APPEAL from the Circuit Court of De Kalb County; the Hon. CARL
A. SWANSON, JR., Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Petitioner, Union Drainage District No. 1 of the Towns of Afton and Milan (referred to as the "Afton-Milan district"), appeals from a judgment entered on a jury verdict finding that projected clean-out work on the ditches of its district would be of "O" benefit to respondents (Malta, Milan, Afton and De Kalb Special Drainage Districts referred to as the "Malta district"; and Union Drainage District No. 1 of the Towns of Shabbona and Milan, De Kalb County referred to as the "Shabbona district").
Petitioner contends that the evidence has made a case under Section 11-2 of the Drainage Code (Ill. Rev. Stat. 1971, ch. 42, par. 11-2) *fn1 for imposing liability on the respondent districts to bear a just proportion of the cost of the work to be performed. In its view, the jury verdict of "O" benefits to respondents was against the manifest weight of the evidence and resulted from prejudicial trial errors. More specifically it contends that the evidence at most showed that certain parts of respondent districts have a greater elevation than parts of petitioner district, and that this did not constitute a defense to the action.
The Commissioners of the Afton-Milan district filed their petition, accompanied by an engineer's estimate of the cost of the projected clean-out work, on January 13, 1971. None of the projected work is in the respondent districts. The work involves the clean-out of the main Afton-Milan ditch north of and downstream from Perry Road for a distance of about 5.93 miles. Of the total projected cost of $50,325.91, $4,398.90 was assessed against the Malta district, and $9,610.06 was assessed against the Shabbona district.
All three districts involved in this proceeding are located in the same watershed, and all of the water from the respondent districts' ditches empties into and through the Afton-Milan ditch. Direction of water flow is generally northerly.
The main ditch of the Afton-Milan district has its southern terminus about 60 rods north of an east-west road called McGirr Road. From this southern terminus, the Afton-Milan main ditch runs generally northeasterly for about 7.6 miles, at which point it crosses into the De Kalb Township "Outlet Area." The ditch has an average fall of about 2.3 feet per mile.
Respondent, Shabbona district, lies generally southwesterly from the Afton-Milan district. From its southern terminus, its ditch runs northeasterly for about 5.18 miles to a point about 60 rods north of McGirr Road, where it discharges its drainage waters in a straight line into the Afton-Milan district main ditch. The district itself has its northern boundary at McGirr Road, which lies some 2 miles south of the southern boundary of the proposed work (Perry Road). The fall of the Shabbona district ditch averages about 6 feet per mile.
Respondent, Malta district, lies westerly and northwesterly from the Afton-Milan main ditch. Its ditch consists of two main branches; the North Branch runs for approximately 2.6 miles to a junction with the West Branch, which begins in Milan Township and runs easterly for 3.07 miles until the junction. Together the combined ditches run easterly for 2/3 of a mile, where the drainage waters are discharged in a straight line into the Afton-Milan main ditch. The North Branch, to its juncture with the West Branch, has a fall of approximately 5 to 6 feet per mile. The West Branch, to the juncture with the North Branch and thence to the outlet into the Afton-Milan main ditch, has an average fall of 9 feet per mile. There is 2 1/2 feet of fall over the 2/3 of a mile that the branches run together, and a 1 foot drop at the outlet of the Malta ditch into the Afton-Milan ditch. From the outlet, going northerly downstream in the Afton-Milan district for approximately 2 miles, there is a fall of about 1 foot per mile.
The Afton-Milan district ditches were totally cleaned in 1948-1949, and in 1965 the portion south of Perry Road to the end of its ditch, 60 rods north of McGirr Road, was cleaned. The Shabbona district had clean-out work done on its main ditch in 1969. The work stretched north from its southern boundary to include not only the 60 rods north of McGirr Road, but 100 rods past into the Afton-Milan district, which 100 rods had been cleaned out in 1965. Prior to 1969, the Shabbona district had done no clean-out work since its inception in 1906. The Malta district was last cleaned out in 1954.
The respondents countered the prima facie case made out by the introduction of the petitioner's assessment role in evidence (Ill. Rev. Stat. 1971, ch. 42, par. 5-10) with the testimony of six landowners and two engineers. In substance the owners in the Shabbona district testified that the ditch in that district remained in good condition after the 1969 clean-up, and no crop damage had occurred since that date. One of the owners, whose land is on the southern boundary of the district, stated that poor drainage had caused him crop damage and some unworkable land prior to the clean-up, but that he had no such problems since 1969.
The landowners in the Malta district stated that both branches of the district's ditch were in good condition, with the North Branch having very little silt and a few willows of small growth, and the West Branch having no undergrowth or willows, a clear bottom, and smooth sides. The water was running well where the North and West Branches met, and the outlet at the Afton-Milan district was clear and open, with the water running at a "fast clip". The water was about 1 foot deep at the outlet, and 6 inches deep in other places. The land next to the ditch was in good condition, none of the lands in the district were water damaged, and all land was under cultivation. One of the owners, whose farm is about 3/4 of a mile from the Afton-Milan district, stated that the water in the ditch through his farm has gotten as high as 1/2 to 2/3 of the way up the 12 foot bank during wet periods, but receded to a foot within 24 hours when it stopped raining. He said the year before trial was the wettest year he could remember and he had no crop damage.
Francis E. Sexton, a Consulting Engineer Land Surveyor, testified on direct examination that he examined both of the respondent districts shortly before trial and found their ditches in very good condition. The Shabbona ditch had straight sides, uniform banks, and possibly a little sloughing near the bottom. The tile outlets were in good condition, and there were no willows or extra growth in the ditch. The Malta ditches were relatively straight and smooth, the outlets were in good condition, and there was a minimum of buildup of grass or turf. He found no silting where the ditches met the Afton-Milan ditch. He said the 6 foot per mile fall in the Shabbona district was slightly above average, which would be 4 or 5 feet per mile. Similarly, the Malta district fall of 6 to 9 feet per mile was above average. Conversely, he termed the Afton-Milan district, with a fall of about 2.3 feet per mile, a flat outlet. He said that due to these differences, the proposed work would have no effect on the velocity or capacity of the respondent districts' ditches to handle all of the water in those areas. Since the ditch at McGirr Road, the north boundary of the Shabbona district, is 9 feet higher than at Perry Road 2 miles away, which is the southern boundary of the proposed work, Sexton said that water could not back up from Perry Road to McGirr Road unless there were a 9 foot high blockage in the ditch at Perry Road. It was his opinion that due to differences in elevation, the respondent districts would not be benefited by the proposed work.
On cross-examination, Sexton said factors affecting the flow of water are the shape of the ditch, the obstructions in the ditch, the grade or fall at the bottom of the ditch, the alignment of the ditch, and the volume of water. He said that his statement that it would take 9 feet of water at Perry Road to impede the flow in the Shabbona district presumed a static condition, but that the present situation deals with a flowing rather than a static condition. He admitted that progressively over a number of years, the buildup could have some effect on the respondent districts.
Carter Sarver, a Civil Engineer, testified that he examined the Malta district ditches, and found the 6 foot per mile fall of the North Branch and 9 foot per mile fall of the West Branch would cause the water to have sufficient velocity to prevent silt from depositing in the ditches. He said it would take considerable time before the condition of petitioner ...