Appeal from the Circuit Court of Rock Island county; the Hon.
DAN H. McNEAL, Judge, presiding. Reversed.
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 9, 1959.
This is a suit in equity to enjoin the defendants-appellants from altering the contour of their land by grading and excavating and thereby casting surface waters upon plaintiff's lands and for damages allegedly suffered by plaintiff as a result thereof. After a hearing on the merits, the court, which heard the case without a jury, dismissed plaintiff's prayer for injunctive relief for want of equity but entered judgment for the plaintiff and against defendants for $2,175 and costs of suit. The defendants appeal from that part of the decree which rendered a money judgment against them. Plaintiff did not cross-appeal.
The plaintiff's "Bill for Injunction" alleged: That plaintiff owned lot 43, Assessor's Plat of 1879, Milan, Illinois; that defendants were the owners of Matthews Heights First Addition, Milan, Illinois; that "the land of the defendants is a dominant tract in that it is on a hill immediately south of the land of the plaintiff and that the defendants have altered the contour of said land by grading and excavation so that surface water formerly drained in natural water courses and absorbed by soil and vegetation upon said hill now drains upon the land of the plaintiff, and others, which is a servient tract and that the defendants are continuing to alter the contour and drainage of their land and have and are making no provision for the water runoff"; that as a result of such wrongful acts "certain drainage ditches running past and along the property of said plaintiff, after one rain, have become filled with mud and silt and that a certain tile running past and along and afront of the plaintiff's dwelling house has become clogged and filled with mud and silt and the plaintiff's basement has been flooded caused by the filling of the ditches and the tile; that the defendants have persisted in such wrongful conduct over plaintiff's protests; and that "the damage already incurred by this plaintiff through the flooding of his land, clogging of his tile and flooding of his basement amounts to at least Five Thousand Dollars."
The evidence adduced may be summarized succinctly for purposes of this opinion. Plaintiff's land was located at the northwest corner of the intersection of Andalusia Road (running in a generally easterly and westerly direction) and 4th Street West (running in a generally northerly and southerly direction) in Milan. A ditch and tile ran along the entire east side of plaintiff's property, which ditch and tile were located in the road right-of-way of 4th Street West in the Village of Milan. This ditch and tile drained in a northerly direction and carried part of the water draining off the land south of, and across, Andalusia Road. The tile ran under plaintiff's driveway and was circular, being 18 inches in diameter at the south end and 15 inches in diameter at the north end. Defendants' lands, which they were developing as a subdivision, were immediately south of Andalusia Road and plaintiff's property. From Andalusia Road south the ground gently sloped upward approximately four or five hundred feet and then rose abruptly for 30 or 40 feet to form a ridge running to the east. Over the ridge the land in a natural state sloped south. In developing the addition the defendants cut through this ridge. During the course of this grading in April of 1955, there occurred three heavy rains. Plaintiff testified that as a result of defendants' excavations on the hill south of his property and the heavy rainfall, his basement was flooded with silt-laden water to a depth of four to six inches. There was water in his basement for the last ten days in April, the basement drain and the tubes under his driveway were clogged with fine yellow silt, and his fields were flooded. Plaintiff testified that there had been no flooding either prior to the times in controversy or subsequent thereto; plaintiff in his brief concedes that he is seeking relief merely for temporary injury to his real estate.
The defendants urge several errors, but in our opinion one is decisive of this appeal, and it alone need be considered. Defendants contend that the amount of damages was not supported by the evidence. As we view the record on the subject of damages, we believe that plaintiff failed to make any proper proof of damages. Following is the entire evidence on the question of plaintiff's damages:
(Interrogation of Mr. Looby, the plaintiff, by his counsel)
Q. Have you investigated the cost and difficulty involved to put your ditch and tile in the condition it was before April, 1955?
Q. By the way, who is taking care of that ditch on the northwest corner of Andalusia Road?
A. I have always taken care of it.
Q. Have you borne the expense?
Q. Has the Village of Milan ever ...