text:
    Mrs. Sophia L. Hicks v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damage to mill by removal of dams. A mill-owner who has a mill site near a State dam but has no contract with the State giving the right to use the water power has no claim against the State because of its removal of the dam.
   Claimant filed her petition in this case on the_ 15 th day of August, 1889. Petition recites in substance that the State of Illinois had heretofore constructed across the Little Wabash river a dam at or near the town of New Haven and for the purpose of aiding navigation put in a lock by reason of which there existed water power which was useful and valuable in operating machinery. That in 1869 the Board of Canal Commissioners of the State of Illinois under and by authority of the State leased the entire water power at said lock and darn situated at the town of New Haven on the Little Wabash-river in the County of Gallatin together with certain adjacent lands to Janies Ford and A. C. Hess for the period of fifty years to begin on the 1st day of July, 1870, and was to receive as yearly rent the sum of $330 for each of the years mentioned in said lease. And that by the terms of said lease the State of Illinois was to keep said lock and dam in good repair. The said sum of $330 was to be paid for the period of ten years or until the 1st day of July, 1880, and upon the first days of July in 1880, 1890, 1900 and 1910 the water power was to be appraised by the proper authorities of the State of Illinois and the party of the second part was to pay the appraised valuation with six per cent interest to be paid quarterly.

The petition further recites that by virtue of a mortgage given by Ford and Hess and their assigns, claimant became by certain proceedings had in the circuit court of Gallatin county the owner of the lease, rights and privileges conferred therein. That afterwards in 1887 by virtue - of an act of the Legislature, the State of Illinois caused said dam to be removed so that the water power to run the mill of the claimant was entirely destroyed, whereby it is said the claimant has been damaged the sum of $12,000.

It appears from the proof that in October, 1882, the claimant had failed to pay the annual rent and that she was then owing the Canal Commissioners as back rents the sum of $495. On the 13th day of September, 1882, the. treasurer of the Canal Commissioners addressed to claimant a letter in which the Canal Commissioners made the following proposition:

“If you will pay up the back water rent and release the State from the lease made with you to give you the water power free of expense to you, you to pay for any repairs on the lock and dam that may be necessary to be made.”

The evidence does not disclose what the answer of Mrs. Hicks was to this letter. But on the 2d day of October it appears she sent a draft for the sum of $495, and thereupon there was drawn up and executed by the President, Secretary and Treasurer of the Board of Canal Commissioners of the State of Illinois on behalf of the State and Mrs. Hicks in her own behalf the following agreement, which is attached to the original lease under their respective seals:

“Whereas, it appears by the deed of the court of County of Gallatin and State of Illinois that Mrs. Sophia L. Hicks became the owner of all the right, title and interest and possession of James Ford and A. G. Hess by lease to them from the Canal Commissioners dated the 2d day of December, 1869, to the premises therein described. Now, therefore, in consideration of the sum of $495 for the rent due on said lease to July 1, 1882, paid to the Canal Commissioners of the State of Illinois, they hereby release, cancel and declare null and void the lease hereinbefore mentioned to the property, rights and privileges therein granted. The said Sophia L. Hicks hereby releases the Canal Commissioners and the State of Illinois and the said Canal Commissioners hereby releases the said Sophia L. Hicks from all liability therein. This release sealed and signed in duplicate this 20th day of November, 1882.”

In the testimony of Martin Kingman who was then Treasurer of the Canal Commissioners whose testimony was taken on behalf of the claimant he was asked this question: “Was it not your understanding that Mrs. Hicks was to have the dam free for the remaining time of the lease, was not that the understanding between you and the Canal Commissioners and her?” The witness answered: “As to that this agreement explains the exact understanding, that is Exhibit T.” Exhibit “T” being the paper called the release before quoted. Mrs. Hicks has not been produced as a witness and there is no evidence by which it appears that a new lease was made between her and the State of Illinois. On the contrary the only evidence there is is that the contract between the claimant and the Canal Commissioners was the one before quoted. The legal effect of this contract was that claimant was released from all liability under the original lease and the State was also released; it being a cancellation of the lease and the annulling of all the rights and privileges therein granted. It further appears from the proof that in the summer of 1887 the dam was removed by authority of the State so that the water power was entirely destroyed. But it is stipulated that prior to that time the mill had been burned down •and never re-built. Claimant has utterly failed to prove that she had any lease or other contract with the State •of Illinois from the time the original leáse was conceited by the agreement of date the 20th day of November, 1882. •So that if the mill had not been destroyed we cannot understand upon what authority a claim against the State of Illinois can be made. If claimant had any right to •use the water power it must have been by virtue of some contract with the State. So far as it appears by the proof there was no contract and the proposition that was made to permit her to have the use of the water power by keeping the dam in repair never was accepted.

Before we would feel authorized to find an award in favor of the claimant it must be shown by the proof that «he had some lawful right in the use of the power which it is claimed that the State took away. So far as this -claimant is concerned from anything made to appear in evidence the State had a perfect right to take away the dam and destroy the water power. And. it is very clear that claimant’s mill haying been destroyed that she was in no way damaged, and for these reasons her claim is rejected.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas N. Biedleman, Susan S. Varnell and J. O. Tate v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—State may abandon locks and dams without liability to those using the water privileges. Under Sec. 8, Chap. 19, R. S. entitled, “Canals and Improvement of Illinois and Little Wabash Rivers,” which provides that the Canal Commissioners may wholly abandon or destroy the work by the construction of which the water privilege shall have been created whenever, in the opinion of the legislature, such work shall cease to be advantageous to the State, the State may at any time abandon locks and dams without being liable to those who have been availing themselves of the water privilege afforded by them.
   The claimants filed their petition with the Auditor of Public Accounts on the 22d day of July, A. D. 1889, in which they claim damages to the amount of $16,700.00.

It appears from claimant’s petition that previous to July 1, 1887, they had purchased a mill site at Carmi on the Little Wabash river in White county, Illinois, and had improved said mill at a cost of several thousand dollars; that said mill was constructed for the purpose of saving logs into lumber and that there was an abundance of timber on both sides of the river below Carmi and above New Haven in Gallatin county accessible to said mill by said river.

Claimants show by their petition that they had in the spring and summer of 1887 a large amount of timber cut into logs and banked on the margin of the stream ready for transportation to their said mill. That on account of the water being let out of the dam at New Haven they were prevented from getting their logs to said mill and that they thereby met with great, loss, with other particulars relative to their losses not deemed material to mention.

Claimants allege that many years ago the State of Illinois constructed a dam across the Little Wabash river at New Haven thereby effecting slack water navigation between that point and Carmi; and that at the session of the Legislature in 1887, by an act approved April 1, 1887, and in force July 1, 1887, the Canal Commissioners of the State of Illinois were authorized within six months after the act should become a law to remove or cause to be removed the said dam at New Haven and that said dam was so removed in pursuance of said act; that their damages were consequent upon such removal and that the State is liable therefor. No authority has been cited sustaining this view and we do not think it can be sustained. By a reference to chap. 19 of the Revised Statutes, entitled “Canals and Improvement of Illinois and Little Wabash rivers” in the 6th clause of the 8th section, which has been in force since July 1,1874, we find that the Canal Commissioners were authorized “wholly to abandon or destroy the work by the construction of which the water privilege shall have been created whenever, in the opinion of the Legislature, such work shall cease to be advantageous to the State.”

This being a public law of the State the claimants must be conclusively presumed to have put themselves in the condition they describe with a full knowledge of the law.

The Canal Commissioners’ Report to the General Assembly of December 1, 1878, approves the report of the superintendent of canals in which he reports having visited the Little Wabash river improvements to make such examination as would assist the Commissioners in determining what should be done with that property in which he states that said improvements are worthless except for the water power and recommends that' nothing further be done until the leases should expire at which time in his opinion it would be for the interest of the State to abandon the improvement altogether.

Again the Canal Commissioners in their report of December 1, 1880, referring to the Little Wabash river improvement, say that it is worthless, except for water power and the amount necessary to be expended to keep the lock and dam in order will be much larger than the sum to be received from its rental for water power and recommend that the improvement be abandoned on the part of the State.

Again said Canal Commissioners in their report of December 1, 1882, say that they have cancelled the leases between the State and other parties granting-water power priviliges “thereby relieving the State from making further expenditures for the maintenance of this lock and dam,” and showing that the amount on hand for this improvement had been credited to the general fund of the Illinois and Michigan canal and Illinois river improvements, thus showing an intention on the part of the State to abandon said improvement.

The same recommendation was made by the Canal Commissioners to the General Assembly which passed the Act of 1887.

We cannot see how under these circumstances there can be any legal liability upon the part of the State. Nor can we see that the claimants were misled by any act of the State or its agents into making the improvements for which they claim damages. This claim is therefore wholly rejected.


text:
    George C. Zeigler and John D. Reinwalt v. The State of Illinois.

