Chicago, Burlington & Quincy Railway Company v. Illinois
This is a contest between certain drainage commissioners in Illinois and the Chicago, Burlington, & Quincy Railway Company, as to the validity of a demand made by the former that the latter should remove the bridge and culvert now maintained by it over Rob Roy creek, in Kendall county, Illinois, and, if it continues to maintain a bridge and culvert at the same point, that one be substituted that will meet the requirements of a certain plan of drainage adopted by those commissioners. Let us see in what way the dispute arises.

This suit or proceeding is based in part on what is known as the farm drainage act of Illinois, in force July 1st, 1885, entitled, 'An Act Provided for Drainage for Agricultural and Sanitary Purposes, etc.' Hurd's Rev. Stat. (Ill.) 1901, p. 712. By that act the commissioners of highways in each town, in the several counties under township organization, are constituted drainage commissioners for all drainage districts in their respective towns, with power as a body politic to sue and be sued, contract and be contracted with. § 1. Owners of lands are authorized to 'drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural water course, or into any natural depression, whereby the water will be carried into some natural water course, or into some drain on the public highway, with the consent of the commissioners thereto; and when such drainage is wholly upon the owner's land, he shall not be liable in damages therefor to any person or persons or corporation.' § 4.

The act also provided: 'When the case involves a system of combined drainage in one town, and it is proposed that the cost shall be borne proportionately by the several parties benefited, a petition addressed to the drainage commissioners shall be presented to the town clerk, signed by a majority in number of the adult owners of land lying in a proposed district, and they shall be the owners in the aggregate of more than one third of the lands lying in the proposed district, or by the owners of the major part of the land and who constitute one third or more of the owners of the land in the proposed district, setting forth the boundaries, or a description of the several tracts of land thereof or fractions as usually designated: . . . Said petition shall state that the lands lying within the boundaries of said proposed district require a combined system of drainage or protection from wash or overflow; that the petitioners desire that a drainage district may be organized, embracing the lands therein mentioned, for the purpose of constructing, repairing, or maintaining a drain or drains, ditch or ditches, embankment or embankments, grade or grades, or all or either, within said district, for agricultural and sanitary purposes, by special assessments upon the property benefited thereby.' § 11. Again: 'Upon the organization of a drainage district, the commissioners shall go upon the land and determine upon a system of drainage, which shall provide main outlets of ample capacity for the waters of the district, having in view the future contingencies, as well as the present. . . . The maps and papers showing the final determination as to the system of drainage shall be filed in the clerk's office and be recorded in the drainage record.' § 17. Hurd's Rev. Stat. (Ill.) 1901, pp. 713, 714, 717.

Section 40 1/2 has, however, a more special application to the present case. It is in these words: 'The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work, and the cost of the same shall be paid out of the road and bridge tax, or by the railroad company, as the case may be: Provided, however, notice shall first be given to the road or railroad authorities to build or construct such bridge or culvert, and they shall have thirty days in which to build or construct the same, such bridges or culverts shall, in all cases, be constructed so as not to interfere with the free flow of water through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the commissioners constructing the same may recover the cost and expenses therefor in a suit against said company before any justice of the peace or any court having jurisdiction, and reasonable attorney's fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individual landowners.' § 40 1/2. Ibid., 723.

It is contended by the defendants in error that § 56 of what is known as the levee act has a bearing on the case. That section need not, however, be set out, as the supreme court of the state adjudged in this case that a district organized under the farm drainage act was subject only to the provisions of that act, and that the drainage commissioners could not claim any authority under the other act. 212 Ill. 103, 72 N. E. 219. See also Gauen v. Moredock & I. L. Drainage Dist. No. 1, 131 Ill. 446, 23 N. E. 633; Drainage Comrs. v. Volke, 163 Ill. 243, 45 N. E. 415; McCaleb v. Coon Run Drainage & Levee District, 190 Ill. 549, 60 N. E. 898.

The present proceeding was instituted in the circuit court of Kendall county, Illinois, by the defendants in error as drainage commissioners for the Bristol drainage district in that county, against the Chicago, Burlington, & Quincy Railway Company. It is a petition for mandamus.

Besides a general demurrer, the railway company demurred specially upon the ground that a judgment in favor of the commissioners would take its property for public use without compensation, and therefore without due process of law, as well as deny to it the equal protection of the laws, in violation of the Constitution of the United States. The demurrer was overruled. The defendant having elected to stand by its demurrer, judgment was rendered ordering a writ of mandamus as prayed for in the petition. That judgment was affirmed by the supreme court of Illinois, 212 Ill. 103, 72 N. E. 219, and hence the present writ of error.

