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decision in this case is, must the board of installments, to file a certificate in the court local improvements of a city comply with the where the assessment was confirmed, stating, provisions of said section 84 as amended, among other things, whether the improveby filing in the court where the assessment ment, as completed, conforms substantially was confirmed the certificate provided for to the requirements of the original ordinance therein to be filed, and there be a hearing up for the construction thereof, and to make an on said certificate, and the court enter an application to said court to consider and deorder that the improvement, as completed, termine whether or not the facts stated in conforms, in substance, to the improvement said certificate are true, and thereupon it ordinance, as a condition precedent to the becomes the duty of the court to fix a time right of the city to issue to the contractor and place for the hearing upon said applicathe improvement bonds provided to be issued tion. Notice is required to be given of such in payment of a local improvement where hearing, objections may be filed, and the the assessment is divided into installments, certificate of the board of local improvements in cases where, as here, the contractor has is made prima facie evidence of the truth agreed to accept said improvement bonds in of the facts stated therein. If, on the hearpayment of the work, or may such improve ing, the court finds that the improvement is ment bonds rightfully be issued to the con constructed in substantial accordance with tractor upon the acceptance of the work by the ordinance, the acceptance thereof by the the board of local improvements and without board of local improvements is approved. If the filing of said certificate by said board it finds the improvement has not been conand the entry of such order by said court? structed in substantial accordance with the

The law is well settled that before a party ordinance, it is then made the duty of the will be coerced by a writ of mandamus to board of local improvements to procure the perform an act it must clearly appear from completion of the improvement in substantial the petition that it is his clear legal duty to accordance with the improvement ordinance, perform such act, and if a clear legal duty to and the board may from time to time file perform the act sought to be coerced does additional and supplemental applications or not rest upon the party sought to be coerced, petitions in respect thereto, until the court the court will not grant the writ. It was shall be satisfied that the improvement is therefore essential the petitioner should show constructed in substantial accordance with by his petition that it was the legal duty of the ordinance; and if, before the entry of the appellees to issue said improvement such final order, there shall have been issued bonds at the time he filed his petition, and if to the contractor, in the progress of the work, any step or steps in the court where said as

any improvement bonds to apply on the consessment was confirmed was necessary to tract price thereof, said contractor, or the be taken as a condition precedent to the right then owner or holder thereof, shall be entiof said appellees to issue said bonds which tled to receive in lieu thereof new bonds of had not been taken at the time the petition equal amount, dated and issued after the for mandamus was filed, then the appellant entry of said order. was not entitled to the relief prayed for and By the passage of this amendment we the petition was properly dismissed.

think it clear the powers conferred upon Section 83 of the local improvement act, boards of local improvements by section 83, standing alone, undoubtedly authorizes the whereby such boards were given power to board of local improvements to determine finally determine whether a local improvewhether a local improvement has been con ment had been constructed substantially in structed substantially in accordance with the accordance with the improvement ordinance provisions of the improvement ordinance, and to accept the improvement, and thereby and if such board decides it has been so con bind the city and the property owner, was structed and accepts the improvement, such taken away and conferred upon the court acceptance is conclusive in the proceeding to wherein the assessment was confirmed, and make the assessment, and in all proceedings that the city or property owner is not conto collect the same or the installments there cluded upon that question by the action of of, on all persons and property assessed the board of local improvements, and is only therefor, and that the work has been per concluded by the action of the court where formed substantially according to the re the assessment was confirmed, which action, quirements of the improvement ordinance. when had in that court, becomes res judiThis section was in full force prior to the cata of the question in all subsequent propassage of the amendment of 1903 to section ceedings to collect the assessment. People 84, and under the law as it then was it v. Cohen, 219 Ill. 200, 76 N. E. 388. If the would have been the duty of the city, upon action of the board of local improvements the acceptance of the work by the board of in accepting an improvement is not conclulocal improvements, to issue improvement sive on the city and property owner that an bonds in payment thereof. By the amend improvement has been completed in subment to section 84 boards of local improve stantial compliance with the terms of the ments in cities are required, within 30 days improvement ordinance, but they have the after the completion and acceptance of any right to submit that question to the court in work, in case the assessment is divided into which the assessment was confirmed, it

