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Templeton v. Huss

JANUARY 31, 1973.

BERTRAM F. TEMPLETON, PLAINTIFF-APPELLANT,

v.

JACK C. HUSS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. FRANK J. GOLLINGS, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

The plaintiff, Bertram F. Templeton, is the owner of certain farm land located near Oreana, Illinois. This property is south and southwest of acreage owned by the defendants, Huss and Oldweiler. Huss and Oldweiler (hereinafter referred to as subdividers) subdivided their property and between June, 1961, and November, 1964, three separate additions were laid out and the plats thereof approved and accepted by the Village of Oreana. These three additions contained a total of 114 houses by the date of trial including two that were only partially constructed. Various streets and driveways were laid out by the subdividers' engineer, Warren Hagan, and duly constructed.

On November 5, 1964, the plaintiff filed this action against the subdividers and their wives. The complaint alleged that in constructing their subdivision Huss and Oldweiler had changed the natural course of the surface drainage with the result that water from a different watershed was brought into the natural watershed in which plaintiff's land was located all to the damage of the plaintiff. The plaintiff initially sought a permanent injunction against the subdividers and, by later amendment, also requested damages. In 1967, the plaintiff filed Count II directed against the Village of Oreana. This count alleged the construction of the subdivision and the acceptance and approval of all of the subdivision plats by Oreana together with the dedication by the subdividers of the streets and catch basins to the public. Plaintiff then alleged facts similar to those in Count I to the effect that in the construction of the subdivision the natural drainage flow was altered to the damage of plaintiff's property. A permanent injunction was prayed for against the Village.

Finally, in January, 1971, the plaintiff filed another Amended Complaint adding, in part, Counts III and IV. Count III was directed against the subdividers and charged that in the construction of the subdivision the condition of the land was altered in such a fashion that water flowed onto plaintiff's land at a greater rate and in a greater amount than it did in the course of nature. Count IV was against the Village and was couched in similar terms including, of course, the fact that the plats of the subdivision were approved and accepted by the Village. Both Counts prayed for a permanent injunction and money damages. Neither Count alleged that the natural surface drainage of the subdivision land had been altered or diverted. They simply declared that the subdividers "altered the condition of the land" so that water flowed onto plaintiff's land at a greater rate and in greater amounts than in the natural course of drainage. Prior to trial, the Court dismissed Counts III and IV for failing to state a cause of action. This dismissal was predicated upon the failure of each Count to allege that "water was directed from its natural source or outlet or flowed other than in the general course of natural drainage."

The case proceeding to trial on the remaining Counts of the Complaint and at the end of all the evidence the trial court ruled in favor of all the defendants and entered judgment against the plaintiff on Counts I and II. This appeal has been taken from those judgments and also from the order of the trial court dismissing Counts III and IV. We shall first consider the action of the trial court in entering judgment against the plaintiff and in favor of the defendants on Counts I and I.

The cause of action presented by these two counts is a classic one. In essence these counts sought an injunction and damages for an alleged diversion of the natural drainage of surface water. The plaintiff charged that during the construction of their subdivision the defendants Huss and Oldweiler changed the course of natural drainage by bringing water from a different watershed into the natural drainage system that drained both the plaintiff's and the defendants' lands. Because of this change or diversion the plaintiff claimed that his land received greater quantities of water than it did in the course of nature. It is undisputed in the record that, as to surface drainage, the defendants' subdivision land was the dominant tract and the plaintiff's land was the servient tract.

• 1 The various legal theories relative to the drainage of surface water were summarized by the Court in Mello v. Lepisto (1966), 77 Ill. App.2d 399, 401-02, 222 N.E.2d 543, as follows:

"There are three legal theories of drainage in the United States. The first is the so-called `common enemy doctrine' which permits an owner of land to repel drainage waters in any manner he chooses. This rule is not the law in Illinois. The second legal theory is the so-called `civil law rule', which requires the owner of servient lands to accept all waters naturally flowing from dominant lands. This is the rule of drainage law in Illinois. The third theory is the so-called `reasonable use' theory which modified the civil law rule in the case of urban lands.

The civil law rule was first adopted in the State of Louisiana in the case of Orleans Navigation Co. v. Mayor of New Orleans, 1 La. 73, 2 Mart (OS) 214. Pennsylvania was the first common law State to adopt the rule in the case of Martin v. Riddle (1848), 26 PA 415. The rule was adopted by Illinois in Laney v. Jasper (1865), 39 Ill. 46 and more adequately expressed in Gillham v. Madison County R.R. Co. (1869), 49 Ill. 484. In Gormley v. Sanford (1869), 52 Ill. 158, a classic statement of the rule is made at page 162:

`* * * As water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once so equitable and so easy of application as that which enforces natural laws. There is no surprise or hardship in this, for each successive owner takes with whatever advantages or inconveniences nature has stamped upon his land.'

These early decisions have been followed by many later cases, among them, Adams v. Abel, 290 Ill. 496, 125 N.E. 320; (1919); and Geis v. Rohrer, 12 Ill.2d 133, 145 N.E.2d 596 (1957)."

• 2, 3 Therefore, in this case the plaintiff, as owner of the servient tract, was required to accept all water naturally flowing to him from the defendants' subdivision. He was not, however, required to accept water flowing from the dominant tract that would not ordinarily do so in the course of nature. The owner of a dominant tract cannot divert or change the natural course of drainage to bring water in from another watershed nor can he "remove natural barriers" and let on to the servient land "water that would not otherwise naturally flow in that direction". Anderson v. Henderson (1888), 124 Ill. 164, 170, 16 N.E. 232; see also Daum v. Cooper (1904), 208 Ill. 391, 397-98, 70 N.E. 339; Elliott v. Nordlof (1967), 83 Ill. App.2d 279, 227 N.E.2d 547.

• 4, 5 The liability of the Village of Oreana was properly predicated upon its approval and acceptance of the plats submitted by the defendant subdividers. Once those plats were accepted and recorded the Village "then had exclusive control of the streets and surface water drains and any injunctive relief granted by the trial court against defendants, `other than the Village', would have been meaningless and of no avail". (Elliott v. Nordlof (1967), 83 Ill. App.2d 279, 281-82, 227 N.E.2d 547.) The question raised by Counts I and II was therefore a factual one: in the construction of their subdivision did the defendants Huss and Oldweiler change the natural courses of surface water drainage so as to bring water from another watershed into the natural drainage course and onto the plaintiff's land? The trial court held that the plaintiff had not established such a diversion. We concur.

The following sketch portrays the relative position of the parties' land holdings. The area labelled "West Plains Subdivision" is owned by the defendants Huss and Oldweiler and the large area marked "Templeton" belongs to the plaintiff:

The principal contention of the plaintiff relative to diversion concerned five to ten acres of land in the northeast corner of the subdivision. Plaintiff maintained that, prior to the construction of the subdivision, water in that particular area would flow northeast to the corner of S.A. 20 and View Street and either pond or flow to the west along the drainage ditch on the south side of S.A. 20. If the water became deep enough or, in the instance of very heavy rains, the water would crest and flow to the east across View Street. The defendants asserted that except for a very small portion at the north end of the subdivision that drained north, the natural drainage was to the southwest.

In support of his assertion the plaintiff produced a number of lay witnesses who testified, in general, that prior to the construction of the subdivision they observed ponding in the northeast corner of the subdivision acreage and that the water in this area generally flowed northeast to the corner. In times of very heavy or unusual rain the water would crest View Street and flow to the east. Farmers who worked the plaintiff's land for him testified that prior to the construction of the subdivision they had very little problems with flooding ...


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