{
  "id": 5345952,
  "name": "Thaddeus S. Pierce et al., Plaintiffs-Appellees, v. Alvin W. DeJong et al., Defendants-Appellants",
  "name_abbreviation": "Pierce v. DeJong",
  "decision_date": "1973-08-22",
  "docket_number": "No. 72-119",
  "first_page": "889",
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    {
      "cite": "144 Ill. 313",
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  "last_updated": "2023-07-14T21:56:28.394088+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Thaddeus S. Pierce et al., Plaintiffs-Appellees, v. Alvin W. DeJong et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE ABRAHAMSON\ndelivered the opinion of the court:\nPlaintiffs brought suit in the circuit court of Du Page County charging that defendants (including not only the appellants but another neighbor, Robert Rodi, and a landscaper, Joseph McGoldrick, individually, and doing business as Joseph McGoldrick Landscaping) had willfully obstructed the natural flow of surface water from plaintiffs\u2019 property thus causing the water to back up on plaintiffs\u2019 adjoining property and damaging plaintiffs\u2019 trees and shrubs and making the property unusable. Plaintiffs asked $10,000 in actual damages, $100,000 in exemplary damages and for injunctive relief. Before trial defendants remedied the drainage problem and the request for injunction was withdrawn.\nDefendant Rodi was dismissed on his motion for summary judgment. Defendant Alvin W. Dejong appeared as attorney for himself, his wife, and McGoldrick, and filed their answer to the complaint and a counterclaim. Pleadings were closed and following a bench trial the court filed a written opinion and entered an order dismissing McGoldrick and rendered judgment against the Dejongs for $9470 (representing $1470 for actual damages \u2014 replacement value of trees, shrubs and bushes \u2014 $3000 for general damages and $5000 for exemplary damages). Defendants appeal from that judgment.\nDefendants contend that they cannot be held liable because the court found that the obstruction causing the back-up of water on plaintiffs\u2019 property was caused by defendant McGoldrick, the landscaper, in the course of his grading of the Dejong land, and that the court\u2019s dismissal of McGoldrick bars any recovery against the Dejongs. They also complain that plaintiffs did not meet the burden of proving McGoldrick\u2019s agency.\nThere was no need for the plaintiffs to prove agency. Paragraph 4 of the answer filed by the defendants (Dejongs and McGoldrick) and verified by defendant Alvin W. Dejong, admitted that defendant Mc-Goldrick was employed by the Dejongs and alleged \u201cby way of affirmative defense\u201d:\n\u201c[T]hat Joseph McGoIdrick, individually and doing business as Joseph McGoIdrick Landscaping, as an agent of Alvin W. Dejong, has not incurred any liability and can incur no liability under any of the allegations contained in the plaintiffs\u2019 Complaint because he was and is at all times acting as agent of the defendant Alvin W. Dejong.\u201d\nIn his testimony, defendant Alvin W. Dejong referred to defendant Mc-GoIdrick variously as \u201cmy agent\u201d and \u201cmy employee.\u201d He further testified that he assumed full responsibility for whatever McGoIdrick did and instructed Mr. McGoIdrick to final grade the swale and put sod in it which included bringing the level of his (Dejong\u2019s) land up to the level of Mr. Rodi\u2019s in certain areas, thus resulting in the blocking of the drainage about three to five inches. Thus, by both the answer filed and Mr. Dejong\u2019s testimony he not only exonerated the landscaper from any liability for his actions, but assumed it.\nDefendant further contends in effect that because not only defendant Dejong but his adjoining neighbor, defendant Rodi (who was dismissed on motion for summary judgment), and the plaintiffs had altered the natural flow of water by adding truck loads of soil to elevate their respective grades, defendants cannot be held liable. The record here clearly shows that plaintiffs\u2019 land was higher in elevation than that of the defendants, and that the only alteration of the natural flow of surface drainage was to cause it to run in a ditch along the lot line between plaintiffs\u2019 and Rodi\u2019s parcels which it did until obstructed by defendants\u2019 acts.\nAs the owner of the dominant estate, plaintiffs were entitled to uninterrupted flow of surface waters from their property across the lower or servient lands of the Dejongs. Lambert v. Alcorn, 144 Ill. 313, 325; Mauvaisterre Dist. v. Wabash Ry. Co., 299 Ill. 299, 309.