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City of Peru v. City of Lasalle

FEBRUARY 9, 1970.

CITY OF PERU, ET AL., PLAINTIFFS-APPELLANTS,

v.

CITY OF LASALLE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of LaSalle County; the Hon. ROBERT W. MALMQUIST, Judge, presiding. Affirmed.

PER CURIAM.

The cause before us originated as an action for injunction instituted by the City of Peru to restrain the City of LaSalle from draining water through a storm drain from the city limits of the City of LaSalle into a ravine which ultimately drained onto property belonging to the City of Peru. At the close of all the evidence offered for plaintiff, the court entered an order dismissing plaintiff's complaint. Plaintiff City of Peru has appealed.

On appeal in this Court the City of Peru contends (1) that there must be a natural watercourse on land in LaSalle (as the dominant owner) which drains the dominant land onto the servient land of Peru at a particular point, and that in absence of such natural watercourse, defendant does not have the right to drain its land through the drain tile onto the land owned by the City of Peru; and (2) that because a combined storm and sanitary sewer system of the City of LaSalle has carried a substantial part of the storm water from the disputed area to the east rather than allowing it to go west to the City of Peru, for a period of more than 20 years, an easement by prescription was thereby created, or that an estoppel arises in favor of the City of Peru to prevent such water which has been diverted to the east for such period, to now be diverted and cast upon the land owned by the City of Peru.

The area in question is located within the City of LaSalle and was developed for urban purposes since 1906. In the course of the development of this land the City of LaSalle has constructed combined drains in the sanitary sewer system to also collect and dispose of storm water in the area. Five witnesses testified for the plaintiff as to the history of the water disposal in the City of LaSalle in the area. The disputed area is bound on the north by Gunn Avenue, on the east by Creve Coeur Street, on the south by Eleventh Street in LaSalle (called Shooting Park Road in Peru) and on the west by Chartres Street. The area comprises about 3 acres.

A Mr. Pattelli, Superintendent of Public Works in LaSalle, who has lived in the area for 18 years, testified that the combination storm and sanitary sewers of the City of LaSalle carry the water in an easterly direction away from Peru. He also testified that he never observed a draw going toward the west. The mayor of Peru, Donald Baker, testified that he had never seen a natural watercourse in the area in question. Henry Mayer, a civil engineer, testified that he did not observe any watercourse in the area under dispute. Mr. Mayer also testified that the contour map introduced in evidence showed the area as being flat. Exhibits admitted into evidence showed combination storm sewers flowing in a southeasterly direction across the area referred to. There was no showing of any combination sewer in the City of LaSalle which had an outlet onto property in the City of Peru. Mr. Mayer also testified that he observed no natural watercourse draining water from LaSalle to Peru.

The mayor of LaSalle, a Mr. Gunia, testified that in 23 years as an alderman he knew of no storm sewer that discharged LaSalle water onto any property located in Peru. Mr. Rummens, Director of Public Works for the City of Peru, testified that in his opinion there was no natural watercourse in the area bounded by the streets referred to in LaSalle. It was also indicated that the City of LaSalle combined storm and sanitary sewers were not able to carry all the surface and storm water whenever there is a rain of one-half inch or more; that the City of LaSalle sewer system does not carry all the surface water in the area in question.

Mr. Mayer, the civil engineer, testified, however, that the natural flow of surface water in the area being drained, was to the ravine in the City of Peru. The mayor of Peru, on cross-examination, also stated that the water falling in the area in question would naturally flow west to the ravine. Mr. Pattelli also testified that there was a sewer inlet on the west borderline of LaSalle which emptied into the ravine in Peru. He also stated that during a rain of over one-half inch, the water runs through a watercourse in the area in question to the south side of Eleventh Street in LaSalle and, eventually, into the ravine in Peru. The testimony of Mr. Mayer was to the effect that water which falls in the area bounded by the four streets referred to, would naturally find its way to the ravine in the City of Peru as part of the "watershed" draining into the ravine. He defined a "watershed" as being "an area of tributary from which the water would run off to a particular point." He testified, however, that there was no defined watercourse across the area in question.

Although it was not clear as to the ultimate purpose of the LaSalle 30-inch tile, it appeared that the 30-inch tile drain of LaSalle was designed to empty into a creek in the ravine which went into the City of Peru. The point where the tile would empty is not owned by the City of Peru but the creek in the ravine would eventually flow through land owned by the City of Peru. At the close of the evidence for plaintiff, defendant moved to dismiss the plaintiff's complaint and this motion was granted.

It is apparent from the record that the land in the City of LaSalle would ordinarily be the dominant land that would drain into the ditch which traversed the City of Peru. Both parties agree that the early Illinois case of Peck v. Herrington, 109 Ill. 611, is one of the leading cases on the question of surface drainage. In that case, Peck owned the higher land and put in a tile to drain a pond on his higher land into a natural watercourse on his land which eventually flowed onto plaintiff's land. The court of review described the problem as follows (at page 617):

"It also appears, from the evidence, that the tile-drain which Peck proposed to put in when the injunction was served, extended from `A' to `C,' where the water would be discharged in the natural channel where the surface water had run for many years. The point `C,' which appellant designed as the outlet for the tile-drain, was on his own land, and a distance of more than a half-mile from Herrington's land. Under such circumstances, did appellant Peck have the right to tile-drain the ponds, and turn the water therein in the channel which had for a number of years carried off the surface water?"

The court further stated (at page 618):

"We now come to the main question in the case. Had Peck the right to drain the water from the ponds and discharge the same on his own land in the channel which carried the surface water from his land to that owned by Herrington?"

The court allowed Peck to drain his land upon the land of the servient owner and stated (at page 619):

"It may also be regarded as a well-settled rule that the owner of the upper field cannot construct drains or ditches so as to create new channels for water in the lower field, but he may make such drains, for agricultural purposes, on his own land, as may be required by good husbandry, although by so doing the flow of water may be increased in ...


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