179 Ill. 406 | Ill. | 1899
delivered the opinion of the court:
The main objection pressed upon our attention by counsel for appellant, is that the consent decree, entered on September 17, 1883, by the circuit court of Will county in the case then pending of Canal Commissioners v. William Adam was entered without authority of law and without jurisdiction of the necessary parties, and is therefore void. The order, entered by the trial court on September 13, 1897, is claimed to be erroneous, because it is based upon said consent decree. We do not understand counsel for appellant to claim, that said order is erroneous, so far as it is based upon the contract of August 22, 1853, entered into between the canal commissioners of the Illinois and Michigan Canal, representing the State of Illinois, and William Adam. The objection made to the order is made manifest in the record by the exception taken to the order at the time of its entry, and also by exceptions to certain instructions given by .the court to the jury, which recognize the validity of the consent decree. The order objected to finds, that the portion of the Des Plaines river, which lies west of the center thread of the current of that river between what was formerly the center line of School street and the center line or thread of the Des-Plaines river between lots 1 and 2 in block 57 and lots 1 and 4 in block 56, school section addition to Joliet, is owned in fee by the State of Illinois. Counsel for appellant admit, however, in their brief that the fee to the west half of the river is in the State of Illinois, but claim that it is held by the State for school purposes, and is in fact school land. The argument is, that the consent decree, by granting to William Adam and his heirs and assigns the right to build, repair and maintain a dam across the DesPlaines river from lot 1 in block 57 in said school section addition on the east side of said river to the west bank of said river, thereby in effect made a sale or lease of school land, without complying with the provisions of the School law in force in 1872 as to the mode of making sale or leases of school lands.
It being conceded that the title to that portion of the river, which lies between the center thread of the river and the center line of School street, -is in the State of Illinois, it can be a matter of no concern to appellant, 'whether the State of Illinois holds the land as school land, or as canal land. If the school trustees had any interest in the land or the proceeds derived from its disposition, and if the commissioners of the Illinois and Michigan Canal have improperly disposed of such land, a controversy might arise between the school trustees and the canal commissioners. The appellant can have no interest in such controversy if it arises.
We are of the opinion, however, that, under the circumstances developed by this record which require a decision of the question, the west half of the DesPlaines river at the point in question, that is to say, the land lying between the center thread of the river and what was the center of School street, must be regarded as belonging to the commissioners of the Illinois and Michigan Canal, representing the State of Illinois. In other words, it is canal land and not school land.
It is true, that section 16, of which the property in question is a part, was. originally school land, and was subdivided and platted as such in 1834. It appears, however, that shortly thereafter the lots in blocks 57, 56, 45 and other blocks were sold, and patents were issued therefor to the purchasers. Prom these purchasers Philo A. and Orlando H. Haven derived their title to lots 1, 2, 3, 4 and 5 in block 57, and William Adam, under whom the appellees hold as devisees by will, derived title from the Havens. School street was designated as a street upon a plat of said school section. The title to the land embraced within School street, if the plat was properly made out, certified, acknowledged and recorded, would have vested in the town of Joliet, if that town had had at that time a corporate existence. If the town did not at that time have a corporate existence, the fee to the street remained in abeyance, subject to vest in the corporation when it should be created. It appears from the evidence, that at that time the town of Joliet had no existence, but, subsequently on March 1, 1837, the legislature passed an act incorporating the town of Joliet and defining its boundaries. (Private Laws of Ill. of 1836, p. 194). Whether the fee to the street absolutely vested in the town of Joliet, when thus incorporated in 1837, would depend upon the question whether the dedication of the street was accepted by the corporation or not. (Canal Trustees v. Haven, 11 Ill. 554; Hamilton v. Chicago, Burlington and Quincy Railroad Co. 124 id. 235). If the plat was not properly made out, certified, acknowledged and recorded, and if there was no acceptance by the town of the dedication of the street, then the dedication was a mere common law dedication; and the title to the street vested in the adjoining owners, subject to the easement of the public, the title of the adjoining owners extending to the center of the street. (Matthiessen & Hegeler Zinc Co. v. City of LaSalle, 117 Ill. 411; Village of Vermont v. Miller, 161 id. 210; Jordan v. City of Chenoa, 166 id. 530).
