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Forrest v. Norfolk & Western Ry. Co.





Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding.


Plaintiff brought an action in the circuit court of Livingston County to abate a public nuisance maintained by defendant. The circuit court held that plaintiff had acquired prescriptive rights to use a drainage structure passing under defendant's railroad tracks, and that the alteration of said drainage structure by defendant in 1974 caused floods two to three times per year. The circuit court determined that the existing drainage structure constituted a public nuisance, and ordered defendant to abate said public nuisance by either removing the track and opening the ditch or replacing the existing drainage structure with a new "structure having at least the capacity of the double-box culverts under Route 24." Plaintiff also sought to recover its attorney fees and engineering costs in the abatement action pursuant to a village ordinance; however, the court refused to assess such costs. Defendant appeals the portion of the court's order which found that defendant maintained a public nuisance, and also argues that even if the finding of a public nuisance is affirmed, the remedy which the court ordered is against the manifest weight of the evidence. Plaintiff has cross-appealed the portion of the court's order which denied plaintiff the right to recover its costs of abatement.

We affirm in part and modify in part.

Defendant owns and maintains two "wye" track sections which are located in or near the village of Forrest. Defendant also owns and maintains a set of railroad tracks which run to the north and south of Forrest. Another railroad company owns and maintains a set of east-west tracks which run through Forrest. The wye track sections permit east-west trains to change to the north-south tracks and vice versa. All of the aforementioned tracks were apparently originally constructed in the late 1800's. Culverts were also constructed under these tracks in the late 1800's to facilitate drainage. In 1928, the original structure under the wye track adjacent to Krack Street in Forrest (the Krack Street wye) was replaced with a pile timber trestle bridge. The size of the opening of this structure is in dispute. In 1974, defendant removed the trestle bridge and replaced it with three 48-inch culverts. The combined opening of these three culverts is approximately 38 square feet.

After the new culverts were installed in 1974, water backed up at the location of the culverts after every rainfall of 1 to 2 inches. Flooding occurred on an average of once or twice a year thereafter. Numerous complaints were made to the railroad over the years; however, the railroad failed to take any substantial steps to rectify the situation until 1984, subsequent to the date plaintiff filed the present action. Several witnesses testified that prior to the installation of the culverts in 1974, no flooding problem existed in the village of Forrest.

On March 2, 1984, plaintiff filed a complaint for permanent injunction asking that the defendant be ordered and required to replace three 4-foot corrigated-metal pipe culverts (the Krack Street culverts). Plaintiff subsequently filed an amended complaint April 16, 1985, which consisted of two counts. Count I sought to have the Krack Street culverts declared a nuisance and that the defendant be ordered to replace the culverts with a more appropriate drainage structure. Count II alleged a "nuisance" ordinance violation and asked the court to order the defendant to abate the nuisance allegedly caused by the Krack Street culverts, and further to order defendant to pay plaintiff's costs incurred in its attempt to abate the alleged nuisance and to pay plaintiff's attorney fees. Defendant filed its answer to count I on May 31, 1985, and its answer to count II on August 21, 1985. The trial began August 21, 1985, with the trial court hearing the case without a jury.

At the conclusion of the evidence and after hearing arguments of counsel, the trial court ruled that the Krack Street culverts were not adequate. The trial court found that the credible evidence was that there was no natural stream in this area. The court found, however, that the drainage ditch in question had been in existence for such a long period of time that regardless of who it was created by, the village had a prescriptive easement to the continuation of the waterway. The court further found that the previous structure which was replaced by the Krack Street culverts was of sufficient capacity to carry away the water that arrived there. The court further found that the Krack Street culverts were inadequate because of the tendency of the Krack Street culverts to become trashed. The court found that there were in excess of 900 acres which are drained by the ditch in question, and that from 17 to 40 acres of the northeastern portion of Forrest are drained into that ditch, depending upon whether there is a light or heavy rain. The court further found that although no one testified as to the optimum opening for the Krack Street wye, the double-box culvert under Route 24 is the immediate major downstream restriction from the Krack Street structure.