would seem apparent the city ought not to ment bonds. This case comes here through be required to issue improvement bonds in the Appellate Court. The Appellate Court payment of an improvement until it had did not have the power to determine the been judicially determined, in the manner question of the constitutionality of said secpointed out in the statute, that the improve. | tion as amended, and by coming to this ment constructed was substantially the im court through that court and by assigning provement provided for in the ordinance, errors in that court which it did have as otherwise the city might be required to jurisdiction to hear and determine, the apissue improvement bonds to pay for an im pellant waived his right to raise in this provement not provided for by the improve court the constitutionality of said section 84, ment ordinance, and one which the court as amended. The question of the constimight eventually refuse to permit the board tutionality of said section, as amended, is of local improvements to accept and which not therefore here presented for decision.

Indiana Millers' Mutual Fire Ins. Co. v. ments to have completed in accordance with People, 170 Ill. 474, 49 N. E. 364; Robson v. the ordinance. We think the amendment Doyle, 191 Ill. 566, 61 N. E. 435. to section 84 was passed mainly to prevent Finding no reversible error in this record, a local improvement not constructed sub the judgment of the Appellate Court will be stantially in accordance with the improve

affirmed. ment ordinance being foisted upon property Judgment affirmed. owners by the action of the board of local improvements, and was intended to afford the property owner, as well as the city, a

(222 Ill. 88)

DANLEY et al. v. HIBBARD. speedy and summary hearing on that question before the tribunal wherein the assess (Supreme Court of Illinois. June 14, 1906.) ment was confirmed, before the property 1. JUDGMENT-MOTION IN ARREST-DEFECTS IN owner should be required to pay his assess

PLEADING.

On a motion in arrest of judgment for inment or the city to issue improvement

sufficiency of a declaration, every intendment bonds in payment thereof.

is indulged in favor of the declaration, and if In Gage v. People, 219 Ill. 634, 76 N. E.

it contains terms sufficiently general to com834, it was held a special assessment is not

prehend any matter necessary to be proved, and

without proof of which the jury could not have delinquent until after a certificate of the

given the verdict, the want of an express avercost of the improvement has been filed in ment in the declaration is cured by the verdict. the court where the assessment was con [Ed. Note.-For cases in point, see vol. 30, firmed, by the board of local improvements,

Cent. Dig. Judgment, $$ 468–480.] as required by section 84 of the local im

2. INTOXICATING LIQUORS-SALE-INJURY TO provement act, and an application for judg

THIRD PERSON-RIGHT TO RECOVER FROM

SELLER. ment of sale made before such certificate of

Hurd's Rev. St. 1899, c. 43, § 9, gives cost is filed cannot be maintained. In that a right of action to every person injured in case it was said the provision of section 81

person, property, or means of support in conrequiring the cost of the improvement to be

sequence of intoxication, habitual or otherwise,

of any person. Hurd's Rev. St. 1899, c. 107, certified in writing to the court in which § 1, declares that every poor person unable to said assessment was confirmed was manda earn a livelihood shall be supported by the tory, and we see no reason why the holding

father, grandfather, mother, grandmother, chilshould not be the same with reference to

dren, etc., if they, or either of them, be of

sufficient ability, provided that, when any perthe provision of that section which requires sons become paupers from intemperance, they the certificate to state whether or not the

shall not be entitled to support from any reimprovement conforms substantially to the

lation, except parent or child. A son who was

unable to support himself because of his inrequirements of the original ordinance, and toxication was supported by his mother. Held a hearing had thereon, before the improve that, without regard to whether the son had ment bonds should be issued to pay for the

an enforceable right of action against the mother improvement. We are

for support, her obligation to support him was therefore of the

a legal one, and money expended for his supopinion the city was not required, at the port was not a gratuity, but a payment in distime the petition for mandamus was filed, charge of her legal obligation, for which she by reason of the failure of the board of local

entitled to recover from the dramshop

keeper who sold the son the liquor. improvements to comply with said section

3. JUDGMENT—MOTION IN ARREST-GROUNDS. 84, as amenued, to issue said bonds to the In considering a motion in arrest of judgappellant.

