| Ill. | Oct 19, 1899
delivered the opinion of the court:
First—It is claimed on the part of the plaintiff in error, that the court below erred in applying the act of 1889 in relation to drains, approved June 4, 1889, to the issues and evidence in this case. Section 1 of said act of June 4, 1889, provides: “That whenever any ditch or drain, either open or covered, has been heretofore or shall be hereafter constructed by mutual license, consent, or agreement of the owner or owners of adjoining or adjacent lands, either separately or jointly, so as to make a continuous line upon, over, or across the lands of said several owners, * "* * then such drains shall be held to be a drain for the mutual benefit of all the lands so interested therein.” (Laws of Ill. 1889, p. 116).
The proof shows that at some time between 1868 and 1871, by an arrangement between one Scott, who owned the north-west quarter of the north-west quarter of section 22, now owned by the defendant in error, Sain; and one Jones, who then owned the east half of the northwest quarter, now owned by the plaintiff in error; and one Peck, who owned the west half of the north-east quarter of said section 22, a ditch or drain was constructed running east and west substantially in the line of the ditch described in the statement preceding this opinion. The testimony leaves it somewhat in doubt, whether the ditch then constructed ran directly east across the premises of Jones, now owned by the plaintiff in error, or whether it ran a little north of an east and west line. The evidence, however, is clear that, in 1877, Scott, who then owned the north-west quarter of the north-west quarter of section 22, now owned by the defendant in error, Sain, cut a ditch straight across the premises of the plaintiff in error, to connect with the natural draw above referred to, with the consent and by the permission of the plaintiff in error. In cutting the ditch in 1877, Scott varied somewhat from the line of the old ditch dug between 1868 and 1871, but he proceeded substantially upon the same line, upon which the old ditch had been run. Whether the ditch dug by Scott in 1877 was an entirely new ditch, or merely the opening of the old ditch, it was a ditch constructed by the mutual license, consent, and agreement of the owners of the adjoining lands, so as to make a continuous line upon, over, or across their lands. We are, therefore, of the opinion that the act of 1889 is applicable to the issues made by the pleadings and to the proofs introduced in the case.
Second—It is claimed on the part of the plaintiff in error, that the court below erred in issuing" an injunction, which was mandatory, and not merely preventive, in its character. The decree was, that the plaintiff in error should be enjoined from continuing the obstruction of the ditch on the premises of the plaintiff in error, and from permitting it to remain filled up and obstructed, and that the plaintiff in error should “remove said filling and obstruction of said ditch, so as to restore to said complainants the right to the free flow of the waters through said ditch.”
Undoubtedly, the general rule is, that an injunction is a preventive remedy merely, and cannot be so framed as to command the party to undo what he has done. (Wangelin v. Goe, 50 Ill. 459" date_filed="1869-06-15" court="Ill." case_name="Wangelin v. Goe">50 Ill. 459). But it has been said that a court of chancery, by framing the order for injunction in an indirect form, can compel a defendant to restore things to their former condition, and, so, effectuate the same results, as would be obtained by ordering a positive act to be done. (Kerr on Injunction,—3d Eng. ed.—p. 48). “While the jurisdiction of equity by way of mandatory injunction is rarely exercised, and while its existence has even been questioned, it is nevertheless .too firmly established to admit of doubt.” (High on Injunctions, sec. 2). A mandatory injunction, commanding the plaintiff to do" some positive act, will not be ordered except upon final hearing, and then only to execute the judgment or decree of the court. A mandatory injunction will be issued in cases of obstruction to easements or rights of like nature; and an obstruction will be ordered to be removed, as part of the means of restraining the defendant from interrupting the enjoyment of the said easement or right. (Rogers Locomotive and Machine Works v. Erie Railway Co. 5 C. E. Green,—N. J. Eq.—379). In Earl v. DeHart, 12 N. J. Eq. 280, an injunction was prayed against the defendants to enjoin and restrain them from permitting the channel of a water-course to remain filled up and obstructed, and from further filling up and obstructing the same; and it was there held, that the complainant was entitled to have the obstruction removed, and that a court of chancery could exercise the power to abate nuisances, as well as to prevent the erection of nuisances, in clear cases.
In Corning v. Troy Iron and Nail Factory, 40 N.Y. 191" date_filed="1869-03-20" court="NY" case_name="Corning v. . Troy Iron and Nail Factory">40 N. Y. 191, it was held, that equity will interpose by a mandatory injunction to compel the restoration of running water to its natural channel, when wrongfully diverted therefrom, at the suit of the party, whose lands include either the whole or a part of said channel; and that the grounds for equitable, interposition in such case are two-fold: First, inadequacy of any legal remedy to secure the party in the enjoyment of his right to have the water flow in its natural channel; and second, to prevent a multiplicity of suits for damages, accruing from the daily and continuous wrongful diversion of the stream.
In Rothery v. New York Rubber Co. 90 N.Y. 30" date_filed="1882-10-10" court="NY" case_name="Rothery v. . New York Rubber Co.">90 N. Y. 30, it was held that, where one wrongfully erects and maintains a dam upon his lands, which sets back the water of the stream upon lands of a neighbor, a judgment is proper, directing the lowering of the dam to such a height, as will abate the nuisance.
High, in his work on Injunctions, (sec. 804,) says: “A mandatory injunction may be granted to compel the restoration of water to its natural channel, which has been wrongfully diverted therefrom.” And, in such case, it makes no difference whether the channel dammed up, or from which the water is diverted, is a natural watercourse or an artificial ditch. (Earl v. DeHart, supra).
