142 Ill. 645 | Ill. | 1892
delivered the opinion of the Court:'
The contention of appellant is, that the facts alleged in the hill bring him within the letter and spirit of the act approved June 4, 1889, entitled “An act declaring legal, drains heretofore or hereafter constructed by mutual license, consent or agreement, by adjacent or adjoining owners of land, and to -limit the time within which such license or agreement heretofore granted may be withdrawn.” (Laws of 1889, p. 116.) But there is nothing in that act authorizing the filing of a bill for injunction where such bill could not have been filed under the principles of the common law, and under those principles it is indispensable that the party shall allege "and prove a clear legal or equitable right, and a well grounded apprehension of immediate injury to that right. (High on Injunctions, sec. 7; Kean v. Colt, 1 Halst. Ch. 365.) If, upon the allegations or proofs, there shall be a reasonable doubt in either respect, injunction will be denied. Thornton v. Roll et al. 118 Ill. 350.
There is no allegation in this bill that the defendants are proposing or intending, or that the necessary effect of what they have done in making ditches will be, to drain water upon the land of appellant otherwise than as it flows according to nature, and no one has a right to complain that the volume of water in natural channels is temporarily 'increased by artificial drainage of the lands which naturally drain into such natural channels. (Peck v. Herrington, 109 Ill. 610; Drainage District v. Drainage District, 130 id. 265; Kankakee and Seneca Railroad Co. v. Horan, 131 id. 288.) There is no allegation that the defendants are intending to re-open the ditch which it is alleged appellant has closed, and in the absence of allegation in that respect the presumption is that they will not do so. And this ditch being closed, any drainage of water across appellant’s land will, presumably, be only in natural ©flannels, and of such water as naturally flows thereover.
The statute referred to does not restrict or abridge the-rights of drainage" as they existed at common law. Its sole-purpose and effect is to enlarge those rights. Thus, the first section provides, that “whenever any open ditch has been or-shall be constructed by mutual license, consent or agreement of the owner or owners of adjoining or adjacent lands, either separately .or jointly, so as to make a continuous line upon, over or across the lands of said owners, or where the owner or owners of adjoining or adjacent lands shall, by mutual consent, etc., be permitted to connect a drain with another so-constructed, or where the owner of lower lands has connected or shall connect a drain to a drain constructed by the owner or owners of the upper lands, then such drains shall be held to be a drain for the mutual benefit of all the lands so interested therein.” Section 2 provides, “that no one of such owners may authorize another person to connect with such, drain without consent of all parties interested, and any drain so connected without such consent shall be unlawful, and any-person interested may, by bill in chancery, compel such drain to'be filled, and may also have his action for damages.” Section 3 provides, that “none of the parties interested in such continuous drain may fill the same or in any manner obstruct, the flow of water therein, and that the license, consent or agreement mentioned need not be in writing, but may be byparol, and may be inferred from acquiescence of the parties in the construction of the. drain.” Section 4 reads thus “This act shall not be held to apply to any cause now pending in any court of this State, nor deprive any party of the-right he may have, under existing laws, to revoke any parol license heretofore granted to construct any" such drain upon, across or over his lands, provided such right be exercised and suit commenced to enforce the same within one year from the. time this act takes effect, but if not thus exercised' and suit brought within one year, he shall be forever barred from thereafter revoking such license.”
The fourth section professes to be, and must therefore be read, simply, as a limitation upon the language-of section 1. Yery plainly the allegations in the bill make no case under -either of these sections, for a partywho drains the water from his land into the natural channels across the lands of others in which it would have flowed, only less speedily, without any •artificial drainage, does not do so by virtue of any license or agreement, but by virtue of his ownership of the land he drains. His right to thus drain is incidental to the ownership -of the soil, and is as absolutely his as is his right to devote 4he soil to cultivation.
The judgment is affirmed.
Judgment affirmed.