By act of the legislature approved January 27, 1841, (Laws of 1841, p. 317), the act of March 1, 1837, incorporating the town "of Joliet and defining its boundaries, was repealed. In addition to this, by an act approved on February 17,1851, it was enacted by the legislature, that so much of Allen street and DesPlaines street as passed over or lay upon a certain mound occupying the adjoining' corners of certain blocks- in school section addition to the town of Joliet, from the foot of said mound, on each side, “together with so much of School street as lies between blocks 56 and 57 in said school section addition to Joliet, be and the same are hereby vacated; and shall belong to and the title of them is hereby vested in the owners of the adjoining lots.” (Priv. Laws of 1851, p. 274).
No lots were laid out upon the east side of School street upon that part of said street, which lay between lots 1 and 4 of block 56 and the west bank of the Des-Plaines river opposite lots 1 and 2 jin block 57. The only lots in block 57, which lay upon the west side of the river and east of School street, were lots 4 and 5 opposite lots 5 and 8 in block 56. As the act of February 17, 1851, only vacated so much of School street as lay between blocks 56 and 57, the part of that street, which the legislature intended to vacate, must have been the part lying between block 56 and lots 4 and 5 in block 57. There was no part of School street, which lay between lots 1 and 4 in block 56 and lots 1 and 2 in block 57, because the latter lots were on the east side of the river, and the street was between the former and the river. Although north of lot 4 in block 57, and at the point where the Adam dam was united to the west bank of the river, there were no lots abutting upon the east side of School street upon the west side of the river, the east side of School street at that point being the west bank of the river, yet counsel for appellees contend, that the space between the center of School street, which is claimed to have extended eastward to the middle of the river, and the middle of the river was a part of the street, and, as the ownership of lots 1 and 2 in block 57 on the east bank of the river extended to the middle thread of the river, it is, therefore, argued that said lots 1 and 2 abutted upon the east side of the street. This argument is more fanciful than real. It is true that under the doctrine laid down in Village of Brooklyn v. Smith, 104 Ill. 429, the street extended to the center of the river. But we apprehend that the expression “adjoining lot owners,” as used in the act of 1851, applies to the owners of lots abutting upon a street through which access can be had to their lots, and does not refer to lots on opposite sides of a river, the ownership whereof may extend to the center thread of the river.
When in 1841 the charter of the town of Joliet was repealed, the title to the west half of School street vested, either in the original owners of the lots abutting thereon, or in the owners of such lots at the time the repeal act was passed. Whether the title vested in the original owners, or in the then existing owners, would depend upon the question whether the plat had been properly acknowledged and recorded, and the dedication of the street had been accepted. As to the east side of the street, however, that is to say, the portion of the street lying between the center line thereof and the center thread of the river, the title thereto, upon the repeal of the charter, reverted to the State of Illinois, the original dedicator; and it makes no difference whether the dedication was a statutory or a common law dedication. In such cases, upon the repeal of the municipal charter, the property held by the municipality for public uses passes under the immediate control of the State. (1 Dillon on Mun. Corp.—4th ed.—sec. 169 o). It is conceded, that there had been no sale or transfer of the ground lying east of the center of the street and between such center and the center thread of the river between lots 1 and 4 in block 56 and lots 1 and 2 in block 57. It must be remembered, that the dam which was constructed extended from lot 1 in block 57 across the river to a point on the west side thereof opposite the dividing line between lots 1 and 4 in block 56.
