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Freeland v. Dickson

OPINION FILED AUGUST 11, 1978.

LEE R. FREELAND ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

RICHARD DICKSON, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 14, 1978.

Defendant appeals from a mandatory injunction which requires him to remove all "artificial obstructions" in a "waterway" across the land of the defendant lying east of a highway culvert on the west boundary of defendant's land "to maintain the maximum elevation of the waterway flowing east at the level of the flow line at the east end of the culvert," and enjoining him from erecting any "additional artificial obstructions" to the flow of surface water in the waterway. Defendant was further ordered to remove all silt from a grassed area east of the culvert and "to maintain the same in the future at an elevation at least 5 inches lower than the east flow line at the east end of the culvert." The decree finds that the level of a "grassed area" in defendant's field opposite the east end of the culvert is 10 inches higher than the flow line of the culvert at its east end. Literally speaking, the "maintenance" requirements appear contradictory.

Plaintiffs cross-appeal from that portion of the court's decree which required them "to maintain the elevations in the waterway west of the culvert as they existed in December 1975." This portion of the decree is directed to evidence that before December 1975, plaintiffs' land, the field at the point where water flowed into the west end of the culvert, was something more than a foot higher than the bottom of the culvert, but that early in 1976 plaintiffs, by excavation, lowered the level in the field to the level of the bottom of the culvert.

The land of plaintiffs lies immediately west of a township highway and the land of the defendant is immediately east. Surface water on plaintiffs' land naturally flows east through a highway culvert on to, and across, defendant's land. The township highway is a higher elevation than the adjacent fields of the parties and is a barrier to the normal surface drainage. It appears that in times of heavy rainfall water will flow across the highway.

Examination of the record discloses that the use of the term "waterway" in the decree with regard to defendant may be misleading. It appears that the natural elevation of defendant's land permitted the natural flow of surface water in a generally easterly course from the west. The record does not show that a waterway as a channel or way had been constructed upon measured elevations and upon engineering principles to form an artificial channel designed to alter or improve natural drainage. The record does show, however, that plaintiffs had altered the natural course of surface drainage to speed the flow of water.

At the east end of the culvert an area in defendant's field had been, for many years, left in grass. The grassed area is described as some 50 feet in an east-west direction and about 30 feet wide. A witness for defendant stated that he had planted the grass when he farmed the land some 25 years prior. Other estimates of the time range from 8 to 10 to 20 years or more. The record is clear that defendant did not create the grassed area, although he had left it in place and used it as a "turn-around" for machinery.

A plaintiff testified that in November 1975, he found a large rock at the east end of the culvert which he removed. It appears that at that time he excavated dirt at the east outlet of the culvert. Thereafter, defendant piled white rock opposite the outlet of the culvert and when that washed away he replaced the rock with stones and posts to an elevation which the trial court found to be 22 inches higher than the flow line at the east end of the culvert.

In Geis v. Rohrer (1957), 12 Ill.2d 133, 136, 145 N.E.2d 596, 598, the court stated:

"`Where water from one tract of land falls naturally upon the land of another, the owner of the lower land must suffer the water to be discharged upon his land and has no right to stop or impede the natural flow of the surface water.'"

• 1 The record is clear that the effect of the placing of rock and posts to a height of 22 inches above the natural level of the ground impeded the natural flow of surface water, and that portion of the decree which requires defendant to remove such material is affirmed.

The decree found that the elevations of defendant's field immediately opposite the east end of the culvert and described as the grassed area was approximately 10 inches higher than the east flow line of the culvert. An issue is whether the evidence supports the determination that defendant must excavate or otherwise lower the natural water course to the flow line of the culvert and to an elevation 5 inches below the flow line of the culvert, and "to maintain the maximum elevation of the waterway flowing east at the level of the flow line at the east end of the culvert."

Literally speaking, such provision would require the creation of a ditch or channel of unspecified width and length across the field of the defendant. The only testimony concerning the elevations of the field based upon consideration of measured elevations is that of plaintiffs' witness, John Guillo, a licensed professional engineer specializing in hydraulics. While presently engaged in the consulting practice of civil engineering, the witness had taught for 17 years at the University of Illinois in that field, and was Chief Water Engineer for the State of Illinois for 10 years. As a consultant on hydraulics, some 80 percent of his work is concerned with the natural flow of surface water. Guillo had visited the site of the problem on 5 occasions and had caused elevations to be taken and plats drawn. In quick synopsis, the record shows that as an expert he refused to say that the course of natural drainage across defendant's land should be lowered to the level of the bottom of the east end of the culvert, or to an elevation 5 inches below that level.

Counsel and the court speak of, and witnesses testified to the "flow line" of the culvert. The term does not appear to be defined. There is testimony that the culvert was half-filled with dirt. From the testimony of Guillo concerning elevations, we interpret the term "flow line" to mean the bottom of ...


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