      Opinion filed December 12, 1890.

    Waters —parties damaged by the removal of a State.dam in river not entitled to damages from State. Where the law authorizing public improvements provides that the State may abandon them at any time when it may seem expedient, parties who have availed themselves of the water privileges to erect and operate a mill must take notice from the law of the State, that said improvement Is liable to be abandoned at any time by the State, and are not entitled to damages in case it is discontinued.
   Claimants filed their petition in the office of the Auditor Of Public Accounts of the State of Illinois, July 25, 1889, and due notice was given the Attorney General and his answer thereto on behalf of the State of Illinois, was filed August 4,1890.

Petitioners in substance complain that the State of Illinois had constructed a dam across the Little Wabash river at New Haven in Gallatin county in said State, thereby furnishing slack water navigation the year around between New Haven aforesaid and Carmi in White county in said State. That after the construction of said dam said petitioners became the owners of and constructed a mill for the manufacture of lumber and timber on the bank of the river at the said city of Carmi and that said mill with its appurtenances was of the value of $10,000 and that they depended upon the slack water navigation which said river afforded to supply their said mill with timber for manufacturing purposes. That they owned large and valuable amounts of timber situated so as to be suitable and convenient for transportation to their said mill by way of the river aforesaid.

That after said petitioners had made their said improvements and had purchased timber for the use of said mill and while the same was in operation and while said petitioners were deriving large profits therefrom the State, of Illinois by an act óf its Legislature which became a law July 1, A. D. 1887, authorized the removal of the said dam at Hew Haven and that the same pursuant to said act was removed on the 15th day of July, A. D. 1887, and that in consequence the water in said river receded until it became so low that it was impossible to float their logs in said riyer or to handle them at their said mill and that petitioners for that reason could not supply said mill with logs and the logs theretofore banked on said stream were damaged from decay and depreciated in value so that- said petitioners, suffered, in the aggregate a loss of $10,500. .Said petition was duly verified and proof taken and filed in support thereof according to law.

We have considered the testimony and find that it tends to support the allegations in the petition but do not find that it differs in principle from the case of Beidleman, Vamell & Tate v. The State of Illinois heretofore considered and passed upon at this session.

Petitioners have not cited any authority nor produced any argument from which we are led to conclude that there is any liability on the part of the State to said petitioners on account of the premises.

It does not appear to us that there were any contractual relations existing between the petitioners and the State on account of the improvement of said river by the construction of the dam at Hew Haven. We do not see wherein the discontinuance of said dam differs in principle from the removal of a county or state capital which often reduces largely the value of the real estate of the place from whence it was removed. In neither of these cases can the parties whose interests would be injuriously affected, enjoin the act or claim compensation from the public.

Cooley’s Constitutional Limitations—4th Edition, p. 481.

The petitioners here like those in the case before referred to, were bound to take notice from the law of the State, that said improvement was liable to be abandoned at any time by the State.

This claim for the reasons aforesaid is rejected and no award will be made.


text:
    Jacob Schmidt v. The State of Illinois.

      Opinion filed December 12, 1890.

    1. Respondeat Supebioe—State not liable for negligence of employes. A state or other involuntary municipal corporation cannot be held liable for the tort or negligence of any of its employes unless such liability is created by statute.
    2. Commission of Claims—purpose of statute creating. The law creating this commission does not undertake to create a new liability against the State but provides a method, by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the claimant.
    3. Same—claimant must present a legal or equitable claim against State. The .Commission of Claims has no power to make an award in any case unless the facts show a legal or equitable claim against the State. It was not the intention of the Legislature to leave it discretionary with the commission to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.
    4. Practice—as to conclusiveness of decision. Section 10 of the act creating this commission provides as follows: “In case said commission shall reject any claim so filed as aforesaid upon the hearing thereof, such rejection shall conclude all parties thereto, unless said commission shall in their award thereon otherwise direct.”
   The claimant’s petition was filed with the Auditor of Public Accounts on the 15th day of November, 1889. Petition alleges on the 10th day of December 1887, and prior thereto claimant was engaged in the service of the State of Illinois as employee in the Southern Illinois Penetentiary at Chester; that the particular position in which he was employed, was the position known to prison rules as “cell house keeper” and the duties of such position were to have charge of the cell house during the day while the convicts confined in said prison, were at work; to scrub out cells; scrub the floors and make beds and to do such other work as might be required in such capacity in order to keep the cells comfortable and cleanly, and that, he at all times, worked under the direction of superior officers. On the day aforesaid while petitioner was so engaged in the discharge of his duty as cell house keeper, and without any fault or negligence or omission of duty on his part, one George Dawson, a colored convict, confined in said prison, wilfully and maliciously attacked .claimant with a sharp stick, or broom handle, which he drove into one of claimant’s eyes, tearing the eye from the socket and wholly destroying the use and sight thereof; so that since said injury claimant had been unfitted and incapacitated for any kind of business. That his mind had been so affected so that he was unable to perform any services requiring any thought or operation of mind. That as keeper of cell house it was claimant’s duty to care for certain classes of convicts who were allowed to remain in their cells during working-hours ; that is, convicts who were unable from infirmities of age, and those who were sick and unable to work. That said convict Dawson did not belong to those classes of convicts nor was he sick or otherwise incapacitated for work and was not, under the rules of said prison, entitled to remain in said cell house during working-hours. That said Dawson was an unruly and dangerous convict and was disliked and feared by the guards and officers of the prison as well as by his fellow convicts, to such an extent that the other convicts feared him and desired and requested that they be not required to work in the company or presence of said Dawson. That it was the duty of the officers of said prison who were the superior officers of said claimant to- see that said Dawson was placed at hard labor, or that he was confined in the solitary; that said superior officers wholly omitted and neglected their duty and did not require said Dawson to be placed at hard labor or confined in the solitary but allowed him to remain in said cell house in violation of the known rules of said prison and their well known, duty in that behalf. Said convict Dawson had been sentenced to prison for life for the crime of murder committed on his own child—a little girl about 12 years old. That immediately after the attack upon claimant by said Dawson, said Dawson was immediately locked up in the solitary where he has ever since remained, and by reason of the injuries alleged in the petition, claimant asks damages and for an award against the State for the sum of $5,000.00.

The proof in this case shows that the duties of claimant were substantially as alleged in his petition. On the 10th day of December 1887 claimant was sent to the cell where said Dawson was confined for the purpose of cleaning out the cell. That claimant asked said Dawson to step outside so as to enable him to clean out the cell.. That said Dawson seized a stool and a broom stick and ordered him to shut the door. Claimant observing the dangerous mood that Dawson was in thought it best to-let him alone'until another time and shut the door and locked it and was in the act of turning to move away when said Dawson thrust the broom stick through the-bars and into claimant’s right eye as averred in petition.

By a stipulation of the counsel for claimant and the Attorney General, it appears that neither party was able-to ascertain in what manner this convict Dawson obtained the broom stick which he used as a weapon in the-injuries inflicted upon claimant; but claimant testifies that up to the time of finding it in his possession as described, he did not know that he had anything of the kind or how he obtained it and that he did not obtain it from the claimant. As far as it appears from the evidénce in this case there is nothing to show in what manner he obtained this stick. But it is said in testimony of claimant that convicts were not allowed to have brooms or sticks of that kind in their cells. Attached to the evidence in this case are the printed rules for the government of convicts in the penetentiary at Chester. These-rules do not disclose anything upon the subject as to whether they were allowed to have brooms in their cells or not. The only printed rule we find having any bearing on the question is rule 10 which provides: “That convicts must not carry knives, tools, of any kind; pencils, paper or any material whatever from the shop to the cell, without permission in writing from the warden or deputy.” But it clearly appears from the evidence of the warden and other employees that this convict Dawson was known and recognized as a very vicious and dangerous man and was supposed to be more or less insane. If it be conceded, which the proof leaves in some doubt, that this convict obtained the stick used by him in the attack upon claimant, through the negligence or carelessness of some employee, then the rule of law seems to be firmly settled that a State or other involuntary municipal corporation, cannot be held liable for the tort or negligence of any of its employees unless such liability is created by statute. See following cases Avhere this has been so held: Murdock Parlor Grate Co. vs. Commonwealth, 24 N. E. Rep., 855; Hill vs. Boston, 122 Mass. 344; Curran vs. Boston, 151 Mass., 505; Gibbons vs. U. S., 8 Wall, 269; U. S. vs. Kirkpatrick 9 Wheaton 720; Lewis vs. State of New York 96 N. Y. 71; Sipple vs. State, 99 N. Y. 284; Splittorf, 108 N. Y. 205; 2nd. Dillon on Municipal Corporations, Sec. 761-762. Cooly’s Constitutional Limitations, 240, 247; Hedges vs. County of Madison 1 Gil. 567; Town of Waltham vs. Kemper, 55 Ills. 346; David Elmore vs. Drainage Commissioners decided by Supreme Court of Illinois; not published.

