3 Ill. App. 476 | Ill. App. Ct. | 1878
The appellee is the owner of a farm in Bureau county, and the appellant of one in Stark county. The farms are separated by a public highway, the center of which is the line between the lands of the parties. The land of the appellee is slightly higher than that of appellant, yet the natural drainage is so gradual as to make no perceptible difference between the two farms relative to the amount of surface-water standing upon them. There is a slight depression upon the land of appellee, extending to and across the highway, and upon and across the land of appellant.
In the spring of 1876 the appellee constructed a tile drain, commencing near said highway and extending northerly along said depression for about twenty rods, thence dividing into two branches, running in a northwest and northeast direction for about forty rods, and ending in a flat or sag. The effect of this drain was at once to make the land of appellee dryer, and to increase the flow of water upon that of appellant, rendering quite a portion of it unfit for pasturage or cultivation. It appears, also, that in June, 1876, Mellor recovered a judgment against Pilgrim for sixteen dollars, before a justice of the peace, for damages sustained by him in consequence of the construction and continuance of said drain up to date of the commencement of said suit. This judgment was never appealed from, but was paid by appellee. This suit was commenced in the Circuit Court by appellant, to recover for damages sustained by him since said suit was commenced before the justice.
Upon trial in the Circuit Court verdict and judgment was had against appellant, and he appealed to this court.
That the appellee laid the drain as alleged is not denied ; that it caused the water to flow upon appellant’s land in increased volume, thereby damaging 1dm, cannot upon this record be successfully controverted.
A party purchasing land over which surface-water naturally flows from that of a coterminous proprietor, takes it with the burden of receiving such surface-waters, and cannot, by drains, dykes or other obstructions, impede or stop such natural drainage to the injury of the owner of the superior heritage; on the other hand, the owner of the superior heritage cannot, by any act of his, acquire the right to collect the surface-waters upon his land by artificial channels, and thus flow his neighbor’s land without his consent.
He cannot impose upon the land of an adjoining proprietor without his assent, or at least acquiescence, the additional burden of having the surface-water converted into a stream, when it is discharged upon his land.
He is bound to receive such surface-water as naturally comes to his land, but is not obliged to accept it to his injury in larger quantities or at different times than he otherwise would but for the voluntary act of his neighbor. Such we believe to be the rule in this State: Gillham v. Mad. Co. R. R. Co. 49 Ill. 484; Gormley v. Sandford, 52 Ill. 158.
This rule does not interfere with the right of the owner of land to make drains upon his own lands, and discharge their contents into natural watercourses, for in the case at bar there can be no pretense even that the depression shown to exist was of that character.
The whole case here is, that the appellee collected the surface-water upon his land, and from some parts of it which did not flow naturally over that of appellant, and discharged it in increased volume upon the farm of appellant. This the law gave him no right to do.
The instructions given by the court at the instance of the appellee, in so far as they are not in consonance with the views above expressed, are erroneous.
It is argued by counsel that the judgment rendered by the justice of the peace is a bar to the present suit. This position we deem untenable. There would be force in the argument if the injury caused by the construction of the drain went to the destruction of the entire estate, and in that case the authorities cited would be applicable. Here, however, the damages are not so permanent and certain in their character as to enable a jury to give compensation at once for the entire injury. It is in the nature of a continuing nuisance, and in such cases successive actions may be brought and sustained as long as such nuisance shall be maintained.
We have no doubt that the appellant should recover upon the facts in this record.
The judgment must be reversed and the cause remanded for anew trial, when the jury can be instructed in harmony with the rule announced in this opinion.
Reversed and remanded.