| Ill. | Feb 21, 1907
delivered the opinion of the court:
The evidence shows that the plaintiff’s farm was located in what is known as the “American bottom,” about one-half mile west of the high bluffs which are supposed to have constituted the east bank of the Mississippi river. Hadley branch is a natural water-course, which has its source about five miles north-east of plaintiff’s farm and runs through a very broken country. When it overflowed its banks the water ran in a westerly and north-westerly direction across lands east of plaintiff and across the north-easterly part of plaintiff’s farm and onto a tract owned by one Wendler, and thence in a northerfy direction into Cahokia creek. It is claimed by plaintiff that before the embankment described in his declaration was built the overflow waters from Hadley branch ran off very quickly and left his farm dry and easy of cultivation. In the summer of 1899 the evidence shows the railroad embankment upon the right of way was built by the Madison Railway Company, and in December of the same year the railroad was conveyed to the defendant company. The embankment, as constructed, was solid, leaving no opening for the natural flow of water, and consequently it backed upon plaintiff’s lands, covering them with water, and also surrounding his house and barn to a depth of several feet. On different occasions after the building of the embankment the water broke an opening through the same, and at one of these times an engine and several cars belonging to the defendant company went into the opening and remained there for several days. Each time when the water broke through the embankment the defendant repaired or re-built it without providing any openings whatever for the escape of the water.
It is admitted the case was taken from the jury for the reason that there was no evidence showing or tending to show that the embankment was constructed by defendant, but was built by the Madison Railway Company and subsequently transferred to the defendant, and that prior to the commencement of the suit no notice had been served upon the defendant company to abate the nuisance thus created, and that without proof of such notice plaintiff could not recover, and the correctness of this proposition is the first question for consideration and decision upon this appeal. In support of the rule announced, the defendant cites Groff v. Ankenbrandt, 124 Ill. 51" date_filed="1888-01-20" court="Ill." case_name="Groff v. Ankenbrandt">124 Ill. 51, and Philadelphia Railroad Co. v. Smith, 64 Fed. Rep. 679, and refers to Wabash Railroad Co. v. Sanders, 47 Ill. App. 436" date_filed="1893-06-28" court="Ill. App. Ct." case_name="Wabash Railroad v. Sanders">47 Ill. App. 436.
While there is some conflict in the decisions, this court has recognized the rule that where a party comes into possession of lands, as grantee or lessee, with an existing nuisance upon them, he cannot be held liable to an action for damages until he has been first notified to remove the same, following the Penruddock case, 5 Coke, 101, and later decisions in this country, cited in 124 Ill. 51. We are not disposed to depart from that rule, but we do not regard it as applicable to the facts of this case. In 1891 the General Assembly of this State passed an act authorizing the incorporation of railroad companies. (Hurd’s Stat. 1905, chap. 114.) Section 19 of that act provides: “Every corporation formed under this act shall, in addition to the powers hereinbefore conferred, have power: * * * Fifth—To construct its railway across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of such railway shall intersect or touch; but such corporation shall restore the stream, water-course, street, highway, plank road and turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in repair: Provided, that in no case shall any railroad company construct a road-bed without first constructing the necessary culverts or sluices, as the natural lay of the land requires for the necessary drainage thereof.”
This section, we think, changed the rule of law with reference to nuisances as held in the Groff case, supra,—at least in so far as applied to railroads constructed after the passage of the act. It is a public law, and in positive and express terms prohibits any railroad company, after the passage of the act, from constructing its road until it shall have provided all necessaiy culverts and sluices to take care of the water which naturally drained through the land covered by the right of way. The performance of that duty became a condition precedent to the building of the railroad. The foregoing statute was passed in 1891, and the railroad, with the obstruction, was built in the summer of 1899 by the Madison Railway Company. In violation of the express terms of the statute the Madison Railway Company failed and neglected to construct necessary culverts or sluices to protect the lands of adjoining owner's against overflow. At the time of the sale, in December, 1899, to the defendant the same condition existed, which was open tti' the plain observation of defendant, and it knew,, or might have known, that its grantor had violated the law; also, if it continued to maintain the embankment without such necessary culverts or sluices it would itself become a violator of the law and liable accordingly. The statute imposed a continuing duty not only upon the original builder of the railroad, but also upon its grantees or lessees who maintained the obstruction after it was built. The evidence also shows that after the railroad was constructed, and while the defendant company was operating it, the water continued to back up onto the lands of the plaintiff and of others in the immediate neighborhood. The agents and servants of the defendant had knowledge of this condition, and on several occasions the water became so high as to wash out many feet of the embankment. In violation of the statutory duty imposed upon it, on these occasions the embankment was re-built without any openings through it, thus confining the water, giving it no opportunity to escape. We see no reason why these several re-construction's should not be treated as the creation of original nuisances and independent violations.
But it is earnestly contended that any knowledge the defendant may have had that the embankment obstructed the flow of the water would not supersede the requirement of notice, and such notice would be necessary to rebut the presumption of acquiescence, or that the plaintiff had made a settlement with the defendant for any damages occasioned by the construction of the embankment in violation of the statute. In support of the position several cases are cited, but an examination of them shows that they are not such as are governed by a statute requiring, as a condition precedent to the building of the road, that proper provisions should be made for the natural flow of the water. Where there is a continuous violation of the positive provisions of a statute there is no presumption of previous settlement or that the party injured has been barred by acquiescence. The burden, under such circumstances, is upon the defendant to affirmatively show facts excusing the failure to comply with the statute.
The judgments of both the Appellate Court and the circuit court will be reversed and the cause remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.