The law creating this commission does not undertake to create a new liability against the State but provides a method by which claims against the State may be heard before this commission, and the claim rejected or an award made in favor of the claimant. The statute creating this Commission, after reciting the various classes of claims of which the Commission might have jurisdiction, among Avhich may be said to be included claim of this petitioner, provides: “And such commission shall hear such claims according to its rules and established practice and determine the same according to the principles of equity and justice, except as otherwise provided in the laws of this State; and shall file with the records of each claim determined, a brief, written statement of the reason of the determination.”

The point has been pressed in argument by counsel for claimant that the legislature would have the right in a case of this kind, in its discretion, to allow a reasonable sum to persons injured, making an appropriation for its payment, although the claim was strictly speaking, neither a legal or equitable claim, and that the intent of the act creating this Commission was to transfer to the Commission the same discretionary power that the legislature would have; or, in other words, that the Commission would be justified although believing the claim was neither an equitable or legal claim against the State, in its discretion to make an award against the State and in favor of claimant. To this proposition we cannot assent. It is our understanding that in the use of the language “to determine the same according to the principles of equity and justice” is meant and used with a legal signification and that this Commission has no power to make :an award in any case unless the facts show a legal or ■equitable claim against the State. We do not believe it was the intention of the legislature tv leave it discretionary with the Commission' to make an award in favor of the claimant regardless of the question as to whether or not he had a legal claim against the State.

We are of the opinion further, that it would be an exceedingly dangerous precedent to hold that the Commission had any such discretion. While it is true and we have endeavored in this case to find some principle upon which we might make an award in favor of this claimant, that his health and usefulness has been practically destroyed, recognizing that it is one of those cases appealing strongly to the sympathy of those who have heard this evidence, or are familiar with the facts of the case and we cannot but believe that if the facts of this case are presented to the legislature of this State that some relief will be granted to this unfortunate claimant; but, at the same time we feel compelled to hold that we have no power, under the facts, to make an award in his favor and for that reason we reject the claim.

Section 10 of the act creating this Commission provides as follows: “In case said Commission shall reject any claim so filed as aforesaid upon the hearing thereof, such rejection shall conclude all parties thereto, unless said Commission shall in their award thereon otherwise direct.” In order that claimant may present his claim to the legislature we expressly direct, that under the power conferred upon us by the above section, that claimant shall not be concluded by the finding above rejecting his claim.


text:
    Lee Hickox v. The State of Illinois.

      Opinion filed December 12, 1890.

    Respondeat Superior—State is liable for damages caused by bullets used by militia in target practice. The damaging of property by bullets during target practice by the State Militia is not merely the act of a servant in which the servant could exercise a choice or make use of his judgment; it is the military acting in strict subordination to the civil power, and the State is liable.
   The petition in this case was filed on the 28th day of April, A. D. 1890, alleging that claimant is the legal owner in fee of the lands described in the petition, consisting of 240 acres occupied by claimant and used by him for agricultural purposes; that the State of Illinois owns and controls certain real estate described in the petition which is used by the State as a permanent camp ground known as Camp Lincoln; that a part of said real estate so owned and controlled by the State of Illinois is used by and under the authority of the State at stated times during each year for active drill in camp including- rifle practice as required by law.

That leaden balls fired by the members of the National Guard while at rifle practice-at said camp pass over and upon petitioner’s lands with such great frequency as to greatly endanger the lives of your petitioner, his family and servants as well as all domestic animals, and such acts have greatly depreciated the value of claimant’s lands and the valuable improvements thereon; that prior to the use of said lands so owned and controlled by the State as a rifle range claimant’s lands were worth $100 per acre and that now they are worth not more than $20 per acre.

Petition further charges that during the year 1889 a part of said real estate so owned by claimant contained a valuable crop of hay of the value of $560, and that because of the danger from the frequent discharge of such leaden balls from Camp Lincoln upon and over, said lands it became so dangerous to the lives of petitioner and his servants that said crops could not be gathered and necessitated the abandonment and consequent loss of said crop.

Petition also claims $15.00 damages for loss of services of one H. W. Crawford, a servant of claimant, who was on the 15th day of July, 1889, seriously injured while in claimant’s service on said farm by a rifle ball fired by a member of said Illinois National Guard while at rifle practice at said camp.

The evidence in this case very clearly shows that during the months of July and August of the year 1889, regiments of the Illinois National Guard were encamped at Camp Lincoln and that while so encamped said Guards were required by the State to perform target practice, and for that purpose twenty targets were placed at the foot of a natural hill on or near the north line of the camp; the hill was fifty feet or more in heighth; the target practice was carried on at a distance ranging from two hundred to one thousand yards distant from said targets, and was kept up from day to day during the encampment. In this target practice the Springfield rifle is used carrying a 45 calibre ball; these rifles will carry a ball the distance of one mile. The evidence is to the effect—that during the rifle practice as above stated those 45 calibre balls were thrown over the hill and with great frequency thrown upon the farm of claimant.—at one time striking and seriously wounding a farm hand of claimant’s; at other times falling about the dwelling occupied by claimant and passing through his bams, orchards and upon the fields where corn and other crops were grown, with such frequency as to render it extremely dangerous to the lives of the occupants. Claimant was prevented from harvesting a very heavy crop of hay and clover grown upon the north part of said farm in the summer of 1889, and has been put to great inconvenience and placed in great danger by reason of such target practice.

The legislature has appropriated the sum of eighty-five thousand dollars for the procurement of permanent camp and rifle range and for other purposes and authorized the Auditor of the State to draw his warrant on the State Treasurer for said sum upon the voucher of the Adjutant General, approved by the Governor. Session laws of 1885, page 216.

On the 1st day of May, 1886, the Governor appointed a Commission to locate and purchase a suitable site for a permanent camp and rifle range as provided for as above; special order No. 29, special order book of 1886, page 505, in Adjutant General’s office.

This Commission reports the purchase of Camp Lincoln for the sum of $15,000; Adjutant General’s report of December 31, 1886, page 209. For this sum and in full payment for the lands on which Camp Lincoln is situated the Adjutant General drew his voucher as provided in the session laws above referred to. The voucher is dated May 5, 1886, No. 9,720; was approved by R. J. Oglesby, the then Governor, and together with the receipts for that sum by the then owners of this tract of land is on file in the Auditor’s office. The deed to this tract of land is duly entered of record in the recorder’s office of Sangamon county.

Article 4, chapter 129 of our revised statutes provides that the Illinois National Guard shall parade for drill not less than three nor more than four days annually. It provides also that during the encampment the Guards shall engage in target practice. The constitution of the State of Illinois provides that the military shall be in strict subordination to the civil power and that private property shall not be taken or damaged for public use without just compensation.

While we conclude as is claimed by the Attorney General that the State is not liable for the torts of its servants we hold that the authorities above referred to show that the National Guards were acting under direct authority of the laws of the State. The State had purchased the camp ground, had expended its money in preparing the ground for a camp, had provided and set up the targets, had purchased the ammunition and the rifles, had' prescribed the time and place for this practice. It was not the exercise of the judgment of a servant—it was the strict compliance of the military to the civil power. The act complained of here is not merely the act of a servant in which the servant could exercise a choice or make use of his judgment; it is the military acting in strict subordination to the civil power. This is something more than mere negligence of a servant. The act complained of here as shown by the evidence is kindred to the damaging of private property for public use for the time being. And while we are of the opinion that the lands have not been damaged by the act complained of yet for the loss of crops and the other circumstances shown in this case as sustained by the claimant, we are of the opinion that the State is liable and we have fixed the liability at the sum of four hundred and fifty dollars and the award will be for that sum.


text:
    Louis A. Guibert v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—claim for injury to lands caused by construction of dam by the State of Illinois. Court reviews evidence and holds that petitioner’s claim is not supported by the evidence and. claim is rejected.
   The claimant in this case filed his petition on the 20th day of October, A. D. 1879, in which it is charged that the claimant is the legal owner of the lands described in the petition, one hundred and eighty to one hundred and ninety acres of which it is charged are damaged by the backing of the water of the Illinois river over said lands.

That in the month of October, A. D. 1877, a dam was constructed across said river near Copperas Creek under and by virtue of the authority of the State of Illinois. That said dam lifts the water at or opposite the lands of the petitioner two to three feet higher than it would be but for said dam and at Copperas Creek six and one-half feet higher than it was prior to the construction of said dam. That said river is subject to summer freshets raising said river two to three feet which without said dam were harmless to said lands but with said dam makes what before said dam was constructed would have been a freshet of from two to three feet now from four and one-half to six feet. The increase being wholly caused by the construction of said dam which filling the river backs the water over said lands which have thereby become water soaked and soft to such an extent that said lands will not bear animals and are well nigh worthless and the claimant demands $1,700.00 damages for the injury.

