{
  "id": 2550002,
  "name": "Patrick Kennedy v. Mary Murphy",
  "name_abbreviation": "Kennedy v. Murphy",
  "decision_date": "1903-10-23",
  "docket_number": "Gen. No. 4,233",
  "first_page": "607",
  "last_page": "611",
  "citations": [
    {
      "type": "official",
      "cite": "112 Ill. App. 607"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "109 Ill. 611",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2854089
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/109/0611-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 429,
    "char_count": 9458,
    "ocr_confidence": 0.585,
    "pagerank": {
      "raw": 4.565170110192638e-08,
      "percentile": 0.28602594205299225
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    "sha256": "8322b9f729b613b4e770ccfd3268bc70c7c0930acb41c280dc2e00cf84e319ed",
    "simhash": "1:b6449147a0512a44",
    "word_count": 1658
  },
  "last_updated": "2023-07-14T20:42:28.128679+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Patrick Kennedy v. Mary Murphy."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Dibell\ndelivered the opinion of the court.\nKennedy owned land in DeKalb county; Larson owned land next west; and O\u2019Brien owned land next north of the Kennedy and Larson lands. The natural flow of surface water over said lands was from northwest to southeast. In a state of nature the water which flowed from the O\u2019Brien land left it at about the northeast corner of Larson\u2019s and northwest corner of Kennedy\u2019s in a natural depression, and crossing the corner only of Larson\u2019s ran southeasterly across Kennedy\u2019s land to a stream below. Kennedy and Larson had dug a ditch which began at or about the line between them and about thirty-three rods south of their north line, and ran easterly and a little southerly about eighteen rods to the depression wherein the water from the O\u2019Brien land flowed. The surface in this depression on Kennedy\u2019s and Larson\u2019s lands, near their north line, was a little higher than the surface of that depression on O\u2019Brien\u2019s land, so that\u2019 some water would stand on the O\u2019Brien land till it evaporated or seeped away. If this rim had been on.tlie O\u2019Brien land he would have hada right to cut through it in the line of the natural depression, and discharge this standing water upon Kennedy\u2019s land. Peck v. Herrington, 109 Ill. 611. But the rim or higher land which held back this water was not on his land and he could not lawfully go upon the land of the others and cut a ditch to let the waters off his land. O\u2019Brien was a minor. His guardian, Mrs. Mary Murphy, caused a ditch to be dug south about thirty-three rods on the Larson land and just west of Larson\u2019s east line, and laid tile therein, and then discharged it into the open ditch cut by Kennedy and Larson, and thus cast upon Kennedy\u2019s land at that point the waters which collected upon the O\u2019Brien farm. Mrs. Murphy directed this work and paid for it. This is a suit brought by Kennedy against Mrs. Murphy for the damage which he alleged was thereby inflicted upon his land. He recovered $96 damages before a justice, but on a jury trial in the Circuit Court on appeal there was a verdict for defendant. A motion by plaintiff for a new trial was denied, and there was a judgment against plaintiff for costs, from which he appeals.\nBy the course pursued Mrs. Murphy cast the waters from the O\u2019Brien land upon Kennedy\u2019s land, not in the depression where they were accustomed to run, from his north line southeasterly across his land, but at a point on his west line thirty-three rods south of his north line, and eighteen rods west of where the depression ran at that distance south of his north line, and where said waters never would have gone in a state of nature. If O\u2019Brien had owned the Larson land he would have no right to convey these waters to that point by an artificial ditch cut through higher land, and discharge them upon Kennedy\u2019s land at that place, and no consent obtained from Larson could give O\u2019Brien that right. By this ditch Mrs. Murphy also brought upon Kennedy\u2019s land, waters'which she could not have got upon his land at his north line by any ditch she could have cut in the natural depression, but which must have stood upon' O\u2019Brien\u2019s land. She has dug around the rim of higher land along Kennedy\u2019s north line, and discharged the waters thirty-three rods further south, where his land is lower. This she had no right to do. In two- respects therefore, Mrs. Murphy violated Kennedy\u2019s rights; she discharged waters upon his land at a point where they would never have flowed in a state of nature, and she discharged waters there which could not have been got upon his land at all by following the natural depression, but which would have remained standing upon the O\u2019Brien land. There is practically no dispute in the proof on these points. Therefore, Kennedy is entitled to recover damages f,or these wrongful acts. The verdict cannot be supported by the testimony of witnesses that it did his land no harm. The invasion of his right would entitle him to nominal damages even if the re-suit was beneficial to his land. Mrs. Murphy could not decide how Kennedy\u2019s lands should be improved, and for that purpose change the place nature had provided for discharging upon his land the waters from the O\u2019Brien land. There was also proof that Mrs. Murphy\u2019s ditch at its outlet was cut a short distance into Kennedy\u2019s land. Other proofs denied this. If it was so cut, that act also gave Kennedy a cause of action.