I handled a drainage case a couple of years ago. My client's basement flooded after the neighboring farm was developed by a local home builder. We alleged that the defendant had, by artificial means, changed the natural drainage of its real estate in such a manner that water flowed onto my client's property in a quantity greater than that which had flowed naturally.
That case settled relatively quickly, so I did not have a chance to become a true drainage law expert, but a recent drainage law case from the Illinois Supreme Court caught my eye. In that case, the Christensen family started subdividing its 100 acre farm in 1994. Plaintiffs bought 65 acres. Defendants bought 19 acres directly south of plaintiffs' land. Water from plaintiffs' property drained in a south-easterly direction, right onto defendants' property.
Long before they sold it, the Christensens had installed clay drainage tile on their property. When plaintiffs' purchased their portion of the property, the tile needed extensive repairs and plaintiffs wanted to replace the clay tile with corrugated plastic tile. Because it was a unified system of tile across both plaintiffs' and defendants' land, plaintiffs needed access onto defendants property to extend the new plastic tile. Defendants would not allow plaintiffs onto their property to make the necessary repairs and improvements, so plaintiffs filed suit.
Plaintiffs sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the defendants and that pursuant to the Illinois Drainage Code plaintiffs should be allowed access to defendants' property to make the necessary repairs.
The Court found that if plaintiffs originally paid for construction of the tile system, or if they are successors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair. If the tile system was originally constructed by mutual license, consent or agreement of the adjacent landowners, plaintiffs then have the right to enter “upon the lands upon which the drain *** is situated and repair the drain.”
So, plaintiffs could access the defendants' property, but the defendants expressed concern that the tile work contemplated by plaintiffs would damage their fields and the existing tile. Not to worry, said the Court. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work. 70 ILCS 605/2–6 (West 2004). Those actual damages can be resolved in proceedings conducted after the work is completed.
That case settled relatively quickly, so I did not have a chance to become a true drainage law expert, but a recent drainage law case from the Illinois Supreme Court caught my eye. In that case, the Christensen family started subdividing its 100 acre farm in 1994. Plaintiffs bought 65 acres. Defendants bought 19 acres directly south of plaintiffs' land. Water from plaintiffs' property drained in a south-easterly direction, right onto defendants' property.
Long before they sold it, the Christensens had installed clay drainage tile on their property. When plaintiffs' purchased their portion of the property, the tile needed extensive repairs and plaintiffs wanted to replace the clay tile with corrugated plastic tile. Because it was a unified system of tile across both plaintiffs' and defendants' land, plaintiffs needed access onto defendants property to extend the new plastic tile. Defendants would not allow plaintiffs onto their property to make the necessary repairs and improvements, so plaintiffs filed suit.
Plaintiffs sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the defendants and that pursuant to the Illinois Drainage Code plaintiffs should be allowed access to defendants' property to make the necessary repairs.
The Court found that if plaintiffs originally paid for construction of the tile system, or if they are successors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair. If the tile system was originally constructed by mutual license, consent or agreement of the adjacent landowners, plaintiffs then have the right to enter “upon the lands upon which the drain *** is situated and repair the drain.”
So, plaintiffs could access the defendants' property, but the defendants expressed concern that the tile work contemplated by plaintiffs would damage their fields and the existing tile. Not to worry, said the Court. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work. 70 ILCS 605/2–6 (West 2004). Those actual damages can be resolved in proceedings conducted after the work is completed.
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