ment, the court does not look into the evidence. It is urged, however, that section 84 of

[Ed. Note.-For cases in point, see vol. 30, the local improvement act, as amended in

Cent. Dig. Judgment, § 495.] 1903, is unconstitutional and void, and that

4. INTOXICATING LIQUORS-SALE-INJURY TO section 83 is still in force in all its terms,

THIRD PERSON – SUPPORT OF INTOXICATED

SON-ABILITY TO SUPPORT. and that the appellant was not bound to In an action under Hurd's Rev. St. 1899, show in his petition a compliance with the C. 43, § 9, against a dramshop keeper for damprovisions of said section 84, as amended,

ages sustained by plaintiff through being com

pelled to support her son, who by intoxication as a condition precedent to the legal duty

was rendered incapable of supporting himself, of said city to issue to him said improve an allegation that plaintiff did furnish support

was

was sufficient after verdict for plaintiff, as an of supporting him, in the performance of allegation that she was able to furnish such which duty she expended her own means and support.

property. The trial court overruled defend5. SAME EVIDENCE.

ants' motion in arrest of judgment, and error In an action under Hurd's Rev. St. 1899, c. 43, § 9, for damages sustained by plaintiff

is assigned upon the ruling. There had been for being compelled to support a son who was a demurrer to the declaration, which was incapable through drunkenness to support him

overruled, after which a plea of the general self, evidence that the son was a habitual drunkard during the lifetime of plaintiff's hus

issue was filed, and the motion raised the band held immaterial.

question whether any count of the declaration 6. TRIAL-INSTRUCTIONS-ABSTRACT INSTRUC stated a cause of action. TIONS,

It is contended that no cause of action was In an action under Hurd's Rev. St. 1899. c. 43, § 9, for damages to plaintiff through be

stated for two reasons: First, because, the ing compelled to support à son, who was in

support furnished by the plaintiff was a gracapable because of drunkenness of supporting tuity, or, at most, the performance of a mere himself, an instruction consisting merely of a moral obligation; and, second, that there copy of the statute under which an action was brought was not objectionable as abstract and

was no allegation that the plaintiff was of misleading

sufficient ability to support her son. In con7. INTOXICATING LIQUORS CIVIL DAMAGE sidering these questions every intendment LAW-RESPONSIBILITY OF SELLER.

will be indulged in favor of the declaration, In an acion under Hurd's Rev. St. 1899, c. 43, § 9, for damages sustained by plaintiff

and if it contains terms sufficiently general to through being compelled to support a son, who,

comprehend, by fair and reasonable intendbecause of drunkenness, was incapable of sup ment, any matter necessary to be proved, and porting himself, an instruction, predicating de

without proof of which the jury could not fendant's liability upon their having materially contributed or assisted in producing such in

have given the verdict, the want of an extoxication, was not objectionable as permitting press averment in the declaration has been a verdict against defendant for having assisted cured by the verdict. Chicago & Alton in any degree, however slight, in producing the

Railroad Co. v. Clausen, 173 Ill. 100, 50 N. intoxication. 8. SAME-FAULT OF PLAINTIFF.

