until the question of nuisance is determined by the actual use of the property.” See, also, Dunning v. City of Aurora, 40 Ill. 486, and High on Injunctions, sec. 488, cited in said case; also, Brush v. City of Carbondale, 78 Ill. 74; High on Injunctions, sec. 1240, and cases cited in note 1.
That disputes and differences of opinion will arise between land owners adjoining public highways, as to the best methods of improving them, and as to whether injury will result to abutting lands by a particular improvement, is inevitable. Our statute has wisely clothed the commissioners of highways with the discretion of determining these questions, and unless it is clearly alleged and satisfactorily proved that they are about to abuse that discretion, to the injury of a third party, courts will not interfere. To sustain the decree of the circuit court, on the facts disclosed by this record, would establish a precedent for interfering with and obstructing highway commissioners in the discharge of their duties in making, improving and repairing public roads, whenever two or more adjoining land owners and their neighbors may disagree as to how the work should be done, or the probable effect of work about to he done, on adjacent lands.
The judgment of the Appellate Court will be reversed, and the cause remanded to the circuit court of Madison county, with directions to dismiss the bill at the costs of the complainant.
Judgment reversed.