APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Tazewell County granting an injunction preventing the village of Green Valley from discharging effluents into a ditch located in Drainage District #1 in Sand Prairie Township, Tazewell County, Illinois.
On February 4, 1977, the village of Green Valley (hereinafter known as Green Valley) filed an application with the Tazewell County Zoning Board of Appeals for a special use permit for the construction of a sewage treatment facility. Green Valley proposed to build the facility on a seven-acre tract located north of the village and in Drainage District #1 in Sand Prairie Township, Tazewell County, Illinois (hereinafter known as Drainage District). Effluents from the sewage treatment plant were to be discharged into a ditch owned by the Drainage District. After a public hearing the Zoning Board recommended that the special use permit be approved. On March 17, 1977, the Tazewell County Board approved the issuance of the permit.
On August 22, 1977, Green Valley purchased the seven-acre tract and began construction.
The Drainage District had been organized in 1903. The drainage ditch had been dug in 1904. Assessments were collected in 1904-06. In 1958, a report was filed by the treasurer of the district seeking to be relieved of the funds on hand. There was no other activity in the Drainage District between 1936 and 1977, when commissioners were appointed in preparation for the present action.
On August 25, 1977, the Drainage District filed a complaint for injunction seeking to prevent Green Valley from constructing a pipeline between the sewage treatment plant and the drainage ditch so that Green Valley could take advantage of the natural course of drainage through the drainage ditch to the Mackinaw River. The pipeline from Green Valley to the sewage treatment plant would not follow the natural course of drainage.
Green Valley filed a motion to dismiss the complaint charging laches and lack of capacity to sue. The trial court denied the motion to dismiss on those grounds, but granted a motion to dismiss for failure to state a cause of action.
The Drainage District then filed an amended complaint alleging that the drainage ditch was a private drain for the exclusive use and benefit of the landowners and that the discharging of the sewage effluent into the drainage ditch would damage the landowners by depriving them of exclusive use, causing flooding, causing a health hazard and offensive odors, and also that the use of the drainage ditch by Green Valley would be the taking of Drainage District property without due process of law and that the use of the drainage ditch would cause irreparable damage incapable of calculation.
Green Valley filed an answer denying all material allegations.
On February 2, 1978, the initial hearing was held. Two commissioners of the Drainage District testified on behalf of the district. They said they thought the system would cause flooding, but neither commissioner had consulted an expert concerning the effect of the proposed sewage system on the drainage ditch.
The trial court denied the injunction. After a motion to reconsider, the trial court set aside that order and continued the matter for further hearing.
On June 2, 1978, the second hearing was held. C.H. Skogley, a registered sanitation engineer and Director of Environmental Health for the Tazewell County Health Department, testified on behalf of the village. He testified that the proposed lagoon system is considered one of the better facilities and if operating properly is not harmful to fish or fauna. Green Valley usage would be approximately 30,100 gallons per day. This would increase the water level in the drainage ditch approximately 1/100th of an inch per day. The system was built for 1200 people and could handle up to 120,000 gallons per day. In his opinion, this would make the danger of flooding so minimal that he doubted it would be noticeable.
Frank Vidoni, a registered professional engineer, also testified on behalf of Green Valley. He said there was little danger of odor or pollution. If Green Valley could not use the drainage ditch, the effluent would have to be pumped a distance of 3,000 feet to the Mackinaw River.
After the second hearing the trial court granted the injunction requiring disconnection of ...