Concrete Walls and Crop Loss Claims: Defense Prevails in Drainage Dispute

This month’s column discusses the recent Fifth District Appellate Court decision in Brad Furlong and Beth Furlong v. Floyd Boxx and Vickie Boxx, affirming the judgment of the circuit court, denying Plaintiffs’ claim for damages and injunctive relief and finding that the defendants were not in violation of the Illinois Drainage Act and the common law on drainage. Furlong v. Boxx, 2023 IL App (5th) 220365.

Plaintiffs owned farmland on the west side of Stuber Road in Marion County, Illinois. Defendants’ property was located on the east side of Stuber Road. The natural drainage of water travels from the northeast corner of Plaintiffs’ property in an easternly/southeasterly direction. Id. The surface water then flows from the Plaintiffs’ property across Stuber Road easterly, across the Defendants’ property, and drains into Horse Creek. Id.

Plaintiff filed a two-count complaint seeking damages and injunctive relief. Plaintiffs’ complaint alleged that Defendants blocked the east side of a culvert that ran across Stuber Road; created an artificial berm on the east side of Stuber Road; threw rock, wood, debris, and concrete cylinders on the east side of the culvert at Stuber Road; and erected a wall made from concrete cylinders on the east side of Stuber Road. Id. Plaintiffs alleged that such actions caused flooding which destroyed crops. Accordingly, Plaintiffs sought damages for crop loss.

Defendants claimed Plaintiffs created a ditch, regraded Plaintiffs’ property and installed a culvert under Stuber Road, altering the terrain which caused an increased in the flow of water onto Defendants’ land. Among other defenses, Defendants argued that Plaintiffs’ claims were barred under the doctrine of unclean hands and the dictum that “he who seeks equity must do equity”. Id.

The matter was set for a bench trial, and the circuit court issued its written decision on May 16, 2022, finding that Plaintiffs failed to establish that Defendants had taken any action to block drainage under the Illinois Drainage Code or common law. Id. Additionally, Plaintiffs had failed to present sufficient evidence as to their right to an injunction. Id.

Illinois Drainage Code

According to section 2-1 of the Illinois Drainage Code:

“Land may be drained in the general course of natural drainage by either open or covered drains. When such a drain is entirely upon the land of the owner constructing the drain, he shall not be liable in damages therefor.” 70 ILCS 605/2-1 (West 2020).

Section 2-12 of the Illinois Drainage Code prohibits the interference with the natural flow of water and states:

“The landowner shall not wilfully and intentionally interfere with any ditches or natural drains which cross his land in such manner that such ditches or natural drains shall fill or become obstructed with any matter which shall materially impede or interfere with the flow of water. If the landowner violates the provisions of this Section he commits a petty offense. Each day’s violation shall be a separate offense. Provided, this Section does not apply to any ditches or drains which are entirely on the land of the landowner, nor does this Section prohibit the construction of artificial impoundments or the temporary interruption of the flow of water by such impoundments.” 70 ILCS 605/2-12 (West 2020).

The Illinois Drainage Code defines “ditch” as “an artificially constructed open drain or a natural drain which has been artificially improved.” 70 ILCS 605/1-2(c) (West 2020). The term “drain” includes ditch and is defined as “any water course or conduit, whether open, covered or enclosed, natural or artificial, or partly natural and partly artificial, by which waters coming or falling upon lands are carried away.” 70 ILCS 605/1-2(d) (West 2020).

Under the common law rule, “[w]here water from one tract of land falls naturally upon the land of another, the owner of the lower land must suffer the water to be discharged upon his land and has no right to stop or impede the natural flow of the surface water.” Gough v. Goble, 2 Ill. 2d 577, 580 (1954). The owner of the lower or servient land cannot obstruct the natural flow and throw it back upon the upper proprietor. Dessen v. Jones, 194 Ill. App. 3d 869, 876 (1990).

Permanent Injunction

In order for Plaintiffs to be entitled to a permanent injunction, they must establish:

(1) a clear and ascertainable right in need of protection,

(2) irreparable harm if injunctive relief is not granted, and

(3) no adequate remedy at law.

Sparks v. Gray, 334 Ill. App. 3d 390, 395 (2002).

Injunctive relief should only be granted where a plaintiff clearly establishes a right to relief. Bodenschatz v. Parrott, 153 Ill. App. 3d 1008, 1012 (1987). In Bossler v. Countryside Gardens, Inc., 44 Ill. App. 3d 423 (1976), evidence of a dam constructed on the servient land was not enough to establish that the dominant owner had a right to injunctive relief. Furlong v. Boxx, 2023 IL App (5th) 220365. The plaintiff’s land was at a higher elevation and there was no evidence of “passing back” of water onto the plaintiffs’ dominant land. Bossler, 44 Ill. App. 3d at 426. The circuit court may consider other causes of drainage issues. Bossler, 44 Ill. App. 3d at 426. Similarly, the plaintiffs here have not established a clear right to relief. Furlong v. Boxx, 2023 IL App (5th) 220365.

Even though Defendants had erected a wall of concrete cylinders near the culvert, Plaintiffs failed to present evidence that Defendants interfered with Plaintiffs’ drainage rights. Id. Plaintiffs’ property is higher in elevation, and the concrete cylinder wall is porous, allowing water to flow through and on to Defendants’ property. Additionally, Defendants’ wall is 23 feet from the edge of the road, where water does not back up onto Plaintiffs’ property. Id. Plaintiffs failed to present any evidence that the wall caused the water to back up on to Plaintiffs’ property, and Defendants, among other witnesses, testified that they had never seen water back up onto Plaintiffs’ property. Id.

Conclusion

When a question of fact is present, the Appellate Court looks to whether the judgment is against the manifest weight of the evidence. Vaughn v. City of Carbondale, 2016 IL 119181. For a determination to be against the manifest weight of the evidence, the opposite conclusion must clearly be evident.  Cunningham v. Schaeflein, 2012 IL App (1st) 120529. The circuit court is given deference to assess the credibility and conduct of the witnesses and parties as the finder of fact. Best v. Best, 223 Ill. 2d 34. The Appellate Court will substitute its judgment as to the credibility and weight of the evidence as determined by the circuit court. Id.

Here, the Appellate Court found that the circuit court was in the best position to assess the credibility of the witnesses and evidence presented. Based upon review of the record, there is no clear indication that Defendants caused water backup onto Plaintiffs’ property in violation of the Illinois Drainage Act or common law. Therefore, the circuit court’s decision was not against the manifest weight of the evidence, and the judgment of the circuit court of Marion County was affirmed by the Appellate Court  in favor of Defendants.