Appeal by plaintiff from the Circuit Court of Kankakee county;
the Hon. C.D. HENRY, Judge, presiding. Heard in this court at the
October term, 1949. Judgment affirmed. Opinion filed February 24,
1950. Released for publication March 15, 1950.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
Plaintiff, Fred Savoie, is appealing from a judgment of the circuit court of Kankakee county dismissing his complaint for damages and for a mandatory injunction to compel defendants to repair and maintain a drainage ditch, which had diverted waters from flooding plaintiff's land. The defendants designated in the complaint include the Town of Bourbonnais, its former highway commissioners, Charles De Long and Victor Fraser, individually and officially; the County of Kankakee, its superintendent of highways, Harold D. Tyson, individually and officially; and the adjoining landowners, Didier Brosseau and Edwin S. Hamilton.
In determining whether the circuit court erred in holding that the complaint failed to state a cause of action, it is incumbent upon this court to adjudge whether any of the defendants owed plaintiff a duty to maintain this drainage ditch under any legal theory.
The uncontroverted facts appearing in the pleadings are that plaintiff owns an 80-acre tract of land immediately south of the land of defendant Brosseau, and southwest of the property of defendant Hamilton. The Hamilton and Brosseau tracts are adjacent to each other, and immediately north of them is a public highway running east and west. Prior to 1893, a natural watercourse crossed this highway through a culvert in a southeasterly direction into the Hamilton lands, where it then flowed southwesterly into the property of defendant Brosseau, and thence in a southerly direction into plaintiff's lands until it emptied into Soldier Creek, a stream flowing through the tracts of plaintiff and defendant Hamilton.
In November 1893, the Town of Bourbonnais purchased a right-of-way running north and south from the public highway to Soldier Creek, over a 16 1/2 foot strip off the west side of the Hamilton land, and off the tract directly south of it, which belonged to certain unknown owners. The highway commissioner of the town, apparently with the consent of the former owners of the Hamilton and Brosseau lands, constructed a ditch on this strip, which was maintained for some 40 years by the highway commissioners. Waters accumulating north of the highway were drained through the ditch into Soldier Creek, and no longer flowed through the natural watercourse, which had periodically flooded plaintiff's land.
It is alleged that on or about 1935, the county board of supervisors of Kankakee undertook to take over the highway as part of the system of state aid roads, and that since then both the town and the county have refused to maintain the ditch. As a result, it has become filled with debris, and the waters have overflowed several times a year across plaintiff's land, creating gullies and washing away the top soil, thereby causing irreparable damage, for which plaintiff seeks damages and a mandatory injunction to compel defendants to repair and maintain the artificial ditch.
In the four counts of the complaint, plaintiff advances essentially two theories for imposing liability upon the various defendants. The first is based upon a violation of plaintiff's prescriptive rights, and the second is predicated upon the existence of a mutual drainage ditch, and certain obligations thereunder, inuring to plaintiff's benefit.
Count 1 is directed against the Town of Bourbonnais and the highway commissioners, and asserts that having constructed the ditch, the town and commissioners were under a duty to keep it in repair. Moreover, inasmuch as the water had been diverted by the artificial ditch for over 40 years, plaintiff alleges that he acquired a prescriptive right to have his lands released from the burden of the waters that formerly passed over it, and that this right is enforceable by a mandatory injunction.
The second count asserts that the alleged agreement between the owners of the Brosseau and Hamilton lands and the highway commissioners created a mutual ditch under the Act of 1889, and that it was the duty of the parties thereto, and their successors in title to keep the ditch in repair. Plaintiff insists that the highway commissioner has the same obligation thereunder as any private landowner, since maintenance of the ditch is a private rather than public duty, and that defendants' failure to perform these contractual obligations may be enjoined by the mandatory injunction.
Counts 3 and 4 reallege the allegations of count 1, and seek damages from the highway commissioner, inasmuch as it was his duty under the statute to keep the roads in his district in repair (ch. 121, par. 56, § 50, subpar. (b) (6), Ill. Rev. Stat. [Jones Ill. Stats. Ann. 120.058, subpar. (b) (6)]), or in the alternative, from the county superintendent under his statutory authority to open ditches (ch. 121, par. 8, § 8, subpar. (D) [Jones Ill. Stats. Ann. 120.008, subpar. (D)]), and from the other defendants under their contractual obligations.
Separate motions to dismiss the complaint were filed by the county, the town, the town highway commissioners, and the county superintendent of highways. Defendants Hamilton and Brosseau adopted the motions of the other defendants insofar as they applied to their respective cases.
The trial court allowed the motions to dismiss on the ground that the complaint did not state a cause of action against any of the defendants.
The salient issue presented by this appeal is whether the complaint establishes a duty on the part of any of the defendants to repair and maintain the ditch, either by virtue of any prescriptive rights acquired by plaintiff, or under the mutual drainage act, and the alleged agreement thereunder. This court will also consider the special defenses interposed by the town and county as public corporations, and the liability of the highway commissioners and county superintendent, officially and individually.
The alleged formal deficiencies of the complaint, urged by defendants, to the effect that numerous causes of action were pleaded in the same count in violation of the Civil Practice Act (ch. 110, par. 157, § 33, subpar. (2), Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.033, subpar. (2)]), are without merit, inasmuch as the various breaches of duty alleged by plaintiff were based upon the same set ...