Dettmer v. Illinois Terminal Railroad (287 Ill. 513, 1919)

Mr. Chief Justice Duncan

delivered the opinion of the court :

Appellees, Henry E. C. Dettmer, John Steinmetz and John Gremer, commissioners of Cahokia Creek Drainage and Levee District, filed in the county court of Madison county, December n, 1916, under section 11 of the Levee act, their report, stating, among other things, that they had determined the starting point, route and terminus of the proposed works and the lands to be included in the proposed drainage district, to be known as Cahokia Creek Drainage and Levee District, and found by their report that the lands included within the boundaries of the proposed district would be benefited by the construction of the proposed works and that the aggregate amount of benefits would far exceed the cost of the proposed works, recommended that the proposed district be organized and asked for the confirmation of the report. Appellant and certain other land owners filed objections to the confirmation of said report. The court heard evidence and modified the report by changing the route of the proposed ditch or drain, approved the report as modified, made the usual statutory findings and declared the district duly organized. Both parties in this appeal prayed and were allowed appeals. Appellant, the Illinois Terminal Railroad Company, has perfected its appeal, and appellees, the drainage commissioners, have assigned cross-errors.

The scheme of the proposed district is to drain the Cahokia creek valley. The watershed of the proposed district comprises about 213 square miles, of which about 170 square miles are above the Illinois Terminal Railroad Company’s bridge and the remainder is below the bridge. Cahokia creek is a winding, tortuous stream, and by reason thereof, and because it is impeded by brush, trees and other obstructions, does not allow a free flow of the water in times of heavy rain. It rises above the upper part of the proposed drainage district and empties into Diversion canal. The Diversion canal is an artificial ditch 100 feet wide on the bottom, constructed to carry off the water of Cahokia creek and Indian creek into the Mississippi river. Indian creek flows into the Cahokia creek above Diversion canal and below the proposed district. The Chicago and Alton railroad bridge crosses the Diversion cañal below the mouth of Cahokia creek. Diversion canal is about two and one-half miles below the proposed district. It is not proposed by appellees to deepen, widen or otherwise improve the channel of Cahokia creek below the proposed district. The watershed of the Diversion canal district is about 258 square miles. The improvement proposed by appellees is an open ditch, which is to form an additional channel for Cahokia creek, and begins at the center of the creek, near the Chicago, Indianapolis and St. Louis railroad, and extends to the Bohm public road northwest of Edwardsville, a distance of about six miles. The distance meandered by the creek channel between said two points is about 16 miles. The open ditch is to be of the average width of 30 feet for the upper half of the district and is to have a space between waste heaps for the passage of water of about 70 feet. In the easterly half of the lower portion of the district the ditch is of the average width of 40 feet with a space between waste heaps of 80 feet, and in the westerly part of the district from a point near the Springfield public road west, an average width of 50 feet with a space of 90 feet between waste heaps. The proposed improvement will provide a new channel on as straight a line as possible between the termini aforesaid. It is intended to prevent many overflows, reduce the time of other overflows, and very greatly increase the speed and discharge of flood waters through the valley and reduce the height of such flood waters. The natural channel of the creek .is about 40 feet between the banks, but in time of heavy rains and freshets it leaves its banks and covers its valley. There are 3124 acres of land in the proposed district and lying in said valley.

Appellant’s railroad was constructed in 1903 and 1904, and as constructed ran north and south on a high trestle from bluff to bluff across the valley of the creek, a distance of more than a quarter of a mile. This railroad across that valley is about 3300 feet east of and runs parallel with the Bohm road, the western terminus of the proposed ditch. The Alton public road runs northwest across the ditch and the creek at a point about one-quarter of a mile east of appellant’s road, and the Springfield road runs northeast across the "proposed ditch at a point about 5100 feet east of appellant’s railroad and across the creek at a point about 400 feet southwesterly of the crossing of the road and the ditch. The Wabash railroad runs about east and west on or near the south edge of the creek valley on an embankment from four to eight feet high, and crosses appellant’s road a very short distance south of appellant’s bridge on the south side of the creek valley, and also crosses the creek between the Alton road and the Springfield road about a half mile east of appellant’s road and about 300 yards south of the proposed ditch. There is a 30-foot bridge at the crossing of the Wabash railroad and appellant’s railroad, the bottom of the opening being about four feet higher than the top of the bank of the creek just north of this opening.

