Appeal from the Circuit Court of Madison County. No. 97-CH-108 Honorable Ann Callis, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
This is a controversy between neighboring landowners. James W. Sparks and Margaret A. Sparks (plaintiffs) sought injunctive relief against Donald E. Gray, Virginia Gray, and Elaine Fournie, the Grays' daughter (defendants), alleging that defendants engaged in a course of conduct "so as to cause water to come onto the property of the plaintiffs." Plaintiffs alleged that the following actions by defendants caused water to come onto their property: (1) defendants pumped water into a ditch between the parcels which, because of inadequate capacity and drainage, caused water to overflow onto plaintiffs' land, (2) defendants altered the natural flow of water by constructing certain ditches and flap gates, (3) defendants placed fill dirt onto defendants' lands at some locations that are lower in elevation than the plaintiffs' land, and (4) defendants constructed a levy, thereby creating a dam-like structure.
Following a bench trial in the circuit court of Madison County, the trial court granted the injunction, prohibiting defendants from pumping water into the common ditch at a time when the water in the ditch would spill over to plaintiffs' land, finding that defendants did not construct certain ditches and flap gates, enjoining defendants from placing fill on their lands, and denying plaintiffs' request that defendants remove the levy. The injunction was granted to prevent significant water accumulation on plaintiffs' property. On appeal, defendants contend that the trial court entered the injunction without sufficient proof that a specific and substantial injury would occur. For the reasons that follow, we reverse.
The parties own adjoining properties located in Pontoon Beach. The properties are located within the confines of a triangular perimeter bordered by Interstate Route 255 to the east, Horseshoe Lake Road (also known as County Highway 35) to the south, and the Cahokia Canal (the Canal) to the northwest. The properties are located in a flood plain known as the "American Bottoms." The properties have been described by plaintiff James Sparks as "low lying[,] *** subject to retaining and taking water." Although the properties are "confined" within this triangular perimeter, there are several ditches and drains located throughout the properties.
In order to satisfy the requirements to obtain a building permit from the City of Pontoon Beach, the ground floor of any new construction must have an elevation of at least 417 feet above sea level. That level marks the elevation to which water is expected to rise in the event of a 100-year flood. Defendants' properties lie below the 417-foot level. Plaintiffs' house sits at 423 feet above sea level, but not all of plaintiffs' property sits above 423 feet. Part of plaintiffs' property lies at or near the same level as defendants' properties. The record shows that much of Horseshoe Lake Road is 415.5 to 417 feet above sea level. Certainly, the Canal is lower than both plaintiffs' and defendants' properties, or else water would not be able to drain from the properties into the Canal.
In an attempt to fill their land to the 417-foot level, defendants began to place a significant amount of fill dirt on their properties. Defendant Donald Gray testified that it was his intent to eventually fill all of his land to the 417-foot level, with a few exceptions, but that he did not think that he would be able to complete the task during his lifetime.
As we mentioned earlier, several ditches and drains are located on or about the properties. A common ditch apparently divides the parties' properties. Testimony by James W. Sparks indicates that another ditch drains into the common ditch. The common ditch drains north into a detention basin that was created when Interstate 255 was constructed and also drains south into a ditch parallel to Horseshoe Lake Road that empties into the Canal. Water empties from these ditches through flap gates that open into the area in which the water drains. Sometimes, however, the water level in the ditches, the Canal, and/or the basin is at a level higher than the flap gates, thereby preventing the flap gates from opening. When this occurs, water cannot escape the properties. Eventually, the water in the Canal or the basin or the common ditch recedes to a point where the flap gates are able to open again, and the water that had accumulated on the properties then drains into the Canal. Were it not for the flap gates, the water level on plaintiffs' and defendants' properties would be that of the level of water in the Canal.
The dispute between the parties arose when defendants began raising the level of their land. As stated above, defendants' properties are the lower-lying properties. As a result, defendants' properties are where the water would begin to accumulate first when the flap gates would not open and the water could not drain. By filling their land to a level higher than plaintiffs', water would accumulate first in the ditch because the ditch is lower so that the water could flow into the Canal. The water will then not flow into the Canal until the water in the Canal starts to recede.
On March 7, 1997, plaintiffs filed a complaint against defendants, requesting a temporary injunction and a permanent injunction. Plaintiffs claimed that defendants' actions cause water to come onto their property, that the lands of plaintiffs have become flooded and damaged, and that plaintiffs have suffered irreparable harm as a result of the activities of defendants.
On April 25, 1997, plaintiffs filed a motion for a temporary injunction, asking the trial court to restrain and enjoin defendants from performing any act or allowing any act to be performed upon their lands that would alter the natural flow of water. Again, plaintiffs alleged that defendants were flooding and damaging plaintiffs' land by pumping water into a ditch between the adjoining properties, building ditches and flap gates, placing fill dirt on defendants' lands, and building a levy. Plaintiffs argued that the flooding of their property caused irreparable harm for which they had no adequate remedy at law.
A trial was had without a jury, and by the agreement of the parties, the court personally surveyed the premises.
At the bench trial, James W. Sparks testified that when the water level is high in the basin, the Canal, or the common ditch, the flap gates do not open and water does not drain. Because the water cannot flow into the Canal because the water level in the Canal is at a higher level, it spreads out onto the parties' properties. Sparks testified that defendants' properties are the low-lying property and that, therefore, when the water backs up, it spreads to defendants' properties first. However, Sparks contended that if defendants are allowed to fill their land, they will no longer be the low-lying property and water will then back up onto plaintiffs' property. Sparks testified that some of this has already been occurring.
Each party also presented an expert who testified at length about the effects of placing various amounts of fill on defendants' lands or on both plaintiffs' and defendants' lands. Plaintiffs' expert, Walter Blotevogel, a civil engineer, testified that any bucket of fill placed on land within the triangle bounded by the interstate, the road, and the canal would "displace" a bucket of water and hence reduce the storage area within the triangle. When asked to assume that 9,000 cubic yards of fill had been placed on defendants' properties, Blotevogel testified that it would raise the level of water in the triangle "a significant amount." When asked whether he believed that the size of the head of a pin was a significant amount, Blotevogel responded that he believed that any amount would be a significant amount.
Defendants' expert, Jimmy Stuart, did an elevation survey of the area in question. He testified that for every cubic yard of dirt put on the land, water is displaced. He estimated that 5,300 cubic yards of fill had been placed on the Gray property and 6,845 cubic yards on the Fournie property. Stuart admitted that the fill on defendants' properties ...