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tion 3 in said township, in the year 1902, and doned by the commissioners, and the waters were the owners thereof, respectively, at the from Hadley creek, which left its bed at the time the bill was filed. All of said lands Caffrey bend and flowed down through the are low, bottom lands, lying west of the bluffs Caffrey cut, were permitted to flow out unon the east and the Mississippi river on the obstructed and to spread out over section 11 west, and are included within the boundaries and the adjoining lands, and to reach the Sny of the Sny Island levee drainage district. through Jack slough, the Elm flats and Grubb Said township is crossed at the northeast cor slough, and finally the Mississippi river. So ner thereof by the right of way of the Chica soon as the waters of Hadley creek commengo, Burlington & Quincy Railroad Company, ced to flow through Caffrey's cut, old Hadley and at that point, from time immemorial, creek commenced to fill up, and parties owna water course known as Hadley creek, which ing lands immediately west of old Hadley has a large water shed, has flowed from the creek soon thereafter commenced to construct bluffs into the low lands of the township bor levees along the north and west sides of their dering the Mississippi river. Its course, after lands, witi a view to force the waters flowing leaving the high land, is west of south, and thereon southwest, and off of their lands. originally it flowed across the east half of sec Levees were constructed by Miller on the tion 1, the west half of section 12, the north south of Caffrey's cut on section 1, by Likes half of section 14, the west half of section 14, on the north and west sides of the northwest and the northwest quarter of section 23, quarter of section 12 and by Atkinson across where it emptied into the Sny, and thence the south half of section 11. The effect of the found an outlet into the Mississippi river. change in the course of the water-flow of HadAt a point southwest of where the creek

ley creek caused by the opening of the Cafcrosses said railroad right of way, it bends frey cut, the filling up of the old channel and abruptly to the south, and as early as 1860, the construction of the Miller, Likes, and Atin case of high water, the creek broke over kinson levees was to throw the water which its west bank at that point and its waters formerly had flowed in old Hadley creek upon flooded the lands west of its main channel on the lands now owned by Babb and Cook, section 1, which overflow waters found an and in 1891, to protect those lands from overoutlet to the south into the Sny through Jack flow, the then owners of said lands built a slough, Grubb slough, and Elm flats. In levee along the east line of the southeast 1860 one Caffrey purchased the northeast quarter of section 3 and the northeast quarquarter of section 1, and soon thereafter con ter of section 10, about three-quarters of a structed a levee upon his land along the west mile in length. That levee, at the time Babb bank of Hadley creek at the bend, to prevent and Cook purchased their lands, had been the waters overflowing the banks of the creek carried away, in part, by high water, and at at that point. The Caffrey levee gave way in the time the bill was filed in this case they 1869 and again in 1875, but was repaired at were engaged in repairing that levee and in each of those times. In 1883 that levee gave extending it south along the east line of the way for a third time, and about that time a

north half of the southeast quarter of section drainage district, known as the Boyd drain

10 to near the north bank of Grubb slough. age district, was organized, which comprised | A public highway runs along the east line of lands lying east of Hadley creek. The com appellees' lands between sections 2 and 3 and missioners of that district determined to

10 and 11, and the levee repaired and built is straighten Hadley creek by conveying its wa upon the west side of that public highway ters from the bend upon Caffrey's land in the and is wholly upon the lands of appellees, northeast quarter of section 1, in substantially and when completed it will be approximately a straight line southwesterly across the four feet high and a mile and a quarter long, southwest quarter of section 1, the northeast

and has a ditch upon each side thereof, the quarter and the southwest quarter of sec east ditch being constructed in the public tion 11, and emptying them into Jack slough, | highway with the consent of the highway on the northeast quarter of section 15. To commissioners of said township. The avowcarry out that project, in November, 1883, the ed object of the appellees in repairing the commissioners purchased of Caffrey a strip of old levee and in constructing the new levee land 200 feet wide, lying southwesterly from is to force the water of Hadley creek south the bend in the creek on his land, and during and off of their lands into Grubb slough, Elm the year 1884 constructed what is known as flats, and Jack slough, and the complaint the “Caffrey cut,” which cut runs from the made by appellant against the old levee being bend in the creek on Caffrey's land to the repaired and extended further south is that north line of the northeast quarter of section it will force the waters of Hadley creek 11. When the commissioners reached the which he claims now rightfully flow over the

north line of section 11 with the cut, the appellees” lands and away from his lands,

owner of the lands in that section protested east and south and upon his lands, whereby against the cut being extended across his his lands will be inundated and destroyed for lands, and the enterprise of carrying the wa agricultural purposes; the result of which ters of Hadley creek through that cut into will be to inflict upon him an irreparable inJack slough by extending said cut was aban- / jury. The following plat will assist some.