When appellant’s railroad was first constructed, a high trestle 329 feet long at the top, with an opening about 140 feet wide at the bottom, spanned the old channel of Cahokia creek, and a concrete and steel bridge with about a 6o-foot opening in the clear was constructed south of the trestle and against the bluff on the south side of the creek valley. Cahokia creek runs south and west in a meandering line until it crosses the Springfield road, and then it runs in a northwesterly direction in a similar line across the Alton road and the proposed ditch against the bluff on the north side of the valley. From the latter point it meanders southwest across the valley, and after striking the bluff a few hundred feet east of appellant’s road it then runs about due west to a,point about 125 feet east of appellant’s bridge aforesaid. Until some time after 1904 the old channel of the creek at said last point took a course north for about 400 feet, then crossed appellant’s right of way in a curve to the northwest under appellant’s trestle, thence curved and ran southwest to a point about 300 feet west of appellant’s bridge, and then abruptly turned and flowed in a meandering line northwesterly to the Bohm road, at which point is the western terminus of appellees’ ditch. A complete horseshoe in figure was thus made by the creek around appellant’s right of way on the north and through its trestle and thence southwest, the toes of the horseshoe being east and west of appellant’s bridge and more than 400 feet apart. A new creek channel connecting the two points of the horseshoe was constructed by appellant about the time it completed its bridge and trestle there, thus causing the creek to run a new channel under its bridge. This new channel is all on appellant’s" right of way. Later it filled up the old channel running under its trestle and filled up the trestle there, making a large and high embankment. This construction did not leave sufficient opening for the water to pass through appellant’s embankment, and as a consequence it caused the water above the embankment to be banked up several feet higher when the usual big rains would fall, until finally in 1915 the bridge was washed out by reason of a very heavy rain and was replaced soon after by the present railroad bridge there, which has an opening of about 104 feet at the surface of the ground and has two wings on either side of about 54 feet, making the opening at the top about 212 feet. Appellees’ ditch first follows the general course of the creek, crossing it many times, and running southwesterly to its crossing on the Springfield road. It then runs about due west in a straight line to the old channel of Caholcia creek and under appellant’s old trestle. After passing through appellant’s embankment in the old channel it then runs northwesterly to its terminus, at the crossing of the Bohm road and the creek. It is 60 feet wide between its banks at the surface where it passes through appellant’s embankment and crosses the creek four times between appellant’s road and the Springfield road, one of these crossings being on the Alton road, where there is a bridge. The ditch will carry about four times as much water as the creek channel. Appellees claim in their report that an opening of the width of 120 feet through appellant’s embankment at the old channel would be required to take care of the water that would be carried through their ditch, and that the width of such opening is based upon the further assumption that the present opening under appellant’s bridge 400 feet south of the old channel crossing would also be maintained.

After hearing the evidence on the objections the court overruled all objections except that of appellant as to the location of 'the proposed ditch; ordered the report of the commissioners to be modified, changing the route of the proposed ditch so that its center line would pass through the embankment of appellant 138 feet north of the center of the present bridge of appellant; made a finding that the line through the embankment where the court located the ditch is in a natural depression or water-course of said creek, and that it is necessary that an opening 120 feet wide north of the north pier of appellant’s bridge be made through said embankment at that point, and that the present channel and opening under the bridge be maintained. The court then made a further change in the route of the ditch by ordering it to cross the Alton road south of the junction of said public road and Cahokia creek and at a point where no natural depression or water-course or bridge crossed the public road, and ordered that $9000 be included in the engineer’s estimate of $81,000 to pay the cost of the bridge across the ditch on the public road required by this change. The court then entered an order that appellant remove its embankment for a distance of 120 feet northwardly of the present north pier of its bridge across the entire width of the right of way down to the natural surface, so as not to interfere with the construction of the ditch or the flow of water through the same, and that any bridge built by it should have a clear span of 120 feet between its piers or abutments and to be built at its cost, and that appellant should comply with said order within sixty days after notice shall be given to it by appellees to remove said embankment, etc., as provided by statute.

Appellant complains of the order of the court in so far as it directs that it remove its embankment and build a new bridge or lengthen its present bridge at its cost, on notice of appellees. Appellees complain of the order of the court in directing the change of the course of their ditch and for its failure to approve their report and plans as submitted, on the ground that it gives them a ditch or improvement less efficient and at much greater cost. Both parties urge that the court’s finding is erroneous that there is or was a natural depression or water-course under the appellant’s embankment where it ordered the ditch to be located and constructed. As a matter of fact, the court by its order re-located the ditch through appellant’s embanks ment on the line contended for by it on the hearing as the one most feasible and least expensive. Appellees’ engineer first recommended that the proposed ditch be constructed through the appellant’s artificial channel under its present bridge and that the opening at that place be enlarged. For some reason that plan was abandoned.

