Gilbert v. State of Illinois

ELIZABETH GILBERT

v.

THE STATE OF ILLINOIS.

Opinion filed December 12, 1890.

WATER-damages caused by construction of dam. The court reviews evidence and finds that claimant's lands are not damaged by construction of dam in Illinois river by the State of Illinois.

The claimant filed her petition on the 20th day of October, 1879, setting forth that by authority of the State of Illinois a dam was constructed across the Illinois river at or near Copperas Creek; that the erection of said dam caused the water in the river opposite claimant's land to back up over her land and thereby to render it almost worthless, and that said lands will remain water soaked and almost worthless forever. The damage claimed is $880.

To this petition the statute of limitations and the general issue is interposed as a defense; and upon the petition, pleas, depositions and report of the surveyor, this cause is heard.

The evidence discloses the fact that on one tract of claimant's lands there is a creek running entirely through the tract; the head of the creek is found to be fifteen feet above the river at low water mark. The banks of this creek are low, and from this creek and not from the river the water spreads out over the claimant's land. The land is found by actual measurement to be from seventeen to twenty feet above old low water mark. We have no doubt but what these lands are becoming more thoroughly water soaked than they were in former years. Undoubtedly this condition would have existed had the dam never been erected. At all events the claimant's lands are found to be from ten to fourteen feet above that point where the dam ceases to have any effect on the river; and in the judgment of the Commission the claimant's lands are not damaged by the construction of the dam, and have therefore rejected this claim.