Peters v. Milks Grove Special Drainage District No. 1

610 N.E.2d 1385, 243 Ill. App. 3d 14, 183 Ill. Dec. 141, 1993 Ill. App. LEXIS 467
CourtAppellate Court of Illinois
DecidedApril 1, 1993
Docket3-92-0413
StatusPublished
Cited by13 cases

This text of 610 N.E.2d 1385 (Peters v. Milks Grove Special Drainage District No. 1) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peters v. Milks Grove Special Drainage District No. 1, 610 N.E.2d 1385, 243 Ill. App. 3d 14, 183 Ill. Dec. 141, 1993 Ill. App. LEXIS 467 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Clarence Peters (Peters), appeals from the judgment of the circuit court of Iroquois County denying his motions for a preliminary and permanent injunction enjoining Milks Grove Special Drainage District (the District) from enlarging its easement across his property and for an order requiring the District to repair a bridge located on his property.

The District dredged its drainage ditch which crossed Peters’ property. As a result of the dredging, the District deposited newly excavated soil beyond the boundaries of the District’s old spoil bank. The District failed to prove the location or width of its easement. Accordingly, we hold that, absent a written grant defining the location and width of the District’s easement across Peters’ property, the easement was limited to the extent of the District’s prior actual use. We find that the District has exceeded the prior actual use of its easement and has taken 1.65 acres of Peters’ land for public use without paying just compensation. Peters’ land was valued at $2,500 per acre. Consequently, the District must pay Peters $4,125.

Next, we examine the condition of the bridge which spans the District’s drainage ditch. We find that the District has an absolute duty to maintain the bridge in a good state of repair. The Illinois Drainage Code (Drainage Code) (Ill. Rev. Stat. 1991, ch. 42, par. 12 — 5) requires the District to maintain the bridge which spans the drainage ditch because it was the sole means of access from one landlocked portion of Peters’ property to the other portion of the farm. We conclude that the adjoining landowners’ grant of an easement, which was not accepted by Peters, did not relieve the District of its legal obligation to maintain the bridge.

Therefore, for reasons which follow, the judgment of the circuit court of Iroquois County is reversed in part, affirmed in part, and judgment is hereby entered in favor of Peters and against the District in the amount of $4,125.

Peters and his family have farmed the land in question for over 50 years. The District has an easement for a drainage ditch which runs generally in an east-west direction across Peters’ property. For the past 50 years, the District has never cleaned the ditch which crosses Peters’ property. The berm of the ditch became forested over the years and was generally used as a wildlife preserve. Peters testified that even following a heavy rain, the ditch cleared within a day or two and never overflowed its banks. Peters said he never observed any flooding which would require the District to clean the drainage ditch.

In 1990, the District embarked on a major dredging program. Before the dredging began, Peters asked one of the District’s commissioners not to do any dredging on his land and at the very least not to remove any trees located on the south bank of the ditch. That spring, Peters discovered dredging equipment on his property. Edward Hackl, Jr., was the District’s dredging contractor. Hackl used a drag line to dredge the ditch and clearcut the berm. He testified that the District’s commissioners told him they had a 200-foot-wide easement across Peters’ land. Hackl said the commissioners led him to believe that he could use whatever area was necessary to complete the work on Peters’ property.

Before Hackl completed the work, Peters filed a motion for preliminary injunction to prevent further dredging on his land. On May 18, 1990, the trial court granted Peters only part of the injunctive relief he sought. The court limited the District to using only that portion of Peters’ property which was located next to the ditch. The court further limited the District to use only as much of the land as was reasonably necessary to complete the cleaning and dredging.

Ultimately, Hackl removed and burned over 2,000 trees, and cleared all brush and grass from the north and south banks. He hauled silt from the drainage ditch and put it on Peters’ property. Hackl dumped and spread the silt on land which was being farmed by Peters. Following the dredging, the slopes of the ditch, which previously were stabilized by vegetation, eroded badly. Peters and David Noble, a licensed civil engineer, testified that the District’s spoil bank was expanded on both sides of the old spoil bank. Noble testified that the north spoil bank was expanded an average width of nine feet and the south spoil bank was expanded an average width of 17.5 feet. Noble used a survey to show how the District had taken 1.65 acres of Peters’ property. Noble’s testimony was uncontradicted, and his survey was admitted into evidence.

The powers and duties of drainage districts and their commissioners are found in the Drainage Code (Ill. Rev. Stat. 1991, ch. 42, par. 1 — 1 et seq.). The commissioners are under the general supervision of the circuit courts of the county in which the district is organized. (Ill. Rev. Stat. 1991, ch. 42, pars. 4 — 19 through 4 — 24, 4 — 27 through 4— 29, 4 — 32.) The circuit court has the power to settle disputes between the commissioners and any landowner of the district concerning: (1) the nature and extent of the drainage system; (2) the commissioners’ duty to provide drainage to district lands; (3) protecting landowners from overflow; and (4) keeping the drainage system in repair. Either the landowner or the commissioners may petition the circuit court to specify and define the commissioners’ duties and obligations. Ill. Rev. Stat. 1991, ch. 42, par. 4 — 26.

Commissioners have broad powers to carry out a district’s purposes, among them: to do all acts needed to survey, construct, alter, enlarge, protect, repair and maintain its drainage works; to go upon, examine and survey lands within or outside the district in connection with its work, “doing no more damage than the occasion may require”; and after constructing drainage works, to enter onto those lands “forever thereafter” to protect, maintain and repair them. Ill. Rev. Stat. 1991, ch. 42, par. 4 — 14.

The commissioners may “without prior authorization of the court, use corporate funds of the district for the repair, maintenance, operation or improvement of drains, levees, pumping plants and other works of the district when such repair, maintenance, operation or improvement does not involve any substantial or material alteration, enlargement or extension.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 42, par. 4 — 15.

Also, the commissioners are bound to protect environmental values. “[T]he commissioners shall use all practicable means and measures, including consideration of alternative methods of providing the necessary drainage, to protect such environmental values as trees and fish and wildlife habitat, and to avoid erosion and pollution of the land, water or air.” Ill. Rev. Stat. 1991, ch. 42, par. 4 — 15.1.

In Wessels v. Colebank (1898), 174 Ill. 618, 51 N.E. 639, the supreme court construed the original Farm Drainage Act. The court held that the right to have a drainage ditch maintained and to have water flow through it unobstructed is a permanent one, binding upon the owners of the land and their grantees. The supreme court further held “the common law annexes to the easement of a drain in another’s land the right to go upon such land and clean out or repair such drain without doing unnecessary injury to the land.” Wessels, 174 Ill. at 625.

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Bluebook (online)
610 N.E.2d 1385, 243 Ill. App. 3d 14, 183 Ill. Dec. 141, 1993 Ill. App. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-milks-grove-special-drainage-district-no-1-illappct-1993.