To this petition the Attorney General on behalf of the State of Illinois interposes three pleas:

1st. That the facts are insufficient to entitle the claimant to the relief sought.
2d. That said claim is barred by the statute of limitations.
3d. The general issue.

The Copperas Creek dam was constructed and was closed on the 22d day of October, A. D. 1877, and the petition in this case was filed with the Auditor on the 20th day of October, A. D. 1879, within two years after the completion of said dam. If there is any damage accruing to plaintiff on account of the construction of this dam such claim is not barred by the statute of limitations. But while we have no doubt that the claimant’s lands are wet and incapable of producing such crops as do other lands more favorably situated we cannot see how the wet and boggy condition of these lands can be the result of the building of the Copperas Creek dam. The evidence is to the effect that these lands are one and one-half miles from the river and their wet and boggy condition is caused by the springs near the hills eighteen to twenty-four feet above low water mark. We are of the opinion from a careful examination of all the evidence that claimant’s lands have not been damaged by the back water from the river and we have therefore rejected this claim.


text:
    Elizabeth Guibert v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damages caused by construction of dam. The court reviews evidence and finds that claimant’s lands are not damaged by construction of dam in Illinois river by the State of Illinois.
   The claimant filed her petition on the 20th day of October, 1879, setting forth that by authority of the State of Illinois a dam was constructed across the Illinois river at or near Copperas Creek; that the erection of said dam caused the water in the river opposite claimant’s land to back up over her land and thereby to render it almost worthless, and that said lands will remain water soaked and almost worthless forever. The damage claimed is $880.

To this petition the statute of limitations and the general issue is interposed as a defense; and upon the petition, pleas, depositions and report of the surveyor, this cause is heard.

The evidence discloses the fact that on one tract of claimant’s lands there is a creek running entirely through the tract; the head of the creek is found to be fifteen feet above the river at low water mark. The banks of this creek are low, and from this creek and not from the river the water spreads out over the claimant’s land. The land is found by actual measurement to be from seventeen to twenty feet above old low water mark. We have no doubt but what these lands are becoming more thoroughly water soaked than they were in former years. Undoubtedly this condition would have existed had the dam never been erected. At all events the claimant’s lands are found to be from ten to fourteen feet above that point where the dam ceases to have any effect on the river; and in the judgment of the Commission the claimant’s lands are not damaged by the construction of the dam, and have therefore rejected this claim.


text:
    Heirs of H. L. Craine, Deceased, v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damages caused by construction of State dam. Court reviews evidence and finds that claimant’s lands have been damaged by overflowing of the Illinois river caused by construction of a dam across said river by the State of Illinois.
   Petition in the above cause was filed October 20, 1879. Claimant states in his petition that he is the owner in fee of the southwest fractional quarter of section ten (10) containing seventeen acres; also the northwest fractional quarter of section fifteen (15) containing ninety-five acres, both of said tracts of land being in township twenty-nine (29), north range 3, west of the 3d P. M. That said lands are situated on what is known as the bottom lands on the Illinois river, and subject to overflow; that prior to the acts complained of by petitioner crops of grain could have been successfully raised on said lands; that the State of Illinois in October, 1877, caused to be erected a dam across the Illinois river at Copperas Creek which caused a permanent raise of the level of the water in the river of between three and four feet thereby causing the lands to become wet, spongy and unproductive, causing as claimant charges damages to-the amount of $560.

The proof tends to establish the allegations in the petition. While we think the land of the claimant has been to some extent damaged, from all the evidence the land does not appear to have been of great value before the construction of the dam at Copperas Creek; but it has been fairly proven that the land is less productive and has been damaged. We think claimant has been damaged in the sum of one hundred and thirty-three dollars, and our conclusion is that he would have been, if living entitled to an award in his favor against the State of Illinois for that sum.

The proof shows that since the filing of the claim said Henry L. Craine died, leaving heirs as follows: Julia M. Craine, Sarah E. Dean, Charlés W. Craine, Maggie Richereau, George Craine, Greenbury L. Craine and Raltie Pellett; that W. W. Dean was the administrator of this estate. The death of claimant having been suggested and the heirs and administrator made parties claimants, the award is made in favor of above named heirs of Henry L. Craine for the sum of one hundred and thirty-three dollars.


text:
    Warner Combs v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damage caused by construction of State dam. The Commission reviews the evidence and finds claimant is entitled to an award for damages caused to his land by the construction by the State of Copperas Creek dam on the Illinois river.
   The claimant filed his petition in this case on October 20, 1877, with the Auditor of Public Accounts as required by the statute; the petition recites that claimant is the owner in fee of the following described lands: The northeast quarter of section twelve containing 160 acres. The southeast quarter of the southwest quarter of section twenty (20) containing 40 acres; also the north seven-eighths of the east half of the northwest quarter of section 26, containing 70 acres; also the northeast of the southeast sectional quarter of section 26, containing 80 acres, all in township twelve (12) north range nine east of the 4th P. M., Marshall county, Illinois.

The petition charges that the State of Illinois in October, 1877, constructed a dam in the Illinois river near Copperas Creek which caused the permanent level of the water in the Illinois river to be raised between three and four feet; that the lands of claimant bordering along the Illinois river were subject to overflow in periods of very high water in the river but that in most years claimant could successfully cultivate mostof his land, raising crops of grain and obtaining satisfactory results from farming his land; that since the construction of the dam aforesaid and consequent permanent raising of the level of the water his lands have become wet, springy, unproductive and subject to more frequent overflows, thereby greatly damaging claimant’s land.

The proof in this case sustains nearly every allegation in the petition as to the fact that by the construction of the dam in the Illinois river by the State claimant has been severely damaged. We are satisfied from the proof that the land of claimant was fairly good land for lands so situated along the Illinois river. The evidence seems very positive and conclusive that the value of the land has been materially injured by the construction of this dam and that the State should make good tio him the actual damages sustained.

We think claimant has filed his claim in time so that it is not barred by any statute of limitation and is entitled to an amount against the State. The amount of the actual damages sustained by claimant after a careful consideration is the sum of eight hundred dollars, and he is entitled to an award for that amount.


text:
    Huston W. Crawford v. The State of Illinois.

      Opinion filed December 12, 1890.

      Militia—member entitled to relief when injured by discharge of rifle; under what circumstances. Where a section of the statute provides for target practice at the annual parades and encampments of the National Guard and a person is injured by the discharge of a rifle in the hands of a member of the National Guard under orders in camp, at target practice, under such statute and a statute providing for annual encampments, the injury received is the direct result of an act authorized by the State. It is something more than the mere negligence of a servant or agent and claimant is entitled to recover damages.
   The petition in this ease alleges that on the 15th day of July, A. D. 1889, a regiment of the Illinois National Guard were encamped at Camp Lincoln near the city of Springfield, and that while said regiment was doing-duty as required by the statute of the State of Illinois some member of said regiment while in the line of duty at rifle practice, fired a forty-five calibre rifle ball by the direction and authority of the officers of said regiment which struck petitioner.

That said ball struck and perforated the ankle bone of claimant’s left limb, fracturing the bone at that point and causing great pain and suffering. That claimant is a farm hand, and said injury has permanently disabled him from pursuing his vocation.

The evidence in this case is to the effect that on the 15th day of July, A. D. 1889, a regiment of the Illinois National Guard was encamped at Camp Lincoln and on that day companies of said regiment were engaged in rifle practice. The targets were stationed at the foot oi; a natural hill or bluff, the rise being abrupt and terraced and the hill fifty feet high. The companies engaged in practice were stationed nine hundred or one thousand yards distant from the targets.

The claimant herein was a farm hand and was at the time engaged in the pursuit of his business as a farm hand or laborer about one-half mile in the rear of the targets and while so engaged received the injury complained of for which five thousand dollars damages are claimed.

The Illinois National Guard in their target practice use the Springfield rifle carrying a forty-five calibre rifle ball. A ball of this size struck claimant in the left leg near the ankle joint and was buried in the bone. A surgeon was called and removed the ball and claimant was by direction of the Surgeon General of the National Guard removed to St. John’s Hospital where he was cared for at the expense of the State for fifty-three days. The injury was the result of a shot fired from a musket or Springfield rifle fired by some one of said National Guards while at target practice under the orders of the military authorities of the State of Illinois.

The claimant prior to the time of receiving the injury was receiving for his services as a farm hand $45.00 per month and since that time when able to perform labor has only received $18.00 per month.

The evidence in this case was taken more than one year after the injury was received and at the time of taking the evidence the claimant is still seriously affected. The surgeon who* extracted the ball says: “It may become necessary yet to amputate the limb.” The Surgeon General says: “The wound is of a serious nature and claimant will never fully recover.”

