50 Ill. 325 | Ill. | 1869
delivered the opinion of the Court:
There can be no doubt that filling up, by the railroad company, what was, at one time, an open trestle work in the embankment of their road over the bottom, retarded or obstructed in some degree, the flow of the water in a time of flood. At such time, the river, not confined to its natural channel, spreads over a large surface, and must have vent somewhere. By filling up this open trestle work, that vent was closed, and the water forced to the channel of the river under the railroad bridge and to the opening near it at the west end. Such portions of the water as could not escape by these passages, accumulated above them, and thus interfered with the cattle sheds, built as they were, upon low land a short distance above the bridge. That the plaintiffs were injured thereby to some extent is established by the proof, but it does not follow, they have a right of action against the appellants for such injury.
It appears P. L. Hewlett built and owned these cattle pens, and according to his testimony the opening in the embankment was filled up by the railroad company, before appellees had any rights in the pens, and all the right they had was under the contract with him, who says: “ My contract was to feed the cattle by the month, furnish all the slop they could eat and stable them at three dollars per month for each.”
It is evident from this testimony, that the pens were in the possession of Hewlett, and to which appellees had not the shadow of a right. Their cattle were there under a contract with the owner to feed and shelter them by the month, at a certain price per head.
The parties to this contract, knew, when it was made, that the river, on which the pens were situate, was liable to annual overflow, and appellees consented their cattle should be placed in them exposed to this annually recurring danger.
The case might be different had the culvert been filled up after appellees’ cattle were put in the pens. As it is, they acted with their eyes open and with full knowledge of the situation of the feeding place, and appellants have done nothing, since appellees’ rights accrued, whatever they may be, to injure them. Ill. Cent. R. R. Co. v. Allen, 39 Ill. 205.
The embankment in which the culvert was placed and filled up by appellants, was erected by the State in the prosecution of its system of internal improvements as early as 1839, and it is in proof by several witnesses, that the river in times of freshets in several years, overflowed the ground, where these pens were afterwards erected, three feet in depth, so that it is manifest, filling the culvert contributed but little if any thing to the injury to the pens. Besides, from the plat introduced into the record, it appears that just above the railroad bridge and pens, there are several large bends in the river which must affect materially the flow of the water in time of freshets, retarding it, and causing it to accumulate in volume at particular points.
The proofs in the case show an unfortunate location of the pens, and fail to show any act of the appellants causing an injury to appellees, for which they should be responsible to appellees. ' If there be a liability to any person, it would appear to be to Hewlett, and not to appellees, for the reasons we have given.
Ho right of action having been established against appellants, the judgment must be reversed and the cause remanded.
Judgment reversed.