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Smith v. City of Woodstock

MARCH 8, 1974.

GERALD SMITH ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF WOODSTOCK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McHenry County; the Hon. JOHN KAUFMAN, Judge, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 10, 1974.

From an order enjoining further operations of a sewage treatment plant and the construction of a proposed storm drain, the defendant appeals contending that the trial court abused its discretion.

The sewage treatment plant, located upstream from plaintiffs properties, began operating on August 4, 1971. Its treated effluents discharge directly into the Kishwaukee River, a natural watercourse which runs through the premises in question. On September 29, 1971, plaintiffs filed their complaint for injunction.

Evidence adduced at trial disclosed that at the time of trial the plant was operating at one-third capacity; that, designed to serve 6000 people, it would, at maximum capacity, discharge 1.16 cfs (cubic feet per second) or 750,000 gallons of effluent daily; that its design was in accordance with Sanitary Water Board standards and did not permit any by-pass of raw sewage, and its discharge water was of better quality than the surface water which naturally drains into the Kishwaukee.

It was established that the river has a carrying capacity of 700 to 800 cfs at the point of discharge; that it has been subject to flooding; that there is evidence of soil erosion and that the plant's discharge of additional water could increase the flood risk and erosion problem. One plaintiff testified that during each of the last 5 or 6 years prior to the plant's operation, he had lost 6 to 12 acres of corn due to poor growing conditions occasioned by a high water table. Other testimony revealed that, prior to the operation of the plant, the river was dry during certain months but that at the time of trial, normally the river's dry season, its bed contained 14 inches of muck and 18 to 20 inches of fluid.

Pertinent to the storm drain, evidence established that defendant proposed to construct a 48-inch tile which was to empty into the Kishwaukee watershed above plaintiffs' properties; the storm drain was designed to collect water from the "Schryver Avenue" area, a depression in the landscape that has no natural outlet toward the Kishwaukee; water from the "Schryver Avenue" area naturally drains toward Silver Creek; the storm drain was also planned to serve the Flood farm (an area currently vacant but being converted to a residential subdivision with curbs and gutters); the Flood farm area naturally drains into the river; the headwall of the storm drain was planned to empty at the Route 14 by-pass, between 600 and 1300 feet north of the river; the maximum discharge of a 48-inch pipe is 100 cfs, or 64 million gallons per day, and the amount reaching the river was estimated at between 25 and 100 cfs daily.

While the trial court found that the effluent from the disposal plant was clear, pure and odorless and that no evidence was introduced to show present flooding or diminution of value of plaintiffs' properties, it also found existence of a threat of future flooding and/or contamination of the river due to the operation of the plant and the proposed storm drain use, and held that such future threat interfered with the natural watercourse and thereby constituted "an invasion of plaintiffs' property rights as riparian owners." An order was entered enjoining the defendant from further discharging effluents from its plant and from using its proposed storm drain. The order awarded nominal damages in the sum of $1 to the plaintiffs. Enforcement of the injunction was stayed pending appeal.

• 1, 2 Concerning the issue of the injunction against the proposed storm drain, the courts of Illinois are committed to the natural-flow theory. (Elser v. Village of Gross Point, 223 Ill. 230 (1906); Mello v. Lepisto, 77 Ill. App.2d 399 (1966); Templeton v. Huss, 9 Ill. App.3d 828 (1973).) Artificial channels may be built along natural channels notwithstanding the fact that the flow over the servient tract of land may thereby be increased (Peck v. Herrington, 109 Ill. 611 (1884)), but no one has the right to collect water and by means of an artificial channel cast it upon the land of another in undue quantities or contrary to its natural course; any attempt to do so is enjoinable in equity. Elser v. Village of Gross Point, 223 Ill. at 241.

• 3, 4 That natural run-off of the "Schryver Avenue" area was toward Silver Creek. The fact that this area does not naturally drain into the flood-prone Kishwaukee basin supports the conclusion of the trial court that the proposed storm drain created a threat of future flooding with resultant irreparable injury and, therefore, was subject to being enjoined. (Elser v. Village of Gross Point, 223 Ill. 230 (1906).) Concerning that portion of the storm drain serving the Flood farm which naturally drains into the river, the defendant cannot be enjoined from constructing artificial channels along natural channels, even though the flow may be increased. Ill. Rev. Stat. 1971, ch. 42, § 2-1; Templeton v. Huss, 9 Ill. App.3d 828, 840-841 (1973).

We approach separately the three-fold considerations underlying the court's order enjoining further operation of the disposal plant: the potential contamination of the river by the discharged effluent, the present collection and emission of unnatural-source water into the river, and the effect of the future additional water upon the riparian rights of the plaintiffs.

• 5 As to any potential contamination, there was no evidence to indicate that the quality of future effluent would vary from the present, it being clear, pure, odorless and of better quality than the water which naturally drains into the river. Since it was additionally established that the plant was constructed to prohibit the by-pass of raw sewage, the finding that there existed a threat of future contamination was without support and, in this regard, the trial court's order was in error.

While the law of natural flow of surface water was found pertinent to the storm drain, the following considerations are affected by the body of law applicable to the rights of riparian owners.

There is no dispute that the present efflux of water originates from an unnatural source and increases the river's burden. The trial court held that this, by itself, was sufficient to enjoin the present operation of the plant, stating that, even though "no evidence of present flooding or diminution of the land values of the properties of Plaintiffs has been shown, [the discharge of effluent] is nevertheless an interference with a natural ...


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