Even if the act of 1851, vacating that portion of School street lying between blocks 56 and 57, had the effect of vacating the street at the point where the abutments and pier of the dam were constructed, in that event the title to the land at that point between the center of the street and the center of the river vested in the State of Illinois, as the State was the original dedicator and no transfer had ever been made. Therefore, the contention of the appellees that they owned the whole bed of the river extending from the east to the west bank thereof between lots 1 and 4 in block 56 and lots 1 and 2 in block 57 can not be maintained. In Canal Trustees v. Haven, 11 Ill. 554, which was a suit brought by the Havens, the grantors of the present appellees, against the trustees of this very canal to recover damages for diverting the water of the DesPlaines river from the mill of the Havens, it was expressly decided that the Havens were not riparian proprietors on the west bank of the river. This court in its opinion in that case says: “They (the Havens) were the owners of lots 1 and 4 in block 56 on the west side of the river, from which, however, they were separated by a street (School street) running up and down the stream. These lots lie directly opposite those owned' by them on the east side of the river (lots 1 and 2, etc. in block 57). Nearly all of the lots, and the whole of the street, are now occupied by the canal. * * * Independent of the statute, there is a decisive objection to the claim of the appellees (Havens) to riparian rights on the west bank of the river. By the common law, a grant of land bordering- on a highway or river, carried the exclusive right and title in the highway or river to the center thereof, subject to the right of passage in the public, unless the terms of the grant clearly indicated an intention on the part of the grantor to confine the grantee to the edge or margin. In such case, the highway or river is regarded as the boundary or monument, and the purchaser takes to the middle of the monument, as part and parcel of the grant. This is stating- thé principle as broadly as it is laid down in any of the elementary books, or established by any of the adjudged cases. Conceding, then, for the purpose of the argument, that the doctrine of the common law is strictly applicable to this case, and applying it in its full extent, the appellees (Havens) would fail utterly to make good their claim. Their grant would only carry them to the middle of the boundary. They would have no title whatever to the east half of the street, or the west half of the bed of the river. In every point of view, therefore, the appellees (Havens) are not riparian owners on the west bank of the stream. * * * Instead of owning- the entire bed of the river, and having an exclusive right to the use of the whole of the water, they are the proprietors of only half of the bed of the stream.”
Whether or not, upon the repeal of the charter of the town of Joliet in 1841, and later by the vacation of the portion of School street above mentioned in 1851, the title, which became re-vested in the State, was a title to school lands or to canal lands is a question of no little difficulty. Certainly it is true, that, when the State platted section 16 into lots and blocks and sold out the lots, it disposed of the lots as school land; after the re-vesting" of the title, the State used the lots for the purposes of the Illinois and Michigan Canal. This it was authorized to do under existing statutes. The act of January 9, 1836, for the construction of the Illinois and Michigan Canal provided in sections 20 and 21, that the canal commissioners should have “full power and authority in their good judgment to do in relation to the construction and completion of the said canal all things not otherwise herein provided for,” and that it should be “lawful for them to enter upon and use any lands, water, streams and materials of any description necessary for the prosecution of the works contemplated by this act.” (Laws of Ill. of 1836, p. 148). The act of February 21, 1843, in relation to the completion of the canal provided, that the trustees of the canal, as therein created, should possess all the powers conferred upon the canal commissioners by the act of 1836; and section 10 of the act of 1843 granted irrevocably to the trustees of the canal the bed thereof “and the land over which the same passes, including its banks, margins, tow-paths, feeders, basins, right of way, locks, dams; water power, structures, stone excavated and stone and materials quarried, purchased, procured or collected for its construction; and all" the property, right, title and interest of the State, of, in, and to the said canal, with all the hereditaments and appurtenances thereunto belonging.” (Laws of Ill. of 1842-43, p. 56). In