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If the appellant has the right to have the waters of Hadley creek flow over the lands of the appellees, and his own lands to be relieved from such overflow, it must arise as a prescriptive right, owing to the fact that said waters have continued to flow over the appellees' lands for a sufficient period to ripen into such right, during which time the appellant's lands have been relieved from the burden of such overflow. The question, therefore, arises, does the evidence establish such prescriptive rights? Formerly the waters of said creek did not flow over the appellees' lands, but the natural channel of the creek was east of the lands of appellees and in part upon the lands now owned by appellant. In about the year 1860 the Caffrey levee was put in west of the bend on section 1, and the waters of the creek were confined thereby to the channel at that point until 1869, when the levee gave way. The levee was, however, rebuilt, and the water did not again overflow at that point until 1875, when the levee again gave way. It was, however, rebuilt and remained intact until 1883, when it was carried away for a third time, and was not rebuilt. Clearly, up to the year 1883 no prescriptive right arose, as against appellees or their grantors, to have water overflow the banks of the creek at the bend on section 1 and pass over the lands now owned by appellees, as the party who owned the land immediately adjoining the bend prior to that time resisted successfully the overflow at that point by constructing a levee to confine the stream to its banks, which

levee, when carried away, was reconstructed. Nei her does the evidence show that the overflow at the bend at any time prior to 1883, passed over the land now owned by appellees, but the evidence shows, up to the time the old channel filled up, which was not until four or five years after the construction of the Caffrey cut in 1881, the overflow waters of IIadley creek did not ordinarily overflow the lands located on sections 3 and 10 north of Grubb slough, but that such waters flowed down over section 11 and passed off through Jack slough, Elm flats, and Grubb slough, and subsequent to the overflow of 1883 there was no claim of right made to change the course of Hadley creek until the strip was purchased of Caffrey, in November, 1883, and even after the cut was made, in 1884, it does not appear that any of the waters going through the cut reached the lands now owned by appellees, except in high freshets, until the old creek filled up. In 1891 the owners of sections 3 and 10 took steps to protect their lands from the overflow caused by making the Caffrey cut, the filling up of the old creek and the construction of the Miller, Likes and Atkinson levecs, by constructing the levee which the appellees now seek to repair.

The law is well settled that before a prescriptive right to flood the lands of another can be sustained, it must appear (1) that the lands have been flooded for a period of 20 years or more; (2) that the flooding was adverse and uninterrupted; and (3) that the flooding took place with the knowledge and acquiescence of the landowner. Chicago & Northwestern Railway Co. v. Hoag, 90 Ill. 339. In Smith v. Miller, 11 Gray (Mass.) 145, it is said that, in order to make the use of the easement in another's land for 20 years conclusive of the right, the use must be adverse, uninterrupted, and with the knowledge and acquiescence of the land owner, and that each of these qualities or ingredients essential to the maintenance of the claim is open to contradiction and liable to be disproved. In Warren v. Town of Jacksonville, 15 Ill. 236, 58 Am. Dec. 610, this court said a right by prescription cannot be raised against the consent of the owner, but the use may be so long unobjected to as to authorize the finding of an implied consent, and to raise a presumption of consent, and even of a grant. And in Nichols v. Aylor, 7 Leiga (Va.) 516, where, though one had flooded another's land for more than 20 years, it appeared that the latter had complained thereof and denied the right so to do, it was held that it rebutted the presumption of its having been enjoyed under a grant. In Chicago & Northwestern Railway Co. v. Iloag, supra, a railroad company claimed the prescriptive right to flow waste water from its tank over the premises of another, and had exercised that right for more than 20 years. Within the period of 20 years complaint was made to the depot agent. The

court says (page 350 of 90 Ill.): "The complaints of this use of the lot, in flowing water upon it,

made

to the depot agent, sufficiently disproves acquiescence in such user, and thereby an essential element of a right to an easement by adverse use was shown not to exist."

