Gilbert v. State of Illinois

LOUIS A. GILBERT

v.

THE STATE OF ILLINOIS.

Opinion filed December 12, 1890.

WATERS-claim for injury to lands caused by construction of dam by the State of Illinois. Court reviews evidence and holds that petitioner's claim is not supported by the evidence and claim is rejected.

The claimant in this case filed his petition on the 20th day of October, A. D. 1879, in which it is charged that the claimant is the legal owner of the lands described in the petition, one hundred and eighty to one hundred and ninety acres of which it is charged are damaged by the backing of the water of the Illinois river over said lands.

That in the month of October, A. D. 1877, a dam was constructed across said river near Copperas Creek under and by virtue of the authority of the State of Illinois.

That said dam lifts the water at or opposite the lands of the petitioner two to three feet higher than it would be but for said dam and at Copperas Creek six and onehalf feet higher than it was prior to the construction of said dam. That said river is subject to summer freshets raising said river two to three feet which without said dam were harmless to said lands but with said dam makes what before said dam was constructed would have been a freshet of from two to three feet now from four and one-half to six feet. The increase being wholly caused by the construction of said dam which filling the river backs the water over said lands which have thereby become water soaked and soft to such an extent that said lands will not bear animals and are well nigh worthless and the claimant demands $1,700.00 damages for the injury.

To this petition the Attorney General on behalf of the State of Illinois interposes three pleas: [*86] 1st. That the facts are insufficient to entitle the claimant to the relief sought. 2d. That said claim is barred by the statute of limitations. 3d. The general issue.

The Copperas Creek dam was constructed and was closed on the 22d day of October, A. D. 1877, and the petition in this case was filed with the Auditor on the 20th day of October, A. D. 1879, within two years after the completion of said dam. If there is any damage accruing to plaintiff on account of the construction of this dam such claim is not barred by the statute of limitations. But while we have no doubt that the claimant's lands are wet and incapable of producing such crops as do other lands more favorably situated we cannot see how the wet and boggy condition of these lands can be the result of the building of the Copperas Creek dam. The evidence is to the effect that these lands are one and one-half miles from the river and their wet and boggy condition is caused by the springs near the hills eighteen to twenty-four feet above low water mark.

We are of the opinion from a careful examination of all the evidence that claimant's lands have not been damaged by the back water from the river and we have therefore rejected this claim.