{
  "id": 5221921,
  "name": "Village of Crossville v. James E. Stuart",
  "name_abbreviation": "Village of Crossville v. Stuart",
  "decision_date": "1898-08-31",
  "docket_number": "",
  "first_page": "513",
  "last_page": "516",
  "citations": [
    {
      "type": "official",
      "cite": "77 Ill. App. 513"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "34 Ill. App. 89",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "opinion_index": 0
    },
    {
      "cite": "28 Ill. App. 369",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "opinion_index": 0
    },
    {
      "cite": "128 Ill. 276",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": 0
    },
    {
      "cite": "132 Ill. 634",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": 0
    },
    {
      "cite": "109 Ill. 619",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": 0
    },
    {
      "cite": "77 Ill. 219",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": 0
    },
    {
      "cite": "31 Ill. App. 568",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T16:36:43.320990+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Village of Crossville v. James E. Stuart."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Worthington\ndelivered the opinion of the court.\nAction against appellant for flowing appellee\u2019s lot, by cutting ditches and changing the natural flow of surface water.\nPlea of not guilty.\nVerdict and judgment for $50.\nThe questions at issue are questions of fact, involving the lay of the ground in and adjacent to the village, as bearing upon the natural flow of surface water, and the action of appellant in constructing ditches. The evidence is sharply conflicting. There were eleven witnesses for the plaintiff and fifteen for the defendant. They testified referring to maps produced at the trial by each side. The court and jury seeing and hearing the witnesses and seeing the localities pointed out by them on the maps, were better able to pass upon questions of fact than we are. There is ample evidence to sustain the verdict if uncontradicted. When this is the case, an Appellate Court will not set aside a verdict on the evidence alone. \u201c It is only where there is no evidence in the case upon which the finding of the jury can rest, or when the finding is against the clear weight of the evidence, that we are justified in setting their verdict aside.\u201d T., St. L. & K. C. R. R. Co. v. Cline, 31 Ill. App. 568.\n\u201cThe rule is that where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the Appellate Court, justify a different result.\u201d T. W. & W. R. Co. v. Moore, 77 Ill. 219.\nIt is urged by appellant that the latter part of the third instruction given for appellee is erroneous.\nThe instruction is as follows:\n\u201cYou are instructed that the rules of law which should govern you in the present case are as follows: That the lower tract of land must be subject to all the natural flow of water from the upper land, and that the defendants in this case would have no right to divert more Water than would naturally flow onto the plaintiff\u2019s land, nor has the defendant \u00e1 right to make new excavations or drains by which the flow of water is diverted from its natural channel, nor can defendant collect into one channel water naturally flowing into another channel upon the surface as surface water, and thus increase the water upon the premises of the plaintiff.\u201d (Given.) .\nIt is said in Peck v. Herrington, 109 Ill. 619, cited by appellant, \u201c It may be regarded as a well settled rule that the owner of the upper field can not construct drains or ditches so as to create new channels for water in the lower fields, but he may make such drains for agricultural purposes, on his own land, as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well-defined channel, which carries the water from the upper to the lower field.\u201d\nIn this case the court say: \u201c The natural flow of this water was not changed by the drainage.\u201d\nThe clause of the instruction complained of is: \u201c Nor can defendant collect into one channel water naturally flowing in another channel upon the surface as surface water, and thus increase the water upon the premises of the plaintiff.\u201d\nTo speak of water flowing in a channel as \u201c surface water,\u201d \u201c upon the surface,\u201d is confusing and contradictory in terms. Water flowing in a channel is not flowing on the surface, as that phrase is understood. It may have been surface water, and surface water may be gathered into a natural channel, although thereby increasing the flow by that channel upon the servient estate, and no liability be thereby incurred. But when gathered into a natural channel, that leads from the dominant to the servient estate, it can not then be diverted into another natural channel so as to increase the flow by that channel upon the sejrvient estate. The instruction is therefore ambiguous and faulty.\nWe do not think, however, that when considered with the rest of the instruction, the clause amounts to reversible error, especially in view of the clear and pointed language us\u00e9d in appellant\u2019s third instruction, which is as follows: \u201c The charge in the declaration is that the defendant unlawfully cut ditches that carried water onto the land of Stewart that would not naturally flow upon it. If the defendant has not done this, the jury should find for the defendant.\u201d\nThe law is that while the flow of surface water from the dominant estate upon the servient estate may, in the inter\u00e9sts of good husbandry, be increased by ditches and drains, its natural flow from the surface in one channel can not be diverted into another and different channel so as to increase the flow upon the servient estate.\nIn Union Drainage Dist. v. O\u2019Reilly, 132 Ill. 634, it is said: \u201cAs the servient estate, the land of appellees was required to bear the servitude of having cast upon its surface to flow through the natural channels across it, the water that in a state of nature would flow over or upon it through such channels only.\u201d\nTo the same effect are: Peck v. Harrington, supra; Dayton v. Drain. Com\u2019rs, 128 Ill. 276; C. & A. R. Co. v. Glenney, 28 Ill. App. 369; Graham v. Keene, 34 Ill. App. 89.\nConsidering all the instructions together, the jury was not misinformed as to the law, and their conclusion as to the facts should not be disturbed. Judgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Worthington"
      }
    ],
    "attorneys": [
      "Parish & Parish and 0. S. Conger, attorneys for appellant.",
      "N. Holderby, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "Village of Crossville v. James E. Stuart.\n\u2022 1. Verdicts\u2014Where There is Evidence to Sustain.\u2014Where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the Appellate Court, justify a different result.\n2. Surface Water\u2014Drains for Agricultural Purposes.\u2014The owner of the upper field can not construct drains or ditches so as to create new channels for water in the lower fields, but he may make such drains for agricultural purposes, on his own land, as may be required by good husbandry, although, by so doing, the flow of water may be increased in a regular well-defined channel, which carries the water from the upper to the lower field.\n3. Same\u2014When the Flow of it May be Increased,.\u2014While the flow of surface water from the dominant estate upon the servient estate may, in the interests of good husbandry, be increased by ditches and drains, its natural flow from the surface in one channel can not be diverted into another and different channel so as to increase the flow upon the servient estate.\n4. Same\u2014Servient Estate Must Bear the Burden.\u2014The servient estate is required to bear the burden of having cast upon its surface, to flow through natural channels across it, the water which in a state of nature would flow over or upon it through such channels only.\nTrespass on the Case, for changing the natural flow of surface water. Trial in the Circuit Court of White County; the Hon. Prince A. Pearce, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.\nHeard in this court at the February term, 1898.\nAffirmed.\nOpinion filed August 31, 1898.\nParish & Parish and 0. S. Conger, attorneys for appellant.\nN. Holderby, attorney for appellee."
  },
  "file_name": "0513-01",
  "first_page_order": 515,
  "last_page_order": 518
}