E. 680. In an action under Hurd's Rev. St. 1899, The statute gives a right of action to every c. 43, § 9, for damages sustained by plaintiff husband, wife, child, grandchild, employer, from being compelled to support a son, who, because of drunkenness, was incapable of sup

or other person sustaining a similar relation, porting himself, evidence that, on two or three

who shall be injured in person or property or occasions a long time before the action was com means of support in consequence of the intoxmenced, plaintiff gave her son 10 cents to get ication, habitual or otherwise, of any person. some beer and bring it to the house, which

It is conceded that the statute is broad she testified was for the purpose of keeping him out of the saloons, was insufficient to re

enough to include a child and parent, but the quire the giving of an instruction that plain argument is that the right of action is only tiff could not recover if she materially con

in favor of one who, under the facts and cirtributed to the son's condition.

cumstances as they exist at the time, has a 9. SAME-DAMAGES. Where, in an action under Hurd's Rev. St.

legal right in actual enjoyment, which has 1899, c. 43, $ 9, for injuries sustained by plain been injured in consequence of the intoxicatiff through being compelled to support a son, tion. The proposition as stated is that this who, because of drunkenness, was unable to sup

action will not lie because the son, Robert port himself, there was no claim for damages for care of the son, and no evidence relative to sucn

W. Hibbard, had no right to bring a suit to a claim, it was not necessary to caution the jury enforce the enjoyment of his right to support against allowing damages for care.

by his mother. If the argument were sound Appeal from Appellate Court, Third Dis

it could not be applied to this suit, which was trict.

brought by the mother for damages resulting Action by Mittie Hibbard against Henry

from the performance of her duty. She, and Danley and others. From a judgment of the

not the son, was the person injured, and the Appellate Court, afirming a judgment for

injury resulted from imposing upon her the plaintiff, defendants appeal. Affirmed. performance of a duty which otherwise

would not have existed. If she performed Plantz & Lamet, for appellants. Charles

her statutory duty, the question whether her J. Scofield, for appellee.

son would have had a right of action against

her if she had failed to perform it is imCARTWRIGHT, J. The Appellate Court material. Even reversing the situation, a for the Third District affirmed a judgment wife living with her husband, or a child, canfor $1,000 and costs recovered by appellee, not bring a suit against the husband or father against appellants, in the circuit court of for a failure to furnish proper sunport, but Hancock county, in a suit for damages under it would not be thought that such wife or section 9 of the dramshop act (Hurd's Rev. child could not maintain an action under this St. 1899, C. 43), caused by the selling and statute. The second count charged that Robgiving of intoxicating liquors to appellee's ert W. Hibbard was a poor person, unable adult son, Robert W. Hibbard, resulting in to earn a livelihood because of his intoxicahis habitual intoxication and pauperism and tion caused by defendants; that he was unimposing upon the appellee the statutory duty married, and had no child or children; that

his father had died; that he was living with her own home and having a small sum of his mother, the plaintiff; and that by reason money and no other property, which sum of of the statute she was required to support money she used in the support of her son; him as a poor person. Section 1 of the act to but that averment does not show that she revise the law in relation to paupers is as was unable to furnish the support. The follows: "That every poor person who shall second count stated a cause of action, and be unable to earn a livelihood in consequence the court did not err in overruling the of any bodily infirmity, idiocy, lunacy, or motion. other unavoidable cause, shall be supported It is next contended that the court erred by the father, grandfather, mother, grand- in limiting the cross-examination of witnessmother, children, grandchildren, brothers or es for the plaintiff and refusing to admit evisisters of such poor person, if they, or dence offered on behalf of the defendants. either of them, be of sufficient ability: Pro The plaintiff sought, by her declaration, to vided, that when any persons became paupers recover for injuries resulting from being comfrom intemperance, or other bad conduct, pelled to support her son after the death of they shall not be entitled to support from any his father, and the testimony in her behalf relation, except parent or child." Hurd's was confined to that period and to such supRev. St. 1899, p. 1259, c. 107. The children port. On cross-examination of her witnesses, are to be first called upon, if there be any and also in making their defense, the defendchildren of sufficient ability, and, if there be ants attempted to prove that the son was no children of sufficient ability, the parents an habitual drunkard before his father died, are next called on, if they are of sufficient and the court rejected the evidence. In this ability. A duty is imposed by the statute we think the court was right. A condition which is not a moral obligation but a legal of intoxication, although habitual, is not perone, and its performance cannot be said to manent, and is only continued by a renewed be a voluntary or gratuitous one.