Here it would seem at least two of the essential ingredients necessary to establish a prescriptive right to flood the lands of the appellees were not established by the evidence: First, it does not appear that the lands of the appellees had been flooded unin. terruptedly for a period of 20 years, as, at most, up to 1884 they had only been flooded three times in 24 years; and secondly, the flooding was not with the consent or acquiescence of the appellees or their grantors, as the owners of the land in 1891, when it appeared for the first time that their lands were seriously affected by the overflow brought about by the Caffrey cut, the filling up of the old ditch and the construction of the levees by Miller, Likes, and Atkinson, sought to protect their lands from such overflow by building the levee which the appellees sought to repair when they were enjoined from so doing, and that in 1903, and within 20 years after the construction of the Caffrey cut, the appellees sought to repair the levee constructed in 1891, and to extend the same south to Grubb slough; thereby showing that the owners of the land in 1891, as well as the appellees in 1903, did not consent to the waters of Hadley creek being thrown upon their lands. From a consideration of all the evidence found in this record, we think it clear that the appellant failed to show that, as against the appellees, he had a prescriptive right to have the waters of Hadley creek cast upon the lands of the appellees and his lands relieved from the burden of the waters of said creek.

The old leree sought to be repaired and the new levee proposed to be erected, and the ditches upon either side thereof, are all located upon the lands of the appellees, and they insist that under the doctrine announced in Daum v. Cooper, 208 Ill. 391, 70 N. E. 339, and Fenton & Thompson Railroad Co. v. Adams, 221 Ill. 201, 77 N. E. 531, as the levees and ditches proposed to be repaired and constructed by them are all upon their own lands, and they convey all the overflow water which they retard by the construction of said levees and ditches, into Grubb slough upon their own lands, which is a natural water course, they are clearly within their well-defined legal rights in repairing said old levee, and in extending the new levee south to the north bank of Grubb slough. The appellant recognizes the doctrine announced in the Daum Case as sound, but contends it should not be applied to the case at bar, as he insists that Grubb slough is of such inferior size, as compared to Hadley creek, that it will not carry the waters proposed to be turned into it by the erection of

said levees, but its banks will immediately overflow, and that the appellees, by the construction of said levees, are, in effect, collecting the overflow waters of Hadley creek upon their lands and throwing them upon the lands of appellant. The questions of the size of Grubb slough and its capacity to carry the waters of Hadley creek were quiestions of fact, and from a careful examination of the evidence found in the record we are not satisfied that the capacity of Grubb slough, in connection with Jack slough and Elm.flats, is not sufficient to carry the waters which will be diverted from appellees' lands by the levees proposed to be repaired and constructed thereon. The fall from the mouth of Caffrey's cut to the head of Grubb slough is a number of feet, and the land between the south end of the proposed new levee and the northwest corner of appellant's lands is low and slopes from both ways towards Grubb slough, and a vast amount of water will pass down over the three-quarters of a mile intervening between the appellant's land and the end of the new levee, in the case of a freshet, before it will be thrown upon appellant's lands. A large number of witnesses upon the hearing gave their opinions as to the effect the repair and construction of said levees would have upon the waters passing through the territory between the mouth of Caffrey's cut and the Sny and between the south end of the new levee and appellant's land. The witnesses of the appellant generally were of the opinion the effect of constructing the new levee and repairing the old would be to flood appellant's land in case of heavy rains, while those for the appellees were of the opinion the construction and repair of these levees would have no appreciable effect upon the flow of water with reference to appellant's land, ex. cept in case of very high water, when the entire bottom would be flooded. The chancellor appears to have taken the view of the appellees' witnesses, and as he heard and saw the witnesses, and by reason of those facts his advantages were superior to ours in arriving at the correct conclusion to be drawn from their testimony upon that point, we are not disposed to disagree with his finding.

From the view, however, we take of this case, the finding of the chancellor upon the question whether or not the repair and construction of said levees will materially affect the flow of water upon the land of appellant is not material, as we think it clear the waters of Hadley creek have been diverted from their natural channel by the Caffrey cut, the filling up of the old creek and the construction of the Miller, Likes and Atkinson levees, in such manner that appellees are justified in erecting a levee upon their east lines to protect themselves from the overflow of Hadley creek thus cast upon them. That is, by reason of the crowding of the waters of Hadley creek westward, a burden has been cast upon the lands

of appellees that legally they are not bound to restored it to its natural channel. A debear, and that the owners of such lands murrer was filed to the answer and overmay lawfully erect such barriers along the ruled, and it was held there was no error in eastern border of said lands as may be neces the ruling of the trial court upon the desary to protect said lands from such over murrer. flow, or, in other words, that they may law In the Kauffman Case it was said (26 Pa. fully repel from their lands, by proper levees, 441, 67 Am. Dec. 437): "The plaintiffs had the waters of Hadley creek which have been

no right to insist upon his (the defendant's) wrongfully cast upon their lands. Especially receiving waters which nature never appointmust this be true as they propose to erect ed to flow there, and against any contrivance said barriers upon their own lands, and all to reverse the order of nature he might peacethe waters which they collect upon their

ably and on his own land take measures of lands by reason of such barriers will be dis

precaution.

