APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 1036, 190 Ill. App. 3d 640, 137 Ill. Dec. 923 1989.IL.1636
Appeal from the Circuit Court of Perry County; the Hon. Carl H. Becker, Judge, presiding.
JUSTICE HOWERTON delivered the opinion of the court. WELCH, P.J., and CHAPMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON
In the beginning, there was one owner of one tract of land and there was a lake and a pond upon the land.
Part of the land was low and marshy and so the owner put a drain pipe in the earth between the lake and pond. Time passed, and the pipe became clogged with roots and silt, and the drain slowed to a trickle.
Then the land was divided into two tracts: one tract lay north of the lake and included the lake; the other tract lay south of the lake and included the pond. Both tracts were sold., Plaintiffs became the owners of the west portion of the pond and the land that lay south of the lake., Defendant became the owner of the lake.
Others became owners of the land that lay north of the lake.
The lake was named East Lake and its southern water mark was the plaintiffs' north property line.
The drain pipe lay in the earth on plaintiffs' land, except where it protruded into East Lake. And the land looked like this:, Plaintiffs cut a ditch parallel to the trickling pipe. East Lake fell one to two feet., Defendant's members and agents went on plaintiffs' land and filled the ditch., Plaintiffs sued defendant for trespass.
Defendant counterclaimed: (1) for damages caused to it by subsidence of water in the lake; and (2) for injunctive relief -- defendant wanted plaintiffs enjoined from maintaining the ditch, from doing any act which would lower the water level of East Lake and wanted plaintiffs ordered to restore East Lake's bank to its original condition.
After a bench trial, the circuit court found that the drain pipe was a drain for mutual benefit as provided in section 2-8 of the Illinois Drainage Code (Ill. Rev. Stat. 1987, ch. 42, par. 2-8). In consequence of that finding, the court allowed plaintiffs to repair and replace the drain pipe and enjoined defendant from interfering with the pipe or plaintiffs' repair, maintenance and replacement of the pipe. (Ill. Rev. Stat. 1987, ch. 42, pars. 2-11, 2-12.) The circuit court also enjoined plaintiffs from maintaining the ditch they had cut in the bank of East Lake (Ill. Rev. Stat. 1987, ch. 42, par. 2-8) and denied defendant's claim for damages.
We reverse the finding that the pipe was a drain for the mutual benefit, because it is against the ...