indulgence in intoxicating liquors. Proof It is urged that the motion ought to have that the son was an habitual drunkard in the been sustained because the evidence introdu lifetime of his father would not meet the ced on the trial showed that Robert Hibbard charge that he was kept in that condition, resided with his father and mother up to and in a condition of pauperism, by liquor the time of the death of his father, and con furnished him after his father's death. It is tinued to reside with the plaintiff, his mother, urged that the evidence would tend to reduce thereafter, without any agreement as to how damages, but we cannot see how that could they should live, and it is argued that, in the be, since the son would cease to be an habitabsence of any express promise on the part of ual drunkard as soon as he ceased to drink lieither to pay for services or to recompense quor. The fact sought to be proved was not the other for support, there could be no re relevant to the issue. covery by either against the other for sup It is next contended that the court erred port, and any support furnished by plaintiff in giving instructions on behalf of the plainwas a gratuity. This argument results from tiff. The third is objected to as being aba misapprehension of the scope of the motion. stract in form, and because as to part of it In considering a motion in arrest of judg there was no evidence. It is not error to give ment the court does not look into the evi an instruction abstract in form where it will dence. A motion for a new trial is based not mislead the jury, and this instruction was upon the evidence, instructions, and rulings merely a copy of the section of the statute of the court, which can only be made a under which the action was brought. It is part of the record by a bill of exceptions, not error to advise a jury as to the law in the while a motion in arrest of judgment is based language of the statute. Kellyville Coal Co. upon the record proner. Wallace & Holines v. Strine, 217 Ill. 516, 75 N. E. 375. While v. Curtiss, 36 Ill. 156. The facts set forth the section includes other injuries than the in the second count relate to a legal obliga one sued for, the jury could not have been tion.

mislead by the instruction to the injury of The other objection is that the declaration the defendants. does not show that the plaintiff was of suf It is urged that the sixth instruction left ficient ability to support her son. While the the jury at liberty to find the defendants second count does not aver, in terms, that guilty if they assisted, in any degree whatshe was of sufficient ability to support him, ever, in producing the intoxication of Robert it alleges that she did support him out of Hibbard. The liability stated was in case her own property, and in so doing paid out they "materially contributed or assisted in and expended the sum of $1,000. Inasmuch producing such intoxication." We think the as she could not have supported him out of jury would understand the instruction as re. her own property unless she had sufficient quiring proof that the defendants materially ability to do so, the averment includes, by assisted in producing the intoxication, and fair and reasonable intendment, the fact not that they were guilty if they assisted in that she was of sufficient ability, and it is some imperceptible degree in producing it. good after verdict. It is true that the count We have already answered the objection says plaintiff was of limited means, owning to the seventh instruction, which is that it did

not include the condition of Robert Hibbard ed, and took place with the knowledge and acprior to the death of his father.

quiescence of the landowner. Objection is made to the ninth instruction

[Ed. Note.For cases in point, see vol. 48, on the ground that it allowed the jury to as

Cent. Dig. Waters and Water Courses, § 212.]

2. SAME-EVIDENCE. sess exemplary damages. The plaintiff went

Prior to 1884, defendants' land had been to the three saloons of defendants and no flooded by the surplus waters of a stream but tified them not to sell intoxicating liquors to three times in 24 years, and in 1891, when for her son. In two cases the notice was given

the first time defendants' lands were seriously to the defendants themselves, and in another

affected by the overflow brought about by a cer

tain cut, the filling up of an old ditch, and the it was given to a brother of the owner, who construction of certain levees, they sought to was in charge of the saloon at the time. The protect their lands by building a levee which evidence was prima facie sufficient to charge

they sought to repair when they were enjoined

from so doing. There was no evidence that dethe owner with notice, and it was not over fendants had at any time voluntarily consented come by any evidence that he did not receive that their lands should bear such overflow. it. The defendants gave no heed to the no

Held, that complainant, an adjoining proprietor tices, but continued to sell liquor to plaintiff's

had acquired no prescriptive easement to have

the flood waters of the stream flow over deSon. There was evidence of actual damages fendants' lands. and also evidence which justified the instruc 3. SAME-WATER COURSE-DRAINAGE-SUFFItion.