The court then ordered that the railroad abate the nuisance by either removing the wye track and opening the ditch, or in the alternative, that they construct a new single-opening structure having at least the capacity of the double-box culverts under Route 24. In the event defendant chose to construct a new structure, the plaintiff was to pay 4% of the cost of constructing such a structure because of the trial court's finding that 4% of the run-off area is within the village. The court further found that it would be inequitable to award attorney fees or costs of litigation to either party, since both parties had incurred substantial costs, and had made substantial efforts to try and get the matter settled, and that both sides are partly responsible for the problems which existed.

On August 29, 1985, the court entered a written order encompassing the oral findings and ruling entered upon the record. On September 27, 1985, the plaintiff filed a motion for reconsideration asking the trial court to modify its order to permit plaintiff to recover the fees and costs incurred by it in the prosecution of this action. On September 30, 1985, defendant filed its post-trial motion asking the trial court to vacate its judgment entered August 29, 1985, or in the alternative to modify said judgment. The post-trial motions were heard by the court on October 10, 1985, and both motions were denied by docket-entry order. Subsequently, defendant filed its notice of appeal on November 12, 1985. Plaintiff filed its motion of cross-appeal on November 19, 1985.

The first issue raised on appeal is whether the circuit court erred in finding that defendant installed and maintained a public nuisance.

Defendant's first argument on this issue is that "the trial court erred in finding that the Village of Forrest and its residents had acquired prescriptive rights to the use of the drainage ditch upstream from Defendant's culverts where there was no affirmative evidence that waters from a portion of the lands lying within the Village had been draining into said drainage ditch for more than 20 years prior to the filing of the lawsuit."

• 1 The testimony of Reuben Metz establishes the fact that the drainage ditch in question existed for far more than 20 years. Metz was the mayor of Forrest from 1961 to 1979. Metz testified that "he was born in 1907 and * * * can recall as a kid it has always been there." Furthermore, the testimony of Richard Eikenberg establishes that between 17 and 20 acres of land located within the village of Forrest naturally drains easterly to the ditch. Even the testimony of defendant's own witness establishes that at least some water from the village of Forrest drains into the ditch. John Goodell testified that "[t]he ditch serves effectively to drain that part of town, or a portion of that part of town, and it effectively drains the railroad." In light of the testimony presented, we believe that defendant's first argument on the first issue presented for review is without merit.

Defendant also contends, under the same argument heading, that "[i]nvasion of another's rights must occur before the period of limitations for establishing a prescriptive right commences to run." Defendant cites Nelson v. Gundlock (1983), 120 Ill. App.3d 117, 457 N.E.2d 1052, as support for this proposition. Nelson involved a prescriptive right to flood another party's land. The holding of Nelson is that in order to acquire a prescriptive right to block waters flowing upon one's land which results in the flooding of upstream lands, there must be actual flooding for the prescriptive period to commence to run. Nelson, which involved the right to flood another's land, is inapposite to the instant case, which involves the right to use a drainage structure.

• 2 Defendant also argues that "[t]he railroad's culverts and drainage ditch cannot constitute a nuisance where the undisputed evidence showed that the artificial drainage provided by the construction of the railroad provided better drainage for the Village of Forrest than had existed in a state of nature." Defendant cites Smith v. Toledo, St. Louis & Western R.R. Co. (1912), 168 Ill. App. 670, for the proposition that a railway company is not required to furnish a better means of drainage for the surface water than that which existed prior to the construction of the railroad. From our reading of defendant's brief, however, it appears that defendant has abandoned this argument by admitting that "if a landowner had acquired the prescriptive right to utilize a drain which passes under a railroad's crossing, the railroad would then have a duty to provide adequate drainage structures to ...

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