the construction of the canal the canal trustees took possession of School street between lots 1 and 4 in block 56 and lots 1 and 2 in block 57, or the greater part thereof, and built the canal in the street itself. In Canal Trustees v. Haven, 5 Gilm. 548, which was a suit by the Havens, the grantors of William Adam, against the canal trustees to recover damages for injury to their mill and a diversion of the water of the DesPlaines river from said mill, being the same suit which was again brought before this court and subsequently reported as Canal Trustees v. Haven, 11 Ill. 554, this court said: “Map 2 shows that the whole of lot 4, and nearly all of lot 1 in block 56, as well as the street between said lots and the river, and several feet of the river, are embraced by the canal itself; so that one side of the river, including a portion of the dam of the appellees, is now occupied by the canal, and upon the opposite side lie lots 1 and 2 in block 57.” In the opinion in the case of Canal Trustees v. Haven, 5 Gilm. 548, this court, in giving a history of the facts about-the building of the canal and of the dam owned by the Havens, said: “Soon thereafter, the commissioners of the Illinois and Michigan Canal, in constructing said canal, removed the west end of said dam, so that it became connected with the east bank of the canal, which bank encroached upon the natural channel of the river about ten feet.” The testimony introduced in the case at bar shows that the west abutment of the dam rests against the tow-path of the canal and is east of the center of School street. So that a portion of the canal, or of the tow-path sixteen feet wide on the east side of the canal, occupies a portion of School street east of the center line of said street. Not only did the canal trustees or commissioners take possession of the east half of School street extending to the center thread of the river in the manner already stated, but, in the decisions made by this court, the canal trustees or commissioners have always been recognized as the riparian owners of the west bank of the river at this point. In Canal Trustees v. Haven, 5 Gilm. 548, this court, while holding that the Havens had a right to the east half of the stream and to use the water embraced within the east half for the purpose of running the machinery of their mills located on lots 1 and 2 in block 57, at the same time held that the appellants in that suit, the canal trustees, were entitled to the other side of the river, that is, the west half. In Druley v. Adam, 102 Ill. 177, which was an action brought by Adam, the ancestor of the present appellees, against Druley, as lessee of the canal commissioners, to recover damages for diverting water of the DesPlaines river from this same mill, it was distinctly stated, that the canal commissioners, ■ successors in trust to the canal trustees, acquired their rights in operating the canal at Joliet because of the riparian rights of the State at that place, and because of the agreement of August 22, 1853, with the Havens.
The appellees are estopped from insisting' that the State of Illinois is not the owner of the west half of the river here in controversy. The court below found, that the State of Illinois owned the fee to the west half of the river, but found at the same time that the appellees had a perpetual easement therein. The appellees have assigned no cross-errors, and cannot object to the decree which is substantially in their favor. Moreover, they claim their rights in this case under a joint resolution of the legislature, which expressly states that “the State of Illinois became and is the proprietor and possessor of the west bank of said fiver opposite lots 1, 2 and 3, block 57, school section addition to Joliet, situated on the east bank thereof.” They also claim their rights under the consent decree of September 17, 1883, which recognizes the State as the riparian proprietor of the west bank of the river at the point where their dam is there constructed. By the consent decree, William Adam and his heirs and assigns, were granted the right to build a dam across the river from the east to the west side thereof, and such grant by the canal commissioners would be useless and of no value, unless they, as representing the State, held the title to the west half of the river.
Our conclusion upon this branch of the case is that the title to the west half of the river, that is to say, to the ground lying west of the center thread of the river and between such center thread and the center of School street on the west bank of the river, between lots 1 and 2 in block 57 on the east side of the river and lots 1 and 4 in block 56 on the west side of the river is in the commissioners of the Illinois and Michigan Canal, as representing the State of Illinois. In this respect the decree is correct.