As the case was determined upon the demurrer, the facts are to be taken as alleged in the petition. The case, thus presented, is as follows:

The drainage district in question was organized under the farm drainage act above referred to and contains about 2,000 acres of land on both sides of Rob Roy creek, across which are the road and right of way of the railway company. For more than fifty years before the district was established, that creek had been, as it now is, a natural water course. Prior to June 24th, 1903, the commissioners located a ditch or drain on the line of the creek for the purpose of enlarging its channel or water course, and thereby enabling the lands in the drainage district to be better drained and made more tillable.

The railway company operated and maintained its road across Rob Roy creek, not under any specific grant of authority, but under its general corporate power to construct, operate, and maintain a railroad. It placed a bridge or culvert 12 by 30 feet at the point where the road crosses the creek. In constructing a foundation for the bridge or culvert the company sank or placed in the creek at the point of crossing huge wooden timbers and stones, thereby preventing the deepening and enlarging of the creek by the commissioners, unless they removed such timber and stones; and if that be done the result will be the destruction of the bridge or culvert. The present channel or water way of the creek, under the bridge or culvert is 3 feet in depth and 12 feet in width. It is insufficient to allow the natural flow of water in the ditch or drain proposed to be constructed by the commissioners. The estimated cost of this ditch or open drain is $20,000. The present bridge across the creek does not exceed $8,000 in value, and a new bridge, conforming to the plan of the Commissioners, will cost not exceeding $13,000.

On the 24th of June, 1903, the drainage commissioners notified the railway company in writing that a bridge was necessary at the point where the company's right of way would be crossed or intersected by the proposed ditch; that it was necessary to enlarge the opening under the present bridge; that the proposed improvement was to be the water way of a combined system of drainage established in the vicinity under the charge and direction of the drainage commissioners of the district; that the mainditch of the drainage, where it will intersect the company's right of way, must be of the width of 23 feet and of the depth of 9 1/2 feet, the bridge constructed to be of the width of 23 feet in the clear at the surface or level of land, and to permit at least sixteen feet in the clear at the bottom of the ditch. The notice stated that the company was required, in pursuance of the statute in such case made and provided, to build and construct such bridge within thirty days from the date of the notice, in default whereof the commissioners would construct the same at the cost and expense of the company.

The company disregarded the notice and failed to build and construct the required bridge or culvert at the point of intersection with the creek, in accordance with the dimensions specified in the notice, and so as to permit such enlargement of the channel under the bridge as would be sufficient for the natural flow of water in the proposed ditch or drain.

The petition averred that a majority of the lands of the drainage district were swamp or slough lands, and in their present condition were not subject to cultivation, but by means of the proposed deepening and enlarging of Rob Roy creek, and as a result of the removal of the timbers and stones in the creek and the enlargement and deepening of the creek, all the lands in the drainage district would be 'greatly improved, and made good, tillable land, subject to cultivation;' that the proposed location of the ditch or drain along the creek was the best route or means for drainage of the district, constituting the only natural water course of the drainage district, and affording the only natural outlet or way of drainage of the lands to make them tillable; that if said improvement and enlargement of the ditch was made and the timbers and stones removed from the creek at the point of crossing, all of the lands of the district would be made good, tillabel lands for general farming purposes; and that the proposed construction of a ditch or drain along Rob Roy creek, when completed in accordance with said plans, would 'not divert or carry waters which by nature of force of gravity would flow or drain into any other natural water course in said drainage district or the vicinity thereof.'

The commissioners allege in their petition that the neglect, failure, and refusal of the railway company to remove the timbers and stones it had placed in the creek, and to construct and enlarge the opening under its bridge or culvert, had prevented them from completing the construction of the ditch or drain in accordance with the plans adopted by them; that it was necessary for the use and protection of the proposed drainage work that the opening underneath the bridge or culvert be constructed and enlarged in the manner indicated in order that the lands in the district might be drained in accordance with said plans; which plans 'are reasonable for the suitable and proper drainage of said district.'

The relief asked was a writ of mandamus commanding the railway company to forthwith enlarge, deepen, and widen the water way over and across the company's right of way across Rob Roy creek.

Messrs. Albert J. Hopkins, Robert Bruce Scott, and Chester M. Dawes for plaintiff in error.

[Argument of Counsel from pages 568-573 intentionally omitted]

Messrs. John K. Newhall and John M. Raymond for defendants in error.

[Argument of Counsel from pages 573-579 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court: 

Notes
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