In Wessels v. Colebank, 174 Ill. 618" date_filed="1898-10-24" court="Ill." case_name="Wessels v. Colebank">174 Ill. 618, we held that the Drainage act of 1889 above referred to operates to convert all parol licenses for ditches and drains, therein provided for, into perpetual easements, where such licenses have not been revoked within the time limited by the act, that is to say, within one year from the taking- effect of the act; and that the act has the effect to make a drain, constructed in the manner therein indicated, an encumbrance upon the lands through which it runs; and that the rig'ht to have the ditch maintained, and to have the water flow through it unobstructed, is a permanent one, binding upon the owners of the land and their grantees. The case of Wessels v. Colebank, supra, has held that, under the act of 1889, a twenty years’ user of a ditch across the land of another is not necessary to the acquirement of the easement.
In the case at bar, the ditch in question was constructed across the premises of the plaintiff in error by the mutual license, consent, and agreement of the owners of the adjoining lands, whether such owners were the former proprietors, Scott, Jones, and Peck, or Scott and plaintiff in error alone. Hence, the right of the defendants in error to have the ditch maintained and to have the water flow through it unobstructed, was, by the act, converted into a perpetual easement, if there was no revocation" by the plaintiff in error of the license to make the ditch, which was given to Scott in 1877; Therefore, the defendants in error, having such perpetual easement, were entitled, under the authorities already quoted, to invoke the interposition of equity by a mandatory in- , junction ordering the removal of the obstruction. The granting of a mandatory injunction of this character was approved of in Ribordy v. Murray, 177 Ill. 134" date_filed="1898-12-21" court="Ill." case_name="Ribordy v. Murray">177 Ill. 134.
Third—It is admitted by the plaintiff in error, that a parol license was granted to Scott in 1877 to construct the ditch in question, or to open the old ditch formerly constructed across the land of plaintiff in error. Section 4 of the act of 1889 provides, that the right to revoke such parol license must be exercised within one year from the time of the taking effect of the act, and, if not thus exercised, and if suit is not brought within said year to enforce the revocation, the party, granting the license, shall be forever barred from thereafter revoking the same.
The evidence does not show, that there was ever at any time any formal revocation by the plaintiff in error of the license, granted to Scott ,in 1877. Plaintiff in error says, that he permitted Scott to dig the ditch upon condition that, if it did not fulfill the object for which it was constructed, plaintiff in error should have the right to fill it up; and that it did not fulfill such object; and that Scott told the plaintiff in error that the latter could fill it up, if he chose to do so. But no act was done by the plaintiff in error, indicating that he intended to exercise the alleged privilege of filling up the ditch. On the contrary, the evidence shows that, in 1882 or 1883, one or two" years before defendant in error, Sain, purchased the property from Scott, or became the owner thereof through Scott, the ditch was repaired, and opened anew, by the owners of the north-east quarter of section 21, lying west of the highway and opposite the westward opening of the ditch. This repairing and opening anew in 1882 or 1883 was done, if not with the affirmative consent of the plaintiff in error, at least with his acquiescence. Section 3 of the act of 1889 provides that, whenever drains are constructed in accordance with the act, none of the parties interested therein shall, without the consent of all the parties, fill the same up or obstruct the flow of water therein; and that the license, consent, or agreement of the parties, mentioned in the act, may be inferred from the acquiescence of the parties in the construction of the drain.
If there was a parol agreement between Scott and plaintiff in error, authorizing the latter to revoke the license given to Scott, it was an unexecuted parol agreement, and was never acted upon, so far as is shown by this record. A parol agreement between the owners of the dominant and servient tenements will only operate to extinguish the easement, when such agreement is acted upon; and an unexecuted parol agreement will have no such effect. (10 Am. & Eng. Ency. of Law,—2d ed.—p. 432; Jones on Easements, sec. 847).
The proof does not show clearly an abandonment of the easement by Scott. The burden of proof to show such abandonment is upon the party claiming its existence; and such party must establish the fact by clear and unequivocal evidence. (Jones on Easements, sec. 850).
The evidence is clear, that plaintiff in error took no steps to fill up the ditch until April, 1896, long after the act of 1889 had gone into effect, and long after the period, granted by that act for the revocation of the previous license, had elapsed. The failure to execute, by the filling up of the ditch, the parol agreement, which is alleged to have been made between the plaintiff in error and Scott, warrants the conclusion, that the condition, upon which the agreement was based, did not arise. Nor are the acts of "the plaintiff in error, in permitting the ditch to be repaired and improved several years after itfe construction by Scott, consistent with the claim, that he revoked the parol license given to Scott. The parol agreement, if made, that he- might fill up the ditch, was not valid, inasmuch as it was not filled up until April, 1896, after the defendant in error, Sain, had become the owner of the land formerly owned by Scott, and after the land owners to the west of plaintiff in error, including the highway commissioners, had, for a number of years, exercised the.privilege of draining into the ditch. The proof tends to show that the defendant in error, Sain, was allowed by the plaintiff in error to construct tile, drains upon his land upon the faith of the license granted by the plaintiff in error to drain, through the ditch in question. -“A parol license is irrevocable, when the conduct of the licensor has been such that the assertion of the legal title would operate as a fraud upon the licensee.” (Jones on Easements, sec. 76).
The decree of the circuit court is affirmed.
■Decree affirmed.