220 Ill. 264 | Ill. | 1906
delivered the opinion of the court;
Appellant seeks to reverse the decree of the court below upon the ground that no nuisance was proven or no actual or prospective legal damages or injury shown, and that equity .will not enjoin the owner of a dominant heritage when the increased fiowage or pollution of water does not constitute a nuisance or cause the owner of the servient estate any substantial injury or damage.
As shown by the foregoing statement of facts, the ditch in question was constructed by special assessment of lands between the years i860 and 1870, under and by virtue of an act passed February 15, 1855, (Private Laws of 1855, p. 576,) which was held invalid. It was cut through a ridge which formed a natural water-shed, the waters on the west flowing into the north- branch of the Chicago river and those on the east into Lake Michigan. It was dug for the purpose of draining a portion of the wet lands lying west of the ridge, known as the “Skokie swamp.” It was therefore not a natural water-course and not governed by the law applicable to natural water-courses, but was an artificial channel. For at least thirty-five years after its construction it was used for the original purpose for which it was dug, and no other. That purpose being to drain the lands west of the ridge, fixed the purpose for which it could subsequently be used, except by the unanimous agreement of the parties who caused it to be dug. This use was still firmly fixed by the great lapse of time between its original construction and the commission of the acts of the defendant below complained of in the bill.
In Washburn on Easements and Servitudes (2d ed. 53) it is said: “Where an easement, like an artificial drain, for instance, has been created and granted for a particular use and purpose it cannot be changed by the grantee to another though like use, nor can the grantee increase the amount or extent of such use beyond what was originally intended and embraced in the grant. Thus, A granted to B a right to construct and'maintain an artificial trench across A’s land, to drain the water from a certain cleared parcel of land by ditches made thereon discharging into this trench. The grantee afterwards drained the specific parcel by ditches running in a direction other than to this trench, but cleared another parcel and drained the water from that by ditches running into this trench. It was held that he had no right, under such grant, to increase the quantity of water intended to be thereby discharged through the trench, and that he had no right to discharge water coming from other sources than that specified in the grant, although it might not exceed in quantity that which was contemplated to flow through the trench, even though while doing it the grantee forbore to use it for discharging the water originally intended to flow through it.” The same author, on page 121, says: “In considering user and enjoyment as evidence of possession of the prescriptive right, it will be proper to inquire what the nature and character of such use must be in order to constitute such evidence, before attempting to apply the same to the different classes of easements. In the first place, the possession or enjoyment of what is claimed must be long continued as well as peaceable. What shall be taken to be a sufficiently long period of use or enjoyment to create a prescription or presumptive grant, in the modern use of the term, is understood to correspond with the local period of limitation for quieting title to land. * * * In Illinois the rule would be the same if, as is doubtless the case, the period of prescription and limitation as to lands is the same.”
In 1889 the legislature passed a statute (Hurd’s Stat. 1903, chap. 42, par. 187, p. 772,) which provides that whenever any ditch or drain, either open or covered, has been heretofore constructed by mutual consent, license or agreement of the owners of adjacent lands, either separately or jointly, so as to make a continuance over the lands of said several owners, or where the owners of the adjoining land shall by mutual license, consent or agreement be permitted to connect a drain with another already so constructed, or where the owner of the lower land has connected a drain constructed by the owner of the upper land, then such drain shall be held to be a drain for the mutual benefit of all the lands so interested therein. That statute, and the purpose for which this drain was originally constructed, together with the purpose for which it was continually used for thirty-five years, fix upon it the rights of the adjoining land owners and duly establish the purposes for which it may be rightfully used. For twenty years after its construction the village of Kenilworth was not in existence and there was no such institution as the Kenilworth Sanitarium. Fifteen years prior to the filing of the bill the village was organized as a municipal corporation, and streets and alleys were laid out and houses built therein. The ditch, as before said, ran directly through the village, and it became necessary to construct bridges and crossings over it at the streets and alleys, and it was of the utmost importance to the inhabitants that the substances emptied into it should be clean and wholesome and in no way injurious to the public health. The owners of the various pieces of property along the ditch and in the village succeeded to the rights of the owners of the lands who had previously owned them. They could enforce the rights of the prior owners, and nothing could be emptied into the ditch without their consent, injurious to the public health, after the organization of the village any more than it could have been done before. A few years prior to the filing of the bill the Kenilworth Sanitarium was established near the ditch west of the ridge, and it sought to drain its sewerage into the ditch.
It is insisted that the evidence does not show that this sewerage would be a nuisance and that no prospective legal damages are shown. It is a well known fact that sewerage emptied into either a natural or artificial stream pollutes its water and renders it dangerous to public health and safety. Prior to the building of the sanitarium no sewerage whatever had been emptied into the ditch. If appellant is permitted to empty its sewerage into the ditch, every other property owner along its line and adjacent thereto would have the same right, and consequently the ditch, instead of being an outlet for the low lands west of the ridge so that they might be cultivated, would become an open sewer running through the center of the village,-—and it certainly will not be seriously contended that private property owners would have any such right. The evidence also shows that the ditch empties into Lake Michigan in such a way as to endanger the water supply of the village if allowed to become polluted, and this, of itself, would be sufficient to prevent appellant from using it for sewerage purposes.
It is insisted, however, that appellant was constructing and has completed a plant for the handling of its sewerage in accordance with the most improved modern system; that water from its well is used to carry the sewerage to this plant, wherein the sewerage is treated and separated from the liquid, and that the effluent water therefrom will be free from odor and in no sense pollute or contaminate the other waters passing through the ditch, and as the waters of this ditch were never used for drinking or domestic purposes no injury would result. The question as to the process through which the sewerage was to pass in order to purify it depends upon the manner in which that system is operated, the thoroughness with which the work is done, and that the sewerage should be thus continually purified in order to remove the danger. While there is evidence in the record tending to show that some of the impurities are removed, yet there is also evidence to the effect that the system in use is not as complete and efficient as is claimed. We are of the opinion that the methods pursued are so uncertain and dependent upon the manner in which they are operated that a court of equity should protect the appellees against the use of the ditch for carrying off such sewerage.
That equity will not enjoin the owner of a dominant estate when the increase of the flowage or pollution of water does not'constitute a nuisance nor cause the owner of the servient estate any substantial injury or damage, cannot, in our opinion, be sustained. It is a well established rule of law that when the act done is such that by its long continued repetition and operation it may become the foundation or the evidence of an adverse right, equity will intervene to prevent such continuance. In Plumleigh v. Dawson, 6 Gilm. 552, this court held that where a party is deprived of a substantial right the law will imply damage, for otherwise, before the party would be able to prove actual damage, the wrongdoer might claim a right of prescription or upon the presumption of an agreement. In Indianapolis Water Co. v. American Strawboard Co. 53 Fed. Rep. 970, it was held that a perpetual injunction will be granted to restrain the pollution of water, especially if it is of a continuous nature, even if the plaintiff could only recover nominal damages at law, because of the inconvenience of repeated action and the danger of the acquisition of the adverse right to pollute it by the continuance for twenty years.
Our examination of the whole record leads to the conclusion that the decree of the superior court is right, and it will therefore be affirmed.
Z?*«™ affirmed.