\nCertain witnesses for defendants had tiled their lands into the O\u2019Brien farm so that the water discharged from said tile would flow upon plaintiff\u2019s land through the ditch of which complaint is here made. On cross-examination they were asked if they had paid anything to discharge their ditches into the O\u2019Brien land. The court sustained an objection to those questions and refused leave- to plaintiff to prove money had been so paid. We think the questions were proper cross-examination to show the interest of the witnesses in the event of the suit. If any of this water would have naturally flowed off some other way, and not through this depression, that fact would also have been competent original testimony for plaintiff.\nThe judgment is reversed and the cause remanded.\nReversed and remanded.\nIn disposing of a petition for a rehearing the following additional opinion was filed:\nPer Curiam.\nAppellee has filed a petition for a rehearing in which she insists that the testimony of her witnesses escaped our attention. On the contrary that testimony was given the fullest attention, not only as set .out in the abstract and in .the additional abstract and in appellee\u2019s briefs, but also as it appears at large in the record. It is perhaps true that the expression in our foregoing opinion, that there is practically .no dispute in the proof on certain points, may be too strong. Some of appellee\u2019s witnesses said that in a state of nature the water from the O\u2019Brien land passed along the same line where appellee caused the tile to be laid, and that all the water the tile carried was before that discharged into this same open ditch. Others, however, showed'that neither of these statements was whplly true. It is true that in a state of nature what water escaped from the O\u2019Brien farm reached appellant\u2019s open ditch at some point on his lands. But the levels given on the surveyor\u2019s plat were not contradicted, and they showed that at the boundary between the O\u2019Brien land on the north and the Larson and Kennedy lands on the south the land was higher than further north on the O\u2019Brien .land, so that in a state of nature part of the water on the O\u2019Brien land could not flow upon the Larson and Kennedy land; and some of defendant\u2019s witnesses admitted that in a state of nature water stood upon the O\u2019Brien land for considerable periods of time, from which it follows that the tile ditch casts upon appellant\u2019s land, water which otherwise wrnuld not have reached it. Again, the plat and levels of the surveyor showed that what water left the O\u2019Brien land reached Kennedy\u2019s open ditch 300 feet (or eighteen rods) east and slightly south of where the open ditch passed from the Larson land into the Kennedy land. We think it evident most of appellee\u2019s witnesses only meant that in a state of nature the water from the O\u2019Brien land finally got into Kennedy\u2019s open ditch at some point, and not that it reached that ditch at'the line between Larson and Kennedy. Her witness, Larson, expressly stated it did not use to flow into the open ditch at that point, and that her tile ditch was cut through a rise in the ground, thus confirming the plat. The water which left the O\u2019Brien land did originally run for a distance of some 200 feet near the line between Larson and Kennedy, so that those who said it ran on the same line before and after the'tile was laid told a partial truth, but the plat shows the natural waterway then turned off and ran in a southeasterly direction, while appellee caused the tile to be continued 300 feet further south, inside Larson\u2019s line, and through a rise in the ground. By that means the water reached appellant\u2019s land at a point where it had never come before. We regard it as entirely clear that according to the proof in this record, appellant has a cause of action. The petition for a rehearing is denied.",
        "type": "majority",
        "author": "Mr. Presiding Justice Dibell Per Curiam."
      }
    ],
    "attorneys": [
      "Jones & Rogers and J. E. Matteson, for appellant.",
      "Cliffe & Cliffe and James W. Cliffe, for appellee."
    ],
    "corrections": "",
    "head_matter": "Patrick Kennedy v. Mary Murphy.\nGen. No. 4,233.\n1. Discharging water upon another\u2019s land\u2014when liability for, exists. Where one landowner causes water to be discharged upon the land of an adjoining owner at a point where such water would never have flowed in a state of nature, and where such owner, likewise, discharges water thereon which would not have gone upon such land by following the natural depression of the land, such injured landowner is entitled to nominal damages even if the result was beneficial to his land, and is, likewise, entitled to whatever actual damages he may have sustained.\n2. Cross-examination\u2014what proper upon. Questions which tend to show the interest of witnesses testifying, are competent upon the cross-examination of such witnesses.\nAction commenced before justice of the peace. Appeal from the Circuit Court of De Ealb County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1903.\nReversed and remanded.\nOpinion filed October 23, 1903.\nRehearing denied and additional opinion filed April 7, 1904.\nJones & Rogers and J. E. Matteson, for appellant.\nCliffe & Cliffe and James W. Cliffe, for appellee."
  },
  "file_name": "0607-01",
  "first_page_order": 625,
  "last_page_order": 629
}