The hill or back stop of this rifle range is less than one-fourth of a mile long and against this hill are placed twenty targets for rifle practice. At each target two men alternately discharge their rifles. So that forty men are kept at this target practice.

The inspector of rifle practice says in his testimony that it would be wild shooting to shoot over the hill when shooting at the target but he says, “they are capable of wild shooting.”

While engaged at this target practice at the distance of one thousand yards from the target it is stated in argument that if the muzzle of the gun at the time of the discharge should be raised one half of an inch the ball would be thrown over the top of the hill. However this may be it appears by the evidence the Springfield rifles are capable of throwing a ball a distance of one mile. The claimant the evidence shows was within less than one-half mile of the targets at the time he received the injury.

That the injury received by the claimant was the result of a discharge of a gun in the hands of some one of the National Guard while engaged in the rifle practice is clearly shown by the evidence.

It is insisted on the part of the State that the State cannot be made liable for injuries arising from negligence of its agents or servants unless some positive statute is shown assuming such liability.

We are aware of the fact that it has been held in Hew York that the State is not liable for injuries arising from negligence or misfeasance of its agents in like manner as a natural person. In the case of Murdock Parlor Grate Co. v. The Commonwealth of Massachusetts, 24 N. E. 855, the court holds that the State is not liable for damages caused by the negligence of its servants in overloading the floor of a room hired by the State and the same rule obtains in most if not all the States.

In Bishop on Non Contract Law, Sec. 749, page 348, it is said: “One of the most obvious propositions of reason as well as of authority is, that a municipal corporation is a subordinate branch, or part, of the government. It has other functions but those of this class are of course discretionary. How in numerous cases beyond what need be referred to here it is assumed that therefore the corporation is not answerable for its negligence in the discharge of those functions. We shall see as we proceed that other authorities do not so hold. One of the reasons apparently swaying the judicial mind toward this opinion is that the supreme governmental power, the State, cannot be sued without its consent. But when we look into this reason we perceive that the non-liability of the State results from its dignity which is not possessed by a municipal corporation; and the State has always been deemed as capable of doing an individual a wrong as any private person and as liable to- respond in damages though its response is of its own grace.”

Chapter 129, Art. 4, Starr & Curtis’ Statutes of the State of Illinois, provides that the Illinois National Guard shall parade for drill not less than three nor more than four days annually, etc.

The Statute provides further that the brigade commander shall direct such target practice at the annual parades and encampments as he may deem expedient, Starr & Curtis, page 2317. The injury received is the direct result of an act authorized by the State. It is something more than the mere negligence of a servant or agent. The National Guards were acting under the direct authority of the laws of the State.

We are of the opinion that the State is liable in this case for damages and of its own grace has authorized this Commission to hear and determine such cases. Session Laws, 1889, page 90.- We have therefore fixed the damages of claimant at the sum of one thousand dollars ($1,000.)


text:
    Theodore Bickerman v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—claim for damages arising from the construction of a dam by the State; statute of limitations. A claim for damages arising from the construction of a dam by the State must be presented within two years of the date of the closing of the dam or it will be barred by the statute of limitations.
    W. R. Fairbanks v. The State, ante page 1 followed.

   The petition of claimant was filed with the Auditor of Public Accounts on the 23d day of October, 1879.

The petition recites that the claimant is the owner in fee of the following described land: Lot two of the southeast quarter (S. E. ¼) of section thirty-six, containing 147.50; also the southeast quarter (S. E. ¼) of the southwest quarter (S. W. ¼) of section thirty-six (36), containing forty acres, all being in township thirteen north range nine east of the 4th P. M., Marshall county, Illinois.

The petition recites that these lands are bordering upon the Illinois river and that prior to the act complained of were susceptible of cultivation, raising thereon crops of grain; that in October, 1877, the State of Illinois had constructed a dam across said river near Copperas Creek which had permanently raised the level of the water in the river between three and four feet making, the lands of claimant wet and unfit for cultivation whereby it is claimed the claimant has been greatly damaged..

The proof taken has tended to show that claimant, had been damaged by the act of the State to some extent. The serious question is whether even conceding all that claimant states in his petition to be true, he has any lawful right to ask for an award against the State, by reason of the statute of limitations, which requires that' all unliquidated claims against the State be filed within two years after the cause of action had accrued. We-have found in a number of other cases where the proof was the same that the dam in the Illinois river at Copperas Creek which the State caused to be constructed was closed on the 21st day of October, 1877; that whatever was done by the State which tended to injure claimant was finished more than two years before the claimant’s petition was filed. So- that his cause of action, if any he had, was already barred by the statute of limitations. We have carefully considered the brief and examined the authorities cited by claimant’s counsel. We do not think the cases cited apply. We have before had occasion to discuss this question in the case of W. B. Fairbanks v. The State and in the opinion filed in that case stated the reasons and cited the authorities that compelled us to hold as we thought then and still think that this claim and those involving the same are barred by the statute of limitations, and for that reason our conclusion is that this claim should be rejected.


text:
    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 hatred 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 authority of the State of Illinois in the month of October, A. D. 1877, a dam was constructed across said river near Copperas Creek. That by reason of the construction of said dam the water in said river is piling 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 Copperas 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 Copperas Creek dam could injure this tract.

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


text:
    Jacob Jones v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damages caused by construction of dam by State. The Commission reviews the evidence and finds that the claimant is entitled to an award of $100 for damages to his land caused by the construction of Copperas Creek dam by the State.
   Jacob Jones the claimant in this case filed his petition on the 20th day of October, A. D. 1879, charging that on the 20th day of October, A. D. 1877, and before and since that time he was the legal owner of the north half of the northeast quarter (N. E. ¼) of section twenty-seven ; the southwest quarter of the southeast quarter of section twenty-seven; the northeast quarter of the northeast quarter of section thirty-four; and the northeast quarter of the southeast quarter of the northeast quarter of section thirty-four, all in township twenty-eight, north range three west. That said lands are all situated in the bottoms bordering on the Illinois river and all are subject to inundation from floods and high water in said river. That during the months of May to October, inclusive, of each year said river is usually at or near low water mark and the lands above described left dry and yielding large crops. That in the month of October, 1877, by virtue of the authority, of the State of Illinois, a dam was constructed across said river near Copperas Creek. That by reason of said dam having been built the water in said river has backed upon and over said dam and thereby most of said lands have become water soaked and soft to such an extent that they no longer bear animals with safety and have become unproductive, liable to frequent overflows and almost worthless and will so remain forever. That thereby claimant has been damaged seven hundred and thirty dollars.

To this petition the Attorney General pleads the general issue and the statute of limitations.

The construction of the Copperas Creek dam is claimed as the immediate cause of the damages to claimant’s lands. The dam was closed on the 22d day of October, A. D. 1877. Claimant’s petition was filed October 20, A. D. 1879, within two years after said dam was closed. The claim is not therefore barred by the statute of limitations.

Mr. Wilson the surveyor who was appointed by an order of the Commission to go upon and examine these lands and to report his findings has not made an examination of claimant’s lands.

An erroneous description of claimant’s lands in the original petition which has since been corrected by amendment will no doubt account for the surveyor’s omission to report in this case.

We find in this case a large amount of evidence going to show that the lands described in the amended petition are wet and for some cause less productive than they were prior to the construction of the dam. Quite a large number of witnesses produced are of the opinion that the wet condition of the lands since the construction of the dam is caused by the overflow or backing of the water up to such a point as to cause the under draining on this land to be affected and the land to become water soaked to such an extent that claimant’s lands are damaged from six to fifteen dollars per acre.

A large proportion of the lands on which damages are claimed are of eighteen or twenty feet above old low water mark and are near the bluffs where the wet condition is evidently caused by springs from the bluffs. We cannot see how it is possible for lands located fifteen feet above the top of the Copperas Creek dam to be damaged by the construction of that dam.

We find however that a small part of claimant’s lands are so low that in our opinion such part of said lands are to a limited extent damaged by the construction of the dam. We have fixed the amount of the damages of this claimant at one hundred dollars ($100.00.)


text:
    The Heirs of James Seward v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damage caused by construction of dam; when cause of action accrues. A cause of action for damages sustained by reason of the construction of a dam whereby land is innundated, accrues at the completion of the dam.
   James Seward filed his claim in the Auditor’s office of the State of Illinois, October 20, 1879, for damages to his land caused by and incident to the construction of a dam near Copperas Creek in the Illinois river by the State of Illinois.

