(No. 1307

#### A. J. Johnson, Claimant, vs. State of Illinois, Respondent.

Opinion filed March 28, 1929.

Rehearing denied May 9, 1929.

Bellatti, Samuel & Morarity, for claimant.

Oscar E. Carlstrom, Attorney General; Frank B. Eagle-ton, Assistant Attorney General, for respondent.

Mr. Chief Justice Clarity

delivered the opinion of the court:

This is a claim filed by A. J. Johnson, residing on a farm located about two miles north of Alexander, Morgan county, *257Illinois, Mr. Johnson having been a tenant on a farm of 510% acres for a period of over forty years. Three hundred and twenty acres of the farm is first class farming land for which Mr. Johnson paid $9.00 an acre cash rent, each year for the last five years. A portion of the 320 acres abuts upon the hard road known as State Highway No. 3. This claim is based upon damages done to sixty acres of the land which is located in the East Half of Section 13, Township 15, North, Range 9, West of the Third Principal Meridian, Morgan county, Illinois, and which is immediately west of the hard road. Claimant asks damages in the sum of $1,500.00 on account of loss of crops during the year 1926, when the water falling upon said sixty acres reduced the yield of the crop so that claimant sustained a total loss of $1,500.00, and claimant avers that this loss was due to faulty construction of the hard road and improper means of drainage.

The demurrer filed by the Attorney General is sustained as a matter of law.

We have carefully considered the testimony introduced in support of this claim, and have studied the plat submitted by the State. We find that the highest point on said hard road involved in this case was at the southern end of said damaged property and has an elevation of 649.60; that the highest point in the ditch on said hard road involved in this suit was on the south and is 649.4 and has a gradual downward slope entirely along and in front of said alleged damaged farm lands; that the right of way line along the west side of said premises is at all points higher than the highest point in said ditch involved in this case; that the ditch to the west of the hard road involved in this case is at all points therein lower than the lowest point in the said farm lands alleged to be damaged as a result of water being held on said premises; that the climatological data given shows the continous rains during the months of May, June and July, in the year 1926 to be far above the average, and the fact that water was not properly drained from said premises during that period was due to no negligence on the part of the defendant, the State of Illinois. The claim is accordingly denied.

On May 9, 1929, upon petition for rehearing the following additional opinion was filed:

*258Per Curiam:

This cause coming on for rehearing upon petition of claimant filed on April 22, 1929, and after argument of counsel and the court having sufficiently reviewed the matter brought upon said petition, and that it appearing* that said petition should be denied,

It is therefore considered by the court, that the said petition he, and the same is hereby denied.