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Lee v. City of Pontiac

OPINION FILED AUGUST 31, 1981.

J.B. LEE, PLAINTIFF-APPELLANT,

v.

THE CITY OF PONTIAC ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents an issue which the Illinois Supreme Court has not addressed since 1899, namely, the subject of percolating waters. Problems with this subject are ordinarily thought to be confined to the more arid parts of the United States, but recent concerns with water quality and quantity, coupled with changes in demography and climatic conditions in this State, cause a re-examination of our law in the light of plaintiff's invitation to us to overrule prior authority. While such action is clearly beyond the province of this court, a review of existing doctrines may not be useless.

The facts in the instant case are not complex and the circuit court of Livingston County disposed of the matter on the pleadings. The trial court's final order dealt with the fifth amended complaint which was in 24 counts. All counts concerned with percolating water were dismissed with prejudice under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) and on all remaining counts, which concerned definitely ascertainable waters, the trial court entered summary judgment in favor of the defendants upon plaintiff's admission by stipulation that definitely ascertainable waters were not involved in the litigation. Plaintiff appeals only the section 45 dismissal.

The pleadings indicate that the plaintiff owns and operates a business on premises on the southeast edge of the City of Pontiac, and that in connection with that business there was a well which was fed by percolating waters. In June 1976, the City authorized the widening and deepening of an existing drainage ditch located east of plaintiff's premises. In October 1976, plaintiff discovered that his well had gone dry. His suit against the City, its engineering consultant, and the excavating company, alleged negligence in failing to take precautions against damage to his well and in failing to conduct an investigation and to make tests to determine the effect on his well of the alterations in the drainage ditch. As previously indicated, the trial court dismissed the complaint with prejudice for failure to state a cause of action.

• 1 We note at the outset that plaintiff has attached to his brief in this court a variety of exhibits relating to water resources in Illinois and in the Pontiac area, together with an engineering study of subsurface water in the vicinity of his former well. These are not any part of the record in this case, and our consideration will be confined to the question whether the well-pleaded allegations of fifth amended complaint state a cause of action without reference to material outside the pleadings. Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App.3d 667, 307 N.E.2d 749.

"Percolating waters may be defined generally as those which ooze, seep, filter, or percolate through the ground under the surface without a definite channel, or in a course that is uncertain or unknown and not discoverable from the surface without excavation for that purpose." 78 Am.Jur.2d Waters § 155 (1975).

Three rules have developed in the United States with regard to percolating waters. For convenience they are generally referred to as the "common law" or "English" rule, the "reasonable use" rule, and the "correlative rights" rule. The latter two are sometimes lumped together as the "American" rule.

The statement of the rules and the jurisdictions in which one or another has been adopted are fully set forth in 78 Am.Jur.2d Waters §§ 157, 158 (1975), and in 93 C.J.S. Waters § 93c (2), (3), (4) (1956), and need no extended reiteration here.

Plaintiff poses two questions to us: Which rule does Illinois follow? Which rule ought Illinois to follow?

There are two reported Illinois decisions on the subject of percolating water; one by the supreme court in Edwards v. Haeger (1899), 180 Ill. 99, 54 N.E. 176, and one by the appellate court in Behrens v. Scharringhausen (1959), 22 Ill. App.2d 326, 161 N.E.2d 44. In Edwards, the supreme court said:

"Water which is the result of natural and ordinary percolation through the soil is part of the land itself and belongs absolutely to the owner of the land, and, in the absence of any grant, he may intercept or impede such underground percolations, though the result be to interfere with the source of supply of springs or wells on adjoining premises." 180 Ill. 99, 106, 54 N.E. 176, 177.)

While the court did not expressly state that it was following the English rule, most authorities consider the foregoing statement to place Illinois in that category. 78 Am.Jur.2d Waters § 157 (1975).

The Behrens court questioned whether Illinois came under the English rule and in doing so quoted further language from Edwards:

"The question of the effect of the motive prompting the interference with the source of supply of water by collecting percolating water, which has been the subject of conflicting decisions in the courts> of different States, does not arise in this ...


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