Appellant’s real contention is that the court erred in ordering it to pay the cost of extending its bridge and removing its embankment. This argument is based upon the general proposition that its property cannot be thus taken without just compensation, and that an owner of land has a legal right to change the channel of a water-course on his own land, provided he does so and returns the stream to its natural channel on his own land and without damage to the servient lands below him by causing the waters of the stream to flow onto or against the servient lands, and thereby create artificial channels or flows of water on the servient lands out of the natural channel. The second rule of law, as contended, is a well established rule. (Daum v. Cooper, 208 Ill. 391.) While this is a true proposition of law, it is to be further understood that the natural course of a stream of water cannot be thus changed so as to deprive upper land owners or owners of dominant tracts of their legal right to have the old water channel kept open when the failure to do so would deprive them of their legal right to drainage. The right of drainage through a natural water-course is an easement appurtenant to each tract of land through which the water-course runs, and each owner is bound to take notice of the easement possessed by other owners. (Chicago, Burlington and Quincy Railway Co. v. People, 212 Ill. 103.) A railroad company cannot legally fill up a part of an old water-course and make a new channel that is insufficient to provide for an increased flow of water that will be occasioned by needed drainage by proper artificial means, and then insist on the upper land owners paying for removing obstructions to such drainage and increasing the amount of its bridging. Appellant took its right of way across Cahokia creek with the implied understanding that it was to so conduct its business as to meet all changing conditions required by the public welfare of society. (East Side Levee District v. East St. Louis and Carondelet Railway, 279 Ill. 123.) The fact that an artificial drain is to be constructed, enlarging the channel of the creek and making it necessary to remove appellant’s embankment at the channel, would not constitute such a taking of its property as invades or violates the provisions of the State or Federal constitution, as contended by appellant. (Cache River Drainage District v. Chicago and Eastern Illinois Railroad Co. 255 Ill. 398; Sanitary District v. Chicago and Alton Railroad Co. 267 id. 252; Chicago, Burlington and Quincy Railway Co. v. People, 26 Sup. Ct. Rep. 341.) As the railroad company was insisting in this case that the artificial channel under its bridge is to be considered as the true channel of the creek because made entirely on its own property in accordance with its legal rights, if it is right in its contention, the law will compel it.to remove all of the obstructions placed there by it if the same is required in order to give appellees an efficient drainage system, and to construct any further bridging necessary at its own expense. After those obstructions are removed the appellees would be required to do all further work in the channel, if their plans should contemplate or provide for a further deepening of the channel there. The court by its order stated the law correctly in this regard if the drainage ditch is to be constructed through the appellant’s artificial channel and the channel enlarged. It is in accordance with section 56 of the Levee act, which provides: “When any ditch or drain or other work of enlarging any channel or water-course is located by the commissioners on the line of any natural depression or watercourse, crossing the road of any railroad company where no bridge or culvert or opening of sufficient capacity to allow the natural flow of water of such ditch or watercourse, is constructed, it shall be the duty of the commissioners to give notice to such railroad company to construct or enlarge such bridge or culvert or opening in the grade of such road, for such ditch or ditches or other work, of the dimensions named in such notice, within twenty days from the service thereof.” This section also imposes a penalty on the railroad company if it fails to comply with the directions in such notice. Section 55 of the Levee act provides that the corporate authorities of a railroad are required, at their own expense, to construct such bridge, culvert or other work, or to replace any bridge or culvert temporarily removed by such commissioners in doing their work, when constructed on the line of any natural depression, channel or water-course. While the court might have omitted this order and have entered it with the usual findings, as provided in section 16 of the Levee act, still we are unable to see in what way appellant was prejudiced by this order. Appellant is only required to comply with the order when notified by the commissioners, and under the statute it is not contemplated that they shall give such notice until the right of way is acquired, the assessment of benefits and damages has been heard and confirmed, and it is definitely determined that the ditch will be constructed across the right of way of appellant and that appellees are ready to begin the construction of the ditch at or near the railroad.

As the railroad company must be conceded, under the law, to have the right to change the channel of the stream when it is done entirely on its own land and without prejudice to the legal rights of upper or lower land owners, appellees will be required to construct their ditch through the appellant’s artificial channel under its bridge if they can obtain an efficient system of drainage for their district by so doing. If such is not possible, then their lawful right is to construct their ditch through the old channel of the .creek, as provided in their report, in which case the railroad company would have to remove its obstructions there and put in a new bridge at its cost. The fact that it may cost the drainage district a trifle more to go through the artificial channel of appellant should not be considered under the evidence in this record. The proof in this case is that it will cost appellant more than $125,000 to remove its embankment and build a new bridge oyer the opening required by appellees where appellant filled up the old channel of the creek, while it will cost only about $55,000, under the evidence, to remove the embankment and extend the bridge in accordance with the court’s order. The evidence in this record should have been, but was not, specifically directed to the question whether or not an efficient drainage district could have been established by appellees ■ by driving their ditch through appellant’s artificial channel. It should be further shown that such a ditch would be practicable and feasible as well as efficient. The difference in cost of the two ditches in question would only be material in case it was shown that an efficient ditch through the artificial channel would be at a cost prohibitive,—i.