CIENCY.

In an action to restrain the construction of Finally, it is urged that the court erred in

certain dikes, evidence held to sustain a finding refusing instructions asked by the defendants. that certain sloughs on defendants' land which The court did not err in refusing the third constituted a natural water course had sufficiinstruction, telling the jury that they could

ent capacity to carry off the water intended to

be turned into the same by defendants' works. not allow exemplary damages. We have al

4. SAME-RIGHTS OF LANDOWNERS. ready said that there was evidence of actual Where the waters of a stream had been damage and evidence which would authorize diverted from their natural channel and illegalexemplary damages. The fifth instruction ly cast onto defendants' lands, they were entitled

to repel the same by the construction of proper stated that plaintiff was not compelled, under

levees in such a manner as to discharge such the law, to support her son after he became waters into a slough on their own land as 21 years of age, and, if she did so, she did it against the rights of adjoining proprietors. voluntarily. As applied to this case, it was

Appeal from Appellate Court, Third Disnot the law. The first and sixth instructions trict. were designed to advise the jury that plain

Bill by William R. Wills against Thomas tiff could not recover if she materially con

Babb and others. From a decree in favor of tributed to the condition of habitual intoxica

defendants, affirmed by the Appellate Court, tion of her son, and they were properly re plaintiff appeals. Affirmed. fused for want of evidence to which they

Matthews & Anderson and Jefferson Orr, could have been applied. There was evi

for appellant. Williams & Williams, Edward dence that on two or three occasions, a long time before the suit was brought, plaintiff Doocy and Paul F. Grote, for appellees. gave her son 10 cents to get some beer and

HAND, J. This was a bill in chancery filbring to the house, which she said was for

ed by the appellant, William R. Wills, on the purpose of keeping him out of the saloons.

October 25, 1903, against the appellees, ThomThe evidence was too trifling in character

as Babb and Claib L. Cook and others, in the to justify a finding by the jury that she mate

circuit court of Pike county, for an injuncrially contributed to his habitual intoxication

tion restraining said Babb and Cook from confor a period of several years. It was not nec

structing a new and repairing an old levee essary to caution the jury against allowing

along a portion of the east line of sections 3 damages for the care of an intoxicated per

and 10, in township 5 S., range 7 W., Pike son, since there was no claim or evidence of

county, Ill. Answers and replications were that kind, and the seventh instruction was

filed, and a trial was had in open court and properly refused for that reason.

a decree was entered dismissing the bill for The judgment of the Appellate Court is af

want of equity, which decree has been affirmfirmed.

ed by the Appellate Court for the Third DisJudgment affirmed.

trict, and a further appeal has been prosecuted to this court.

It appears from the pleadings and proofs

that the appellant in the year 1902, purchas(222 Ill. 95)

ed, and at the time he filed his bill was the WILLS v. BABB et al.

owner of record of, the south half of section (Supreme Court of Illinois. June 14, 1906.)

14 and the north 100 acres of the northwest 1. WATERS AND WATER COURSES-FLOOD WA quarter and the north half of the northeast TERS--FLOWAGE-PRESCRIPTIVE RIGHT.

quarter of section 23, in said township, and A prospective right to flood the lands of

that Babb acquired the title to the north another can only arise where the lands have been flooded for a period of 20 years or more, and half and the southeast quarter of section 10, where the flooding was adverse and uninterrupt- | and Cook the title to the south half of sec

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