The next question which arises relates to the validity of the consent decree, entered on September 17, 1888. This decree amounts to nothing more than an agreement between the canal commissioners, complainants, and William Adam, defendant, the parties to the suit in which it was entered. The main ground, upon which the appellant contends that this consent decree was void, is that it confers upon William Adam, the devisor of the appellees herein, rights which the canal commissioners had no power to grant. The court below considered the decree as granting to the appellees a perpetual easement in the west half of the river between lots 1 and 2 in block 57 oil the east side thereof and the center of School street opposite lots 1 and 4 in block 56 on the west side thereof. Whether the designation of the interest granted as a perpetual easement is technically correct or not, such interest amounted in its character and extent to what was really and in fact a perpetual easement. The canal commissioners, being the 'owners of the land between the center of School street and the center thread of the river, including the land under the west half of the river, granted by the terms of the decree to William Adam the right to build, restore and maintain upon the west bank of the river, belonging to the canal commissioners, the western end of his dam at the site where it had theretofore stood. He was to construct the dam with good and sufficient waste gates in a space thirty feet in length at the wostern end of the dam between the abutment and the pier. The grant was to William Adam and his heirs and assigns. Where the owner of land on one side of a stream grants to the owner of land on the opposite side a right to connect a dam across the river with the land of the grantor, such grant involves the right to use and occupy the grantor’s land for the purpose of a dam so long as the dam is kept up. It has been said, that such an interest is not a mere easement, but is to be deemed a freehold, determinable upon the cessation of the mills built upon the opposite side of the stream, or as a demise for the time the mills shall continue to run. (Angell on Watercourses,—7th ed.—sec. 91; Bryden v. Jepherson, 18 Pick. 385). We do not, however, understand counsel for the appellant to contend that the consent decree did not grant a right, as extensive in its nature as that which is involved in a perpetual easement. On the contrary, it is assumed or taken for granted that the court below correctly construed said decree as conferring a perpetual easement or an interest equivalent thereto, and the decree is attacked solely upon the ground of a want of power in the commissioners to grant such an interest.
The main objection, urged against the want of power to grant the interest, is based upon the fact, that section 8 of the act in relation to the Illinois and Michigan Canal, etc., being chapter 19 pf the Revised Statutes, confers upon the canal commissioners the power to lease from time to time any of the canal lands or lands owned by the State, “provided no lease shall be for a period exceeding ten years.” The claim here is, that the commissioners had no power to grant an interest by way of lease in the premises in question for a longer period than ten years, whereas they granted an interest in perpetuity, or made a demise for the time the mill on the opposite bank of the river should run or be kept up. Upon a careful consideration of all the facts shown by the evidence in the record in this case, we have come to the conclusion that the provision of section 8 of the Canal act as above referred to does not apply to the consent decree here under consideration. That provision applied only to new leases to be granted in the future after the passage of the act of 1874.
It must be remembered, that the Havens had constructed their mills on block 57 on the east bank of the river, and had connected their dam across the river with the west bank thereof, as early as 1839 or 1840, and before the Illinois and Michigan Canal was completed, and before it was constructed at that point. The canal commissioners, when they constructed the canal at the point in question, found the dam connected with the west bank, and removed the west end of the dam, so that it became connected with the east bank of the canal. (Canal Trustees v. Haven, 5 Gilm. 548). No effort was made at this time by the canal trustees or commissioners to interfere with the connection of the dam with the west bank of the river, except to shorten its western terminus. They, however, permitted the west end of the dam to remain connected with the east bank of the canal.
