Babb v. State of Illinois

ELIZA A. BABB, ET AL. v.

THE STATE OF ILLINOIS.

Opinion filed December 12, 1890.

STATUTE OF LIMITATIONS-petition filed within two years; claim not barred. Where petition is filed within two years after closing of dam alleged to have caused damage to property of claimant, claim is not barred by statute of limitations.

The claimants, Eliza A. Babb and Estella J. Babb, filed their petition herein on the 20th day of October, A. D. 1879, in which they claim that they were before and since the 20th day of October, 1877, the legal owners of the lands described in their petition. That said lands are situated in the bottoms and low lands bordering upon the Illinois river. That during the months from May to October inclusive in each year said river is usually at or near low water mark and that during that time said lands were formerly left dry yielding large crops annually. That under and by virtue of the [*97] authority of the State of Illinois in the month of October, A. D. 1877, a dam was constructed across said river near Coppers Creek. That by reason of the construction of said dam the water in said river is pilling and backing up so that said lands have become water soaked and worthless and will so continue forever whereby claimants have been damaged to the amount of four hundred and fifteen dollars.

To this claim the Attorney General files a plea interposing the statute of limitations and the general issue.

Upon the petition, pleas and depositions filed in this case together with the general depositions this cause is heard.

The dam was closed October 22, 1877, and the petition in this case was filed within two years thereafter and hence the claim is not barred by the statute of limitations.

After a careful examination of the evidence in this case the Commission is of the opinion that the claimants have been damaged to the amount of one hundred dollars ($100.00) in the tract in section twenty-three and that such damages are caused by the backing of the water of the Illinois river upon said lands since the construction of the Coppers Creek dam.

The northeast quarter of the northwest quarter of section 14, township 29, north range 3 west, we find to be at its lowest point fifteen feet above and at its highest point twenty-seven feet above original low water mark. The Commission is unable to see how the construction of the Coppers Creek dam could injure this tract.

We fix the damages of these claimants at one hundred dollars.