The property by him claimed to be damaged was described as follows:

“The southeast quarter of section 22 contains 160 acres of which 150 acres are damaged by said dam to the extent of $4 per acre.”
“And the southeast quarter of the southeast quarter of section 27 containing 40 acres of which 20 acres are damaged to the extent of $5 per acre.”
“And the southwest quarter of the northeast quarter of section thirty-four (34) containing forty acres of which forty acres are damaged to the extent of $3 per acre by said dam.”
“And the northwest quarter of the northwest quarter of section thirty-five containing forty acres of which fifteen acres are damaged by said dam to the extent of $8 per acre.”
“All in township twenty-nine north range three west of the 3d P. M.” •

The claimant averred in his petition that he was the owner of the land on the 20th of October, 1877, and that said dam was constructed in that same month. There is no allegation as to the day of.the month when said dam was completed or the damages accrued.

Claimant also stated in his petition that his said lands were situated in the bottoms and low lands bordering on the Illinois river, and were subject to inundations from floods in said river. That during the months of May, June, July, August, September and October, in each year said river was usually at or near low water mark at such times said land was left dry and yielded large crops of grass and were of great value for hay and pasture and when under cultivation yielding large crops of com and other grains. That of the lands claimed to have been damaged, from twenty to forty acres had theretofore been farmed to corn and the remainder had been used for meadow and pasture. That the dam caused the water to rise opposite the land from two to three feet higher than it did before the dam was erected; with other allegations pertaining to the effect the building of the dam was supposed to have upon this land.

The total amount claimed was $1,020.00.

It appears that the said James Seward departed this life intestate and his death having been suggested and sufficiently made known to this Commission the claim now stands in the name of the heirs of the said James Seward without naming them.

The Commission having considered all the evidence in this case finds that the said claim was filed within two years from the time said dam was completed and that the cause of action arose at the completion of said dam and that the same is not therefore barred by the two years statute of limitation relating to claims of this character against the State.

Further considering the testimony in this case the Commission finds that the southeast quarter (S. E. ¼) of section twenty-two in township 29, north range 3 west of the 3d P. M., embraced in said claim has sustained damage on account of the erection of said dam to the amount of $300.00.

And that as to the southeast quarter of the southeast quarter of section 27 and the southwest quarter of the northeast quarter of section 34 and the northwest quarter of the northwest quarter of section 35 in said township and range no damages were sustained consequent upon the building of said dam.

The land in the southeast quarter of section 22 appears to have had an elevation of a little less than eight feet above the river at its original low water mark. It does not appear that it ever could have been successfully drained, but on account of the building of the dam became more subject to overflow than previous thereto and for that reason less valuable for pasturage.

The other lands appear to have an elevation, those in section 27 of from fifteen to nineteen feet above the river and are springy and boggy. Those lands in section thirty-four were divided by Grow Greek which seems to be higher along its banks than the surface of the land at a distance away on either side so that when the creek overflows the adjacent lands are made wet.

The land in section 35 consists in part of bluff and is springy and a little higher than the lands along Crow creek, the water in Crow creek being some sixteen feet higher than the water in the river. We are not satisfied that these conditions are consequent upon the building of the Copperas Creek dam and therefore reject that part of the claim and award to the heirs of the said James Seward the said sum of $300.00 as and for all damages sustained.


text:
    Jefferson Trickle v. The State of Illinois.

      Opinion filed October 29, 1891.

      1. Commision of Claims—not restricted to consideration of claims which can only be prosecuted in court of law. The statute does not restrict the Commission to the consideration of claims which can only be prosecuted in a court of law, and under the rules there prevailing in regard to proper parties.
    2. Same—claims to be determined according to equity and justice. The Commission of Claims is enjoined by the act creating it to determine all claims according to the principles of equity and justice, except when otherwise provided by the laws of the State.
    3. Limitations—theory upon which laws proceed. All limitation laws proceed on the theory that the party by lapse of time and omissions on his part has forfeited his right to assert his title in the law. All statutes of limitations also must proceed on the idea that the party has full opportunity to try his right in the courts.
    4. Same—statutes rest upon sound public policy. Statutes of limitations rest upon principles of sound public policy, and are not to be evaded except by the methods provided therein. If claimants stand by inactive and permit their claims to be barred, it is not the law, but the party, who is responsible for the hardships entailed.
    5. Same—statute runs against all claims except those sought to be enforced by government. The statute of limitations runs against all claims except those which are sought to be enforced by the government in its name and in its behalf.
    6. Same—government may avail itself of provisions of statute. The government, although not precluded by the statute, may nevertheless avail itself thereof in suits against it, where there is a statute authorizing individuals to bring suits against it.
    7. State Indebtedness—policy of State toward creditors. It has been the settled policy of the State for more than forty years to induce all persons having claims against it whether adjusted or not to present them that they may be satisfied in some manner.
   This claim was filed with the Auditor of Public Accounts, August 1, 1882. The claim is based upon an instrument partly in print, and partly in writing, which reads:

100 Issued on No. 754. 100
Office of the Board of Public Works.
Springfield, Ill.
No. 5545 B
March 18th, 1840.
Fund Commissioner of the State of Illinois.
Pay to the order of H. Fellows, Commissioner of the Board of Public Works, one hundred dollars, with interest from August 14th, 1840, until paid, at the rate of six per cent per annum and charge same to draft No. 754 dated July 15th, 1840.
Wm. Prentiss, Sec’y. J. Hogan, Pres.
100 100
Endorsed “Pay bearer,
H. Fellows, Com.”

It is alleged that said claim accrued at Springfield in the County of Sangamon in the State of Illinois, at the date of said instrument, and that the claimant has been the “owner of said instrument or evidence of indebtedness ever since some time in the fall of the year 1840,” and that he has had the same in his actual possession during the whole of the time since, except such time as it had been in the hands of his attorneys, Messrs. Hopkins & Hammond, for collection. That the principal with accrued interest remains due and unpaid.

That he purchased said claim for a valuable consideration of Martin B. Mason, of Knox county, Illinois, and received possession thereof from him. The Attorney General was notified of the filing of said claim. And the depositions of the claimant, Jefferson Trickle, and of Martin B. Mason were taken on the tenth or eleventh of August, 1882, in support of said claim. It appears that Trickle at the time the depositions were taken was seventy-seven (77) and Martin B. Mason seventy-four (74). It appears that Martin B. Mason was the son of Jacob Mason, and his administrator, and as such paid Jefferson Trickle among other funds certain Canal scrip which at that time was used and considered as money and so considered and used in that transaction. That he had three pieces of this scrip of a hundred dollars each, and that in June, 1840, he delivered one of them to Jefferson Trickle, son-in-law of Jacob Mason on his share of the estate. That Mason died in October, 1837. The scrip was received by the administrator after the death of Jacob Mason. Trickle testifies that he became the owner through Martin B. Mason in either November or December, 1840; that he received it from the administrator of Jacob Mason’s estate, in payment of one hundred dollars ($100.00) which he had deposited with said Mason in his lifetime with which to purchase a tract of land, but which had not been used for that purpose.

On the 20th of August, 1889, the Attorney General, filed his objections to the claim:

First—That the facts stated as the basis of the claim are insufficient to entitle the claimant to have it allowed.
Second]—That the claim was neither proved nor filed in the office of the Secretary of State previous to the 1st day of January, 1849, nor within two years from the time such claim may have arisen, as required by the statute in that behalf; and on August 4th, 1890, by leave filed an additional plea to the effect that the claim ought not to be allowed because more than twenty years elapsed after said claim accrued prior to the filing of said claim with this Commission and the commencement of the suit and that the same is forever barred by reason of the laches of said claim, and the statute of limitations.

It will be observed that the instrument upon which the claim was made is dated March 18th, 1840, is to bear interest from August 14th, 1840, and is to be charged to, or paid out of draft No. 754 dated July 15th, 1840.

There is no evidence explaining why it was to be paid out of a draft that was not to be issued for nearly four months subsequently, nor why it was made payable to the order of H. Fellows, Commissioner, nor upon what account he paid it out.

Counsel for claimant and the Attorney General seem to differ in their opinions under which act of the Legislature this paper was issued; the Attorney General contending :

First—The scrip claimed for was not issued by any one having authority to bind the State for the payment of money.
Second—Said scrip does not purport to bind the State or to be the obligation of the State for the payment of money.
Third—There is and was no authority to issue any scrip or drafts of this character which should be the binding obligations of the State.
Fourth—Said supposed scrip is only an order or draft for the transfer of funds from one proper custodian to another and is not and does not purport to be an obligation on the part of the State of Illinois, and neither creates a liability of the State to the officer named as payee in said draft nor to his assigns.
Fifth—The scrip was not negotiable and cannot be recovered upon by an assignee.

The Attorney General proceeds to argue that the draft or scrip in question, if legal, must be based upon the twenty-fourth section of the Act of February 27, 1837, relating to the construction of the Illinois and Michigan Canal; and shows quite satisfactorily that it cannot be supported as a valid document under the provisions of that Act.