Subsequently litigation arose between the canal trustees and the Havens, growing out of the diversion of water from the DesPlaines river into the canal and consequent injury thereby to the running power of the mills of the Havens on the east bank of the river. This litigation and,the nature of it may be seen by reference to the cases already referred to of Canal Trustees v. Haven, 5 Gilm. 548, and Canal Trustees v. Haven, 11 Ill. 554. In the latter case, it was said by the court that the erection of the dam across the stream was unauthorized. Subsequently, however, on August 22, 1853, the litigation between the parties was settled by the execution of the release or contract heretofore referred to, dated August 22,1853. That agreement or release recites upon its face, that the parties are mutually desirous of avoiding further litigation. By its terms the right of the canal trustees to divert the water from the river into the canal was confined to the supplying of the canal with so much water, as would be necessary for the purposes of navigation. When, afterwards, by reason of structures erected north of the Adam dam, the volume of the water was increased, so as to exceed what was necessary for navigation, a further litigation arose between William Adam, the devisor of the appellees, and one Druley holding under a lease from the canal commissioners. The nature of this litigation will be seen by reference to the case of Druley v. Adam, 102 Ill. 177. In that case it was held, that the use of the water by the canal trustees in excess of that needed for navigation, creating a motive power for the benefit of others, was a use not within the language or spirit of the agreement; and that the lease made to Druley was void. In Druley v. Adam, supra, this court recognized and established the validity and binding force of the agreement of August 22, 1858, between the canal trustees and the Havens, grantors of William Adam. By the terms of that contract or release it was further agreed, that the superintendent, or any person having charge, of the canal might reduce the water above the mill-dam of the Havens for the purpose of repairing the canal; and that such reduction of the water might be accomplished by opening the waste ways at the west end of said mill-dam. It was, however, provided that the waste ways at the west end of the mill-dam should be closed by the superintendent of the canal as soon as such repairs could be completed; and that such waste ways should not be open except for such repairs, nor remain open more than for the period of one week at any one time without compensation to the Havens. It thus appears, that the agreement of August 22, 1853, recognized the right of the Havens to have and maintain the waste ways at the west end of their mill-dam, which was located upon the property in question. By agreeing that such waste ways should not be allowed to be open longer than a week at any one time without compensation to the Havens, the canal commissioners virtually admitted the right of the Havens to maintain such waste ways and mill-dam upon the west bank of the river and over the west half of the river. As this court in Druley v. Adam, supra, sustained the validity of the contract of 1853, it seems necessarily to follow that the contract embodied in the consent decree of September 17, 1883, must be regarded as valid.
The Havens and William Adam, their grantee, who was the devisor of these appellees, maintained the dam across the river in practically the same manner as it was left after the completion of the canal, and used the water power developed thereby in the operation of mills of different descriptions on the east side of the river on blocks 45 and 57, and other blocks, until the year 1883. They were thus permitted by the canal trustees or commissioners to maintain the dam across the river for a period of thirty years after the execution of the release of August 22, 1853. In 1883 the waste gates at the west end of the dam were carried out by a flood, which occurred during that year. Just prior to the occurrence of this flood, and in 1882, William Adam had begun three actions on the case in the Will county circuit court against different parties to recover damages for drawing water from the river above Adam’s dam through the Channahon level of the canal to an amount in excess of that permitted by the Haven agreement. A little later, Adam also filed separate bills in the same court against the same parties to prevent the use by them of water in excess of the quantity fixed in said contract or release.
While the suits last above mentioned were pending, William Adam, on May 22, 1883, filed a bill in the same court against the superintendent of the canal, setting up his ownership of the blocks on the east side of the canal and his title thereto, and reciting the litigation reported in 5 Gilm. and 11 Ill., and the execution of the Haven agreement on August 22, 1853. The bill further recited the carrying away on May 12, 1883, of the sluice gates at the west end of the dam by the high water, thereby permitting the water to flow around the dam away from the mills of complainant. The bill also alleged a right under the Haven agreement to attach the dam to the canal bank. On the next day, May 23, 1883, the canal commissioners filed a bill against William Adam in the same court, case No. 10,926. This latter bill recited the ownership by Adam of the lots on the east bank of the river, and that he was entitled to use the river only to the center of the stream; that the State of Illinois was riparian proprietor on the west bank of the river and entitled to half of the water flowing therein; that Adam was proceeding to complete a dam across the river and attach it to the canal bank without right, and alleging that the State owned valuable water power rights which would be damaged by the construction of the dam. An injunction was therein issued, restraining Adam from reconstructing the dam. In addition to the suits above mentioned, an information was filed on April 6, 1883, on behalf of the People of the State by the Attorney General of the State against William Adam and others.
