APPEAL from the Circuit Court of Stark County; the Hon. HOWARD
WHITE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Defendants appeal from a decree of the circuit court of Stark County ordering them to remove dirt, rock and other materials plowed, graded or deposited by them in, under and along a division fence and to restore the elevation of the ground thereunder as it existed in 1947 and perpetually enjoining them from thereafter raising or altering the same, and further ordering them to remove an artificial dam from a natural watercourse and perpetually enjoining them from placing in the watercourse a dam which obstructs or interferes with the natural flowage of the surface water therein. Defendants' answer and counterclaim involves the question as to whether defendants' land is subjected to a perpetual easement of drainage in favor of plaintiffs' land so that plaintiffs may cast their surface water upon and across defendants' land. A freehold is therefore involved. The appeal was properly taken directly to this court. Saelens v. Pollentier, 7 Ill.2d 556.
No questions are raised on the pleadings. The defendants allege four errors for reversal, viz.:
(1) that the record clearly shows that plaintiffs have not acquired a drainage easement over defendants' land;
(2) that both the special master in chancery and the lower court failed to pass upon material issues which were raised by the pleadings and supported by the evidence;
(3) that the special master's fee, approved by the chancellor in the amount of $5,404,70, was grossly excessive, and
(4) that the taxing of 75% of the court costs, including the master's fee, against the defendants was completely inequitable under the facts of this case.
Plaintiffs own 240 acres of farm land, referred to as tract 1, described as the southwest quarter (SW 1/4) and the south half (S 1/2) of the northwest quarter (NW 1/4) of section 27, Valley Township, Stark County, Illinois, which they acquired in 1941. Defendants own an adjoining 160-acre farm, designated as tract 2, described as the north half (N 1/2) of the northeast quarter (NE 1/4) and the north half (N 1/2) of the northwest quarter (NW 1/4) of the same section, which they acquired in 1947.
The complaint was filed by the owners of tract 1 to enjoin the owners of tract 2 from maintaining any obstructions along their common division fence which would prevent the drainage of surface water from tract 1 to and across tract 2. Defendants denied that any drainage easement existed across their lands and alleged in their counterclaim that they had acquired a prescriptive right to have both the surface and subsurface water from tract 1 flow to the northwest corner of tract 1 and into a road ditch specifically constructed for this purpose without passing over any portion of tract 2.
The chancellor, after a hearing on the special master's report and the exceptions thereto, filed by both parties at which no additional testimony was presented, approved the master's report and entered a decree in accordance with his findings and recommendations.
Plaintiffs have not appealed from the decree which orders them to cease discharging subsurface water on tract 1 at any point in or on tract 1 in such a manner that said subsurface water, gathered and discharged as surface water, might, or could or would flow from tract 1 onto tract 2 as surface water; perpetually enjoins them from so doing, orders them to remove the obstructions placed in the roadside fence; perpetually enjoins them from obstructing and altering the flow of surface water from tract 1 through the roadside fence line, and decrees that neither the plaintiffs nor the defendants are entitled to have or to recover damages from the other as claimed and set forth in their respective pleadings.
The following drawing will aid in the understanding of the facts in this case:
Prior to 1903 that portion of the northwest quarter aforesaid, lying north of the pond line shown on the above map, was inundated. This area was drained by the artificial open ditch constructed in 1903, in which year the 8-inch farm tile shown along the north side of the south half of said northwest quarter was laid.
The proof is uncontradicted that the surface water normally flowed west, south of the division fence from a point more than 90 rods east of the public highway to the highway. Normally, this surface water has run under the division fence at a point 6 rods east of the public highway, thence west and northwesterly across tract 2 to the east roadside ditch. From there it either ran north along the east roadside ditch or through ...