* The only servitude the charged into a natural water course upon plaintiffs could claim in the defendant's land their own lands, and one which, from the was that it should receive the overflow which evidence, appears to be amply sufficient to was natural and customary.

* * The convey those waters to the Sny. Kauffman v.

elevation which protected him in ordinary Griesemer, 26 Pa. 407, 67 Am. Dec. 437;

times could not be reduced without his conWilhelm v. Burleyson, 106 N. C. 381, 11 S. sent, and when the undue liberty was taken, E. 590; Harding v. Whitney, 40 Ind. 379;

he was not a wrongdoer in protecting himself Avery v. Empire Woollen Co., 82 N. Y. 582.

from the consequences.” In the Avery Case the plaintiff's pred

It is, however, said on behalf of the apecessor in title constructed, and the plain-pellant that he or his predecessors in title tiff maintained, an embankment upon his

were in no way responsible for the change land, which changed the position of the chan

made in the course of Hadley Creek. The nel of a stream and turned the water on defendant's land. Defendant constructed an

same may be said of appellees and their embankment turning the stream back, and

predecessors in title. The appellant seeks

to avail himself of the acts of the persons it was held defendant had the right to dam

who in part contributed to the diversion of against the water so turned upon his land,

the waters of Hadley creek from their origand if, in protecting himself, he obstructed

inal channel, by insisting that these waters the flow of water and turned the stream further back than originally it was, plaintiff

must now flow over the appellees' lands and could not complain, as it was consequent

his lands be relieved from such overflow.

As the appellant predicates his right to mainupon his own wrongful act. In the Wilhelm Case the plaintiff brought

tain his bill upon the acts of the parties who an action for damages for erecting a dam

in part changed the water course of Hadley upon the bank of a creek so that the water

creek, the appellees, we think, have the right overflowed the plaintiff's land. On a hearing

to meet such claim by showing that their it appeared that the plaintiff had previously

predecessors in title never consented to such erected a dam, which obliged the defendant

change, and that the appellees may, as to erect one for his own protection. It was

against the appellant, who predicates his said: “The plaintiff first built a wall on his

right to have the overflow water from Hadley side of the creek, and thereby caused the

creek which legally belongs upon his land water to overflow the defendant's land on

cast upon the appellees' lands, protect their the other side and lower down. The defend

lands from such overflow by placing upon ant had a right to build a dam on the north

their lands barriers which will divert said bank to stop the overflow brought about in

overflow waters off of their lands and back that way, and if, in effecting that object, it

into their natural channel. By claiming a became necessary to obstruct the flow of

of prescriptive right to flood appellees' lands water in the creek and cause it to 'eddy,' so

by virtue of the acts of the persons who in as in freshets to flood more of the plaintiff's

part diverted the waters of old Hadley creek land than had previously been covered in

from its channel, the appellant makes the acts freshets, the defendant was not answerable of those parties his own, and is bound therein damages for such additional overflow.” by.

In the Harding Case the plaintiff charged For the reasons suggested we think the that the defendant had obstructed a stream circuit court did not err in dismissing the of water and caused it to flow over the lands bill, and that the judgment of the Appellate of the plaintiff adjoining. The defendant Court affirming said decree should be answered that the plaintiff had previously affirmed. diverted the water course to defendant's in The judgment of the Appellate Court will jury, and for his own protection he had pro be affirmed. vided against its flowing over his land and Judgment affirmed.

(222 Ill. 169)
COMMERCE VAULT CO. V. BARRETT,

Sheriff. (Supreme Court of Illinois. June 21, 1906.) 1. JUDGMENT – LIEN – PROPERTY SUBJECT – RIGHT TO REDEEM.

The right of the mortgagor of a leasehold interest to redeem from the foreclosure sale thereof is not subject to levy and sale under execution, and hence a judgment rendered against the mortgagor after the foreclosure sale is not a lien upon such right to redeem.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, $$ 1343, 1345.] 2. SAME-REDEMPTION AND RESALE-EXCESS OF I'ROCEEDS.