About the time of the entry of the consent decree all the suits above mentioned, including the information filed in behalf of the People, were settled. All of the suits, except that in which the consent decree was entered, were dismissed by agreement. The consent decree in the chancery suit of the canal commissioners against William Adam, although entered in that particular suit, was intended to be a settlement of the whole litigation involved in all the suits.
Before the settlement last above mentioned was made, and in January, 1883, a joint resolution was passed by the legislature, which is set forth in the statement preceding this opinion. By the terms of this joint resolution the canal commissioners were “empowered in their discretion to make with the riparian proprietor or proprietors on the east or opposite-bank just and proper arrangements for the joint regulation of said water power, and for the equitable division thereof, and for the future maintenance and repair or reconstruction of said dam.” This resolution recognized the existence of the mill-dam constructed theretofore by Adam across the river, and not only so, but provided for its repair or reconstruction.
It is claimed by the appellant, that the joint resolution thus referred to was invalid, and conferred no such powers upon the canal commissioners as are therein set forth. It is undoubtedly true, and has been so held by this court, that such a joint resolution does not have the force of law. (Burritt v. Comrs. of State Contracts, 120 Ill. 322). In the latter case, it was held that such a joint resolution is wanting in the essentials requisite to a valid enactment, and is not a law of the State, and has not the force and effect of law. The joint resolution in the Burritt case provided for diverting to other uses appropriations, which had been made for specific purposes. The joint resolution in the present case is not of such a character, but expressly provides that all expenses provided for therein shall be defrayed from the canal revenues, and shall in no event become a charge against the State. In other respects, however, than in relation to the appropriation of public money the joint resolution here cannot be regarded as other or different from that considered in the Burritt case. While, however, it cannot be regarded as having the force and effect of law, it is yet an expression of the legislative will upon the subject matter involved in it. It was a proper mode of expressing the legislative will concerning a mere temporary matter, and in respect to the duties of certain merely ministerial officers. (Cushing’s Law of Legislative Assemblies, sec. 2403).
Independently, however, of the validity or constitutionality, as a law, of the joint resolution, the canal commissioners had the power to make the agreement embodied in the consent decree. That decree did not provide for connecting a new dam with the west bank of the river, nor for the construction of a new pier, or a new abutment, or of new waste ways. It merely provided for the reconstruction and replacement of the dam connected with the west side of the river, which had been accidentally washed away by a flood, and which had theretofore existed for more than forty years, and which had theretofore been permitted to exist during such period of time by the canal trustees or commissioners. At that time, also, this court had rendered its decision in Druley v. Adam, supra, and had substantially recognized the right of Adam to maintain the dam upon the west bank of the river. The Druley case had held that, under the contract of 1853, the canal commissioners were only entitled to divert so much of the water of the DesPlaines river into the canal, as was necessary for purposes of navigation. By the terms of the consent decree, the canal commissioners secured the right to divert and draw from the river a greater amount of water than was necessary for the purposes of navigation. They thereby also secured the right to lease, use and discharge such surplus water below the dam of Adam for water power purposes. In other words, they secured by agreement with Adam the right to make leases of the same character as the lease, which had been executed to Druley, and which was held to be void in the Druley case by reason of its being in violation of the contract of 1853.
