| Ill. App. Ct. | Aug 6, 1886
We are of opinion that the first count of the declaration, to which the court below sustained the demurrer, is clearly insufficient to show a cause of action. There was no attempt by the pleader to set out any title or interest of plaintiff in the waters of the Calumet feeder, other than that which might be claimed by every other individual of the general public. There is nothing stated from which there could arise a legal duty on the part of the State to keep and maintain the waters of said artificial channel, constructed only for the purposes of a feeder to the Illinois and Michigan canal, in a navigable condition. And it apj ears by direct averment in the count, that the city of Chicago, in deepening said canal, as a consequence of which the waters of the feeder became lowered to an unnavigable depth, acted in pursuance of authority given by the legislature for the purpose, and there is no averment that, in the execution of the authority so given, the defendant did anything in excess of it, or that the work or any part of it was negligently or unskillfully performed. There is nothing stated in that count which could derogate from the absolute right of the State, so far as plaintiff’s intestate was concerned, to draw off the waters and discontinue the use of both canal and feeder. Fox v. Cincinnati, 104 U.S. 783" date_filed="1882-03-18" court="SCOTUS" case_name="Fox v. Cincinnati">104 U. S. 783, and cases cited.
There is more difficulty in deciding as to the sufficiency of the second count. In that, the pleader set out the title and interest of plaintiff by these allegations: And whereas plaint-~ iff and said dowry and their grantors, as aforesaid, were possessed of and were the owners of an estate of inheritance in fee in said lands above described, in which said quarries were so situate, adjoining said Calumet feeder, and as such owners during all that time, for said twenty years and upward, they rand their grantors had not only the common right of all other citizens of said State, to navigate and pass with their goods, etc., in boats, etc., in and upon said canal, but by reason of said ownership of said lands, underneath, upon, and contiguous to the banks thereof, by them and their grantors, they became, and were, the rightful owners of an easement of, in and to, the said water way or navigable way, appurtenant? and of right belonging, to their said lands aforesaid, which said easement was of great value, to wit, forty thousand dollars and upward,^at the time of the committing the grievances, etc.
The above is a good statement of plaintiff’s title and interest in the water way. 1 Chitty on Pleading, 14th Am. Ed., 381, marg. p. the same, and cases in note.
This count, like the first, shows that the lowering the was ters in the feeder was wholly in consequence of the improvement by the city of Chicago, of deepening the canal for the purpose of cleansing the Chicago river; that the defendant was authorized by an act of the legislature passed February 16,1885, and that the plans were made and contracts let and much of the work done, before the adoption of the constitution of 1870; and there is no averment of defendant exceeding its authority, or any negligence or unskillfulness in doing the work.
The case is, therefore, apparently within the principles announced in City of Chicago v. Rumsey, 87 Ill. 348" date_filed="1877-09-15" court="Ill." case_name="City of Chicago v. Rumsey">87 Ill. 348, and not governed by the provision of the constitution of 1870, which prohibits the damaging of private property for public use without compensation.
But counsel for appellant takes the position that, in this second count, it sufficiently appears that plaintiff’s intestate had a property interest in the waters of the feeder, as a navigable channel or canal, so that the drawing off such water- and leaving the channel unnavigable, was such a physical de privation of such property, as amounted to a taking within the meaning of § 11, Art. 13, of the Constitution of 1848, and gives a right of action. We have no jurisdiction to authoritatively decide that question, and therefore affirm the judgment below, leaving the appellant to the necessity of going to the Supreme Court to have the point determined.
Judgment affirmed.