Where a mortgaged leasehold was sold at foreclosure, and the holder of a judgment against the mortgagor, obtained after the foreclosure sale, redeemed from the sale and had the leasehold resold for a sum more than sufficient to repay the money advanced for redemption and satisfy the judgment, the mortgagor had merely a chose in action against the sheriff to recover the surplus remaining in his hands, and other judgments obtained by the judgment creditor after the resale were not a lien upon such excess.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1345.]

Appeal from Appellate Court, First District.

Action by the Commerce Vault Company, for the use of Benjamin McWilliams, against Thomas E. Barrett, as sheriff. From a judgment of the Appellate Court, affirming a judgment for defendant, plaintiff appeals. Reversed and remanded.

This is a suit in garnishment, brought in the circuit court of Cook county by the Commerce Vault Company, for the use of Benjamin McWilliams, the appellant, against Thomas E. Barrett, sheriff of Cook county, the appellee. Written interrogatories were filed, which the granishee answered. Exceptions were taken to the answer and were overruled by the court. The garnishee was discharged, and judgment was rendered against the appellant for costs. An appeal was taken to the Appellate Court for the First District, where the judgment of the circuit court was affirmed. Appellant has prosecuted a further appeal to this court.

The facts, as disclosed by the answer of the garnishee, are as follows: On August 22, 1902, the leashold interest of the Commerce Vault Company in certain real estate in Cook county was sold under a foreclosure decree. No redemption was made by the Commerce Vault Company from that sale. Thereafter, at the October term, 1903, of the superior court of Cook county, judgment was rendered against said company, in favor of the Knights Templars and Masons Life Indemnity Company, for $29,392. Execution (hereinafter referred to as execution No. 1) was issued upon this judgment and delivered to the sheriff of Cook county, together with the amount necessary to redeem from the foreclosure sale. On October 23, 1903, the sheriff levied on the leasehold interest above mentioned, and on

November 24, 1903, sold the same under execution No. 1 for $65,000. After making the said levy, but before sale thereunder, the sheriff received two other executions (hereinafter referred to as executions Nos. 2 and 3) against the Commence Vault Company and in favor of the Knights Templars and Masons Life Indemnity Company, one of which was issued upon a judgment rendered at the October term, 1903, of the circuit court of Cook county, and the other at the October term, 1903, of the superior court of Cook county; the aggregate amount of these two judgments being $186,618.07.

McWilliams obtained judgment against the Commerce Vault Company for $3,325 at the October term, 1903, of the circuit court of Cook county. Execution was issued on this judgment and delivered to the sheriff of Cook county, who returned it “no property found." Prior to the sale by the sheriff last above mentioned, and on November 20, 1903, the circuit court of Cook county, in a proceeding by McWilliams against the Commerce Vault Company, entered an order restraining Barrett, sheriff of Cook county, during the pendency of a certain motion in said cause, from paying over to any person or persons whomsoever any and all proceeds in excess of $16,990.27 arising from the sale to be made by him under execution No. 1, and from applying any of the proceeds of said sale in excess of $16,990.27 on execution No. 1, and from applying any of the proceeds of said sale in excess of $16,990.27 on executions Nos. 2 and 3. The garnishment writ herein was served upon appellee on December 15, 1903, and the restraining order was dissolved on the following day. The garnishee set up, by his answer to the interrogatories filed in this suit, that on November 24, 1903, being the day of the sale under execution No. 1, he paid to the redeeming creditor, the Knights Templars and Masons Life Indemnity Company, $16,730.55, and retained his fees, amounting to $741.04, leaving a balance of $47,528.41 in his hands on that date belonging to the Commerce Vault Company. He claimed by said answer that this balance was subject to the lien of execution No. 1, under which the redemption and sale had been made, and was also subject to the liens of executions Nos. 2 and 3, which were in his hands on that date. The answer disclosed that, after satisfying execution No. 1, there will remain a surplus of $17,961.96 from the proceeds of the sale made under that execution. The contention of appellant is that this surplus is subject to garnishment, while appellee's position is that executions Nos. 2 and 3 were liens upon this surplus at the time the garnishment writ was served, and that, inasmuch as it will require all of said surplus to satisfy these two executions, no part thereof is subject to garnishment.

Taylor & Martin, for appellant. Seymour Edgerton, for appellee.

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