\nThe manifest weight of the evidence is that the defendant, Alvin W. Dejong, violated plaintiffs\u2019 right to such flow by blocking the natural drainage along the lot line. However, there is no evidence that defendant, Arlene J. Dejong, caused the obstruction or is liable to the plaintiffs. The only basis asserted by the plaintiffs for her liability is testimony by the plaintiff\u2019s wife that one \u201cred tag from the village of Oakbrook\u201d was \u201cpulled down\u201d by defendant, Arlene J. Dejong. (The term \u201cred tag\u201d apparently refers to a so-called \u201cstop order\u201d issued by the village to call attention to the drainage condition). There is no evidence in the record whatever that she directly or indirectly caused the obstruction which resulted in the back-up of surface waters on plaintiffs\u2019 land. The court therefore erred in entering judgment against her.\nThere was sufficient evidence, however, to establish that Alvin W. Dejong was responsible for the obstruction which resulted in such accumulation and back-up, and plaintiffs are entitled to recover damages from defendant, Alvin W. Dejong, for the loss sustained by them.\nFinaHy, defendants contend the damages were excessive and that there is no basis for the award of punitive damages. The complaint asked $10,000 \u201cfor the actual damages sustained by the plaintiffs\u201d and $100,000 \u201cfor exemplary damages.\u201d In its judgment the trial court assessed $1,470 as \u201cactual damages\u201d and $3,000 as \u201cgeneral damages\u201d for \u201closs of use of plaintiffs\u2019 yard\u201d, \u201coffensive odors\u201d, possible \u201chealth hazards\u201d, and \u201cunsightly appearance.\u201d\nAs to actual damages of $1,470 the evidence offered by the plaintiff as to replacement value of trees, shrubs and bushes is unrefuted. As to so-caHed general damages, the evidence indicates that it was only on the southeast comer of plaintiffs\u2019 yard (where plaintiffs\u2019 trees and shrubs were located) where water was standing from September 19, 1967 to June 19, 1968, especiaHy following the heavy rains in September of that year and the spring thaw. Plaintiff, Thaddeus S. Pierce, testified that \u201che was deprived of the use\u201d of that portion of the yard because of his children\u2019s inability to use that portion to play on. The \u201coffensive odors\u201d and \u201cunsightly appearance\u201d as to which he testified could be attributable on the record to a humus pile maintained by plaintiffs, where they placed organic materials to decompose for use in their garden. There was no evidence concerning health hazard. We find no support in the record for awarding actual damages beyond the $1,470 assessed by the trial court, and the court erred in making an additional award of $3,000. To that extent the judgment was excessive.\nWe turn finaHy to the award of $5,000 as punitive damages. Punitive damages are not \u201ca favorite in tire law\u201d and are allowable only where the conduct is accompanied by aggravated circumstances such as willfulness, malice, fraud, or violence. (City of Chicago v. Shayne (1964), 46 Ill.App.2d 33, 38; Eshelman v. Rawalt (1921), 298 Ill. 192, 196-197; Wetmore v. Ladies of Loretto (1966), 73 Ill.App.2d 454, 467.) There is no evidence in this record as the trial court observed in its opinion \u201cthat defendants or any of them set out with deliberate intent to harm anyone\u2019s property or inflict any damage on the plaintiffs.\u201d Indeed, the record shows that before the case came to trial the condition complained of was corrected by defendant, Alvin W. Dejong. The delay in correcting it does not constitute willfulness or any other element required to justify allowance of punitive damages. The court erred in awarding punitive damages in the sum of $5,000 and in entering judgment against defendant Arlene J. Dejong. Judgment should only have been entered in the sum of $1,470 and only against defendant Alvin W. Dejong.\nJudgment is entered in this court for the plaintiffs and against the defendant, Alvin W. Dejong, for the sum of $1,470 and costs and judgment is vacated as to defendant, Arlene J. Dejong.\nAffirmed in part; vacated in part, and judgment entered.\nGUILD, P. J., and T. MORAN, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE ABRAHAMSON"
      }
    ],
    "attorneys": [
      "Jewel N. Klein, of Chicago, and Robert W. Hotte, of Elmhurst, for appellants.",
      "William L. Cregar, of Cregar & Preston, of Brookfield, for appellees."
    ],
    "corrections": "",
    "head_matter": "Thaddeus S. Pierce et al., Plaintiffs-Appellees, v. Alvin W. DeJong et al., Defendants-Appellants.\n(No. 72-119;\nSecond District \u2014\nAugust 22, 1973.\nJewel N. Klein, of Chicago, and Robert W. Hotte, of Elmhurst, for appellants.\nWilliam L. Cregar, of Cregar & Preston, of Brookfield, for appellees."
  },
  "file_name": "0889-01",
  "first_page_order": 911,
  "last_page_order": 915
}