The agreement, embodied in the consent decree of 1883, was an agreement between the canal commissioners, as riparian proprietors of the west bank of the river, and Adam, as riparian proprietor of certain lots on the east bank of the river. Neither the canal commissioners, nor William Adam, at that time owned the entire bed of the river, or had an exclusive right to the use of the whole of the water in the river. The canal commissioners were proprietors of onty half of the bed of the stream, and entitled to use but half of the water naturally flowing along the channel. Adam also was the proprietor of the other half of the bed of the stream, and entitled to use half of the water naturally flowing along the channel. In Canal Trustees v. Haven, 11 Ill. 554, we said: “The property in a stream of water is regarded as indivisible. Each riparian proprietor is bound to use it as an entire stream in its natural channel; for a severance would destroy the rights of all. One proprietor cannot so appropriate or use the stream as materially to injure others jointly interested in it.” The same doctrine was announced and endorsed in Druley v. Adam, supra. It necessarily results from this joint ownership of the water in the stream, that the proprietors of the property on both sides of the stream have the right to make some arrangement with each other for the joint use of the water in the stream. The power to make such arrangement is necessarily involved in the joint ownership of the water. In Angell on Watercourses, (sec. 100) it is said: “Wherever a water-course divides two estates, the riparian owner of neither can lawfully carry off any part of the water without the consent of the other opposite.” The plain inference is, that the carrying off of a part of the water can be effected by one riparian owner with the consent of the other. (Ibid. sec. 108). In Plumleigh v. Dawson, 1 Gilm. 544, we said (p. 551): “The property in the water is indivisible. The opposite or other proprietors in common, must use it as an entire stream, or whole, in its natural channel or body, for there can be no severance into parts in its use for hydraulic purposes, at least without consent.” Here, the canal commissioners, in consideration of permitting Adam to reconstruct his dam which had been swept away by a flood, secured from him valuable privilegies in relation to the diversion of water from the river into the canal, in which water Adam had as much interest as the canal commissioners. To deny to the canal commissioners the power to make the arrangement embodied in the consent decree would be to advocate the doctrine, that riparian proprietors on opposite banks of a stream cannot make arrangements with each other for the joint use of the water in the stream.
For the reasons above stated, we are of opinion .that the consent decree was a valid decree, and that William Adam thereby secured valuable rights, which cannot be taken from his devisees by the present appellant without compensation. Therefore, the order of the court below, and the instructions given as above referred to, cannot be regarded as erroneous for the reasons urged by appellant.
The only remaining question relates to the amount of the compensation awarded to the appellees for their property by the verdict of the jury, and the judgment of the court below based thereon. There was the usual conflict as to the value of the interests to be condemned by the sanitary district between the witnesses introduced by the appellant and those introduced by the appellees. The witnesses of the appellees value the property as a whole or in its entirety, while the witnesses called for the appellant value the different parts of the property, or interests therein, separately. All the property of the appellees sought to be condemned appears to have been Used for milling purposes and mill-dam purposes. It was used as an entirety, and it would seem that it ought to have been valued as an entirety. The witnesses of the appellant value separately the naked real estate without reference to the uses to which it was then put, or to which it might be put. They prove the value of the buildings separately from the real estate without reference to their use and connection with the property, as an entirety. Another set of witnesses testify as to the value of the machinery in the mills; another 'Set as to the selling value of the water power; another set as to the cost of the dam and the water gates. All the estimates made by these witnesses were of separate and distinct parts of the property without reference to the joint connection and use of all the parts. Valuing the property, including real estate, buildings, the dam across the river, the mills, milling privileges, and the water power, as an entirety, the witnesses of the appellees estimated its value at figures ranging all the way from $100,000.00 to $175,-000.00. One witness valued the water power alone at $40,000.00. The verdict of the jury fixed the value of the whole property at $70,000.00 only, an amount lower than any estimate made by any witness of the appellees.
In view of the facts thus stated in regard to the evidence as to value, we see no reason for disturbing the verdict of t-he jury by reason of the conflict in the evidence, or because of any alleged excess in the damages awarded. The jury examined the property, and heard the testimony. They were authorized to consider that testimony in connection with their own judgment in determining the just compensation to be awarded to the appellees. Where there is diversity of opinion and conflict of testimony as to the value of the property proposed to be taken or damaged, and the jury have made a personal inspection, this court will not reverse on the ground that the damages are excessive, or inadequate, or that the evidence does not support the verdict. The jury have a right to base their verdict to some extent upon their own examination of the property. (Davis v. Northwestern Elevated Railroad Co. 170 Ill. 595).
The judgment of the circuit court of Will county is affirmed.
T , . „ , Judgment affirmed.