The claimant insists that this scrip or draft was issued pursuant to the provisions of section ten, of the Act of February 1, 1840, providing a method for fully settling and closing up all claims and demands against the State which had grown out of its system of internal improvements, which section contains the provision that “the Board of Public Works shall also settle and adjust all dues and liabilities of every kind due and owing from the State under the provisions of the Act to establish and maintain a general system of Internal Improvements, approved February 27,1837, and the acts supplemental and amendatory thereto, and give drafts for the amounts so settled and adjusted on the fund commissioner: And when any person should receive drafts uncler the provisions of this: section, his contract should be settled.”

We are inclined to adopt the reasoning of the claimant on this point and hold that the paper in question might have been issued under the authority of that section.

We are also inclined to overrule the objection that “the paper in suit was not negotiable, and therefore cannot be recovered upon by an assignee in his own name.” We think it immaterial, whether the claim is presented by the original owner, or by his “legal representatives” in any sense of these words. We do not understand the statute to restrict the Commission to the consideration of claims which can only be prosecuted in a court of law, and under the rules there prevailing in regard to proper parties.

We hold it sufficient that the allowance and payment' of the claim would bar the claim by any other person.

We are enjoined by the act creating the Commission, to determine all claims according to the principles of equity and justice, except when otherwise provided by the laws of the State.

Act of 1877, Sec. 2.

We think a consideration of the several acts of the legislature pertaining to the funding and payment of the Canal indebtedness in connection with the evidence shows that paper of the character of that under consideration was in circulation among the people, and received and treated as legal; and if such was the contemporaneous construction of the laws, we think it should be adhered to now.

The question that gives the Commission most anxiety is whether the claim is barred by any statute or law of limitations, or laches of the claimant.

It is proper to inquire first, whether the State had provided a way for the claimant to enforce the payment of his claim or to procure an adjudication settling its validity.

All limitation laws proceed on the theory that the party by lapse of time and omissions on his part has forfeited his right to assert his title in the law. All statutes of limitations also must proceed on the idea that the party has full opportunity afforded to try his right in the court.

Cooley’s Constitutional Limitations 455-456;

Stearns v. Gittings, 23 Ill., 389.

We believe an examination of the statutes will show that persons holding claims against the State have always been provided with a remedy under the laws.

By an Act in force June 1,1829, it was made lawful for the Auditor of Public Accounts of the State of Illinois to be sued and to sue, to plead and to be impleaded, to answer and to be answered, to defend and to be defended in any court of record or other place where justice shall be judicially administered, in the name of the Auditor of Public Accounts for the people of the State of Illinois; and it was made the duty of the Attorney General to prosecute and defend all such suits. Appeals were provided for to the Supreme Court. If final judgment should be rendered against the Auditor it was his duty to forward a copy of the judgment and proceedings thereon to the next general assembly when if approved an appropriation should be made to satisfy it or such part as the General Assembly might deem just.

This Act was continued in force and is found in the revised statutes of 1845, Chapter 77, entitled “Officers,” page 394.

The same Act is found in the second volume of Purple’s Revision published in 1856 at page 787.

It is also included in the Revision of the laws, Scates, Treat & Blackwell, published in 1858, and found on page 797.

The same statute is also found in the third edition of the first volume of the statute edited by Gross, page 468, which is declared to contain all the general laws of the State. And received the sanction of the Legislature by an Act approved March 10, 1869.

These provisions of the Statute may have been con-tinned in force after the adoption-of the constitution of 1848 in compliance with section thirty-four (34) of Article III of that instrument providing that “the General Assembly shall direct by law in what manner suits shall be brought against the State.” We find no statute of limitations expressly governing actions against the State, except that of March 1, 1847, found in the first volume of Purple’s Compilation, page 482, and in that of Scates, Treat & Blackwell, page 1170.

This act is limited to unliquidated claims against the State. This statute was enacted, “So that future Legislatures may know what unliquidated claims do exist against the State, and the grounds on which they are founded.”

The claimant testifies that he never before made any effort to have this scrip paid by the State, that he always considered it secure and doing as well as he could with the money.

In claimant’s brief, filed September 11th, 1890, it is said the paper is an inland draft in due form, and by the payee endorsed to the bearer and put in circulation.

‘If this be the true construction it must be subject to the limitation laws applicable to such paper unless the statutes of limitation do not apply when the State is defendant.

Statutes of limitations were formerly regarded with little favor, and teh courts devised numerous expedients and theories for their evasion; but latterly they are considered as beneficial and resting on principles of sound public policy, and as not to be evaded except by the methods provided therein.

Wood on Limitation of Actions, p. 5, Sec. 4 and note.

It is said “There certainly can be no hardship in requiring parties to settle their business matters within certain reasonable periods; and if, with the sure prospect of losing the rights to a remedy thereon, they stand by inactive and permit their claim to be barred, it is not the law, but the party, who is responsible for the hardships entailed.”

Wood on Limitation of Actions, p. 6;

Fishery. Harnden I. Paine (U. S. C. C.) 61.

The statute is said to run against all claims except those which are sought to be enforced by the government in its name and its behalf.

Miller v. State, 38 Ala., 600;

Wood on Limitations, 92.

The government although not precluded by the statute, may nevertheless avail itself thereof in suits against it, where there is a statute authorizing individuals to bring suits against it.

Wood on Limitations, 93;

Booster v. State, 10 Wis., 454; II Coke, 68.

From a consideration of the various statutes relative to the State indebtedness we believe it to have been the settled policy of the State for more than forty years to induce all persons having claims against it whether ad- . justed or not to present them that they might be satisfied in some manner; the statute specially providing that the owner of any of this scrip may present it to certain public officers mentioned in the statutes and receive in exchange the bonds of the State in payment—see:

Act of February 1,1840, laws 1840, p. 79;
Act of February 21,1843, laws 1843, p. 54;
Act of March 3,1843, laws 1843, p. 62;
Act of March 1,1845, laws 1845, p. 31;
Act of February 27, 1847, laws 1847, p. 22;
Act of February 25, 1847, laws 1847, p. 23;
Act of February 16, 1847, laws 1847, p. 24;
Act of February 22, 1847, laws 1847, p. 165;
Act of February 14,1855, laws 1855, p. 161.

We therefore hold that the claim is barred by the statutes of limitations and laches of the claimant as insisted upon by the State in its plea filed August 4,1890.

The claim is therefore rejected.

E. D. Blinn, President.

It. D. Adams, Commissioner.

W. S. Kay, Commissioner.

I agree with the above written statement of the reasons for the determination reached.

I am also of the opinion that the Commission has no jurisdiction of the claim as it is presented.

It seems to me if it ever was a valid claim against the State that when issued it was an adjusted claim, and not embraced within any of the clauses of section 2 of the Act in force July 1, 1889, conferring jurisdiction on this Commission'; unless under the first clause of section 2 the claim had been specially referred to the Commission by one or the other of the houses of the General Assembly.

I think the claim should be presented to the Legislature, when, if satisfied the paper evidenced a legal demand, it should determine whether public policy demands that the statute of limitations should be enforced; especially as the State has never directly declared that any other statute of limitations shall be enforced in its favor than the Act of March 1, 1847, relating to unliquidated claims, and that class of claims embraced in the second clause of the second section of the Act of July 1, 1889, creating the Commission of Claims.

W. S. Kay, Commissioner.


text:
    Heirs of Isaiah Jones, Deceased v. The State of Illinois.

      Opinion filed September 8, 1892.

      Waters—damage to land caused by construction of dam. Court reviews evidence and finds claimant not entitled to damages.
   Isaiah Jones filed his cliam October 20, 1879, for damages to his land and property caused by and incident to the construction of a dam near Copperas Creek in the Illinois river, by the State of Illinois. It appears that the claimant died since the filing of said claim, and it is now being prosecuted by the heirs and legal representatives of said claimant.

The land alleged to be damaged is described as the east half (E. ½) of the northeast quarter (N. E. ¼) of section three (3) in township twenty-eight (28) north of range three (3) west, of the 3d P. M., except twenty (20) acres off of the north end, containing sixty (60) acres; forty (40) acres of which is claimed to have been damaged to the extent of ten (10) dollars per acre.

The allegation of the complainant is, that all of said lands are situated in the bottoms and low lands bordering on the Illinois river, and subject to inundation from floods and high water in said river. That the dam at Copperas Creek lifts the water in the river opposite these lands about two and one-half (2½) feet higher than it would be but for the dam; thereby causing said lands to become water soaked and soft to such an extent that they will no longer bear animals with safety, and have become unproductive, and almost worthless, and will so remain forever.

To this claim the Attorney General of the State on the 10th of August, 1880, filed a plea insisting upon the statute of limitations.

The Commission from the evidence before it, does not find that said claim is subject to the bar of the statutes, •but from a careful consideration of all the evidence in the case, finds that the claim for damages is not sustained. It appears from the evidence to the satisfaction of the Commission, that said lands are from eighteen (18) to twenty (20) feet higher than the low water mark of the river opposite said lands after the construction of said dam. And while the evidence as to the opinions of the witnesses is conflicting as to whether said lands sustained any damage by the construction of said dam, this Commission cannot arrive at the conclusion from the evidence in the case, that if there has been any change in the condition or productiveness of said lands since the construction of said dam, it is attributable thereto. And therefore deny the claim; and award the claimants nothing.


text:
    George E. Turkington v. The State of Illinois.

      Opinion filed November 1, 1892.

    Statute car Limitations—is a bar to all unadjusted claims not filed with Auditor of State within two years from the time they accrue. Claim growing out of service said to have been rendered by claimant and moneys by him expended in recruiting soldiers for service in war of the rebellion, is barred by statute of limitation if not filed with Auditor of State within two years from time same accrues.
   The petition in this case shows that the cause of action or claim to have arisen in 1864, and grew out of services said to have been rendered by claimant and moneys by him expended in recruiting soldiers for service in the war of the Rebellion.

The claim was filed with the Auditor of State on the 24th day of April, A. D. 1891.

The plea of the statute of limitations is interposed, and the only question which the Commission deem it necessary therefore to consider is, whether the claim is barred by the Act of 1847.

This Commission has uniformly held that said act applies and is in force, and is a bar to all unadjusted claims not filed with the Auditor of State within two years from the time they accrue.

We therefore hold that this claim is barred and that claimant is not entitled to an award.

Claim rejected.


text:
    William W. McLaughlin, et al v. The State of Illinois.

      Opinion filed November 15, 1892.

    1. Waters—claim for. damages to land through construction of dam—rwhen not barred. A claim for damages to land caused by overflow of river as a consequence of the construction of a dam by the State of Illinois is not barred by statute of limitations if filed within two years after the same accrues.
    2. Same—evidence entitling to award. The Court reviews the evidence and holds that claimant’s lands were damaged by the overflow or inundation occasioned by the construction of a dam by the State of Illinois.
   The original petition in this case was filed October 20, 1879, on the part of Lewis McLaughlin, Harless McLaughlin, Claudius McLaughlin, Archibald McLaughlin, and Clara E. Gates.

Upon trial of this cause, on motion of claimants, the petition is amended making Charles McLaughlin, Mary McLaughlin, Marcus McLaughlin, Hiram McLaughlin, Ada McLaughlin, William McLaughlin and Darwin McLaughlin as the only heirs of William McLaughlin who departed this life intestate on the 1st day of July, A. D. 1876, co-complainants herein.

The petition charges that, on the 20th day of October, A. D. 1877, and before and since that time, claimants were, and have been, the undisputed owners of the lands fully described in the claim attached to the petition.

The lands described in the claim are as follows, to-wit:

The N. half S. W. fourth Sec. three T. 11 N. R 9 E;
The S. half N. W. sec 3, T. 11 N. R. 9 E;
The N. E. fourth M W. fourth see. 3, T. 11 N. R. 9 E;
The N. W. fourth N. E. fourth sec. 10, T. 11 N. R. 9 E;
The E. half S. E. fourth, sec. 3 T. 11 N. R. 9 E.

This petition further charges that all of these lands are situated in the bottoms and low lands bordering upon the Illinois river, subject to inundations from floods and high waters in said river. That during the months of May, June, July, August, September and October in each year, said river is at or near low water mark and said lands left dry, yielding large crops of grass of great value, for hay, pasture, and produced large crops of corn and other grain. That seventy-two acres of said land had been farmed in com and the remainder used for meadow and pasture.

That in the month of October, A. D. 1877, a dam was constructed across the said river near Copperas Creek, under and by virtue of the authority of the State of Illinois.

That said dam lifts the water at said Copperas Creek six and one-half feet higher than before the construction of said dam, and in the river opposite the, lands of claimants described in said petition three feet higher than it would be but for said dam. The petition further states that said river is subject to summer freshets, raising the water in said river two to three feet, which, without said dam, were harmless to said lands, but with said dam makes what before said dam was built a freshet of two to three feet, now from four and one-half feet to six feet; the increase being caused wholly by the construction of said dam; and the piling and backing up of said river now from said dam and caused by the construction of said dam.

That thereby the claimants’ lands have become water soaked and soft to such an extent that they no longer bear animals with safety and have become unproductive^ liable to frequent destructive overflow and are worthless and will remain so forever whereby they have sustained damage to the amount of fifteen hundred and sixty-eight dollars.

August 9th, 1880, the Attorney General, acting for the State filed three pleas.

The statute of limitations is interposed and the claim is set up on the part of the State that the facts are insufficient to entitle the claimants to the allowance sought.

The Commission has heretofore decided that unless claims are presented for adjustment within two years they are barred.

This claim arises on account of the construction of the Copperas Creek dam, backing water over the claimants’ lands, so that on that account said lands have become worthless. This dam was constructed on the 22d day of October, A. D. 1877, and this petition was filed October 20, 1879, which was within two years from the construction of said dam. If, therefore, any cause of action in fact, accrues to the claimants such claim is not barred by the statute of limitations.

There are then three questions remaining to be determined. They are: First—Were the lands damaged by the overflowing or inundation occasioned by the construction of said dam. Second—If so were the claimants at the time of such damage the legal owners of said lands. Third—The amount (if any) of damage.

After a careful examination of all the evidence in this case we are of the opinion that the construction of said dam so caused the water in the river to overflow and water soak a portion of claimants land as to render it less productive and less valuable for the purpose for whicli said lands are used. It appears from the evidence on file in this case that one H. A. McLaughlin, was the legal owner of the lands described in claimants’ petition. That H. A. McLaughlin departed this life prior to the construction of said dam, intestate, seized of said land.

That he left surviving him Lewis McLaughlin, Harless McLaughlin, Claudius McLaughlin, Archibald McLaughlin, William McLaughlin and Elizabeth Ray, as his children and only heirs. That after the said H. A. McLaughlin departed this life Elizabeth Ray and William McLaughlin both departed this life intestate. That Elizabeth Ray left surviving her as her only heir claimant Clara B. Gates, and that William McLaughlin left surviving his as his only heirs at law Charles McLaughlin, Mary McLaughlin, Marcus McLaughlin, Hiram McLaughlin, Ada McLaughlin, William McLaughlin and Darwin McLaughlin, all living and claimants herein.

We further find that the claimants, as heirs of the said H. A. McLaughlin have held open, notorious and peaceful possession of said lands, and have paid the tax thereon from the time of the death of the said H. A. McLaughlin to the present time; and that their title to said lands has never been disputed.

We find, therefore, that the claimants are the legal owners of said lands in the following proportion as tenants in common.

Lewis McLaughlin, Harless McLaughlin, Claudius McLaughlin, Archibald McLaughlin and Clara E. Gates each one-sixth of said land, and the heirs of William McLaughlin hereinbefore named one-sixth of said land.

The evidence in this case and the survey both show that the N. half S. W. sec. 3 T. 11 N. R. 9 E., and the S. half N. W. sec. 3, T. 11 R. 9 E., are both low lands, and that the raising of the low water mark in the river near this land, caused by the construction of the dam has partially destroyed the productiveness of these two tracts, and rendered some twenty acres of but little if any value. We have, therefore, fixed the amount of damage to be paid claimants at the sum of four hundred dollars, said sum to be paid claimants as their interest in said lands are set forth herein.


text:
    Isaac Hoge v. The State of Illinois.

      Opinion filed November 15, 1892.

      1. Statute of Limitations—unadjusted claims must be filed within two years. Claims must be filed with the Auditor within two years after cause of action accrues.
    2. Same—what acts will not take claim out of statute of limitations. The fact that claimant’s attorney presented his claim to the Secretary of State, and to other officers not authorized to receive it, within two years from the time the cause of action accrued, does not take the claim out of the statute of limitations.
   The claim filed in this case is for damages done to crops and lands caused by a break on the Illinois and Michigan canal. The break in the canal and the damages done to claimant’s land, occurred on the 23d day of July, A. D. 1883. The petition was filed with the Auditor on the 5th day of August, A. D. 1889.

The Attorney General on the part of the State files his plea interposing as a defense the statute of limitations, and by agreement of the parties this cause is submitted for decision upon the plea thus filed.

The facts set forth in the affidavit of E. Sanford, attorney for the complainant, is relied upon as an excuse for failing to file the claim written two years after the cause of action accrued.

It appears from the affidavit as well as the petition on file that the break in the canal occurred on the 23d day of July, 1883. On the 12th day of the following September the claimant employed E. Sanford, to take such steps as were deemed necessary to procure for claimant compensation for said damage. In February, 1885, claimant’s attorney presented a petition, such a one as is filed in this cause, to the Secretary of State, and requested secretary to file said petition. Upon being informed that the proper place to file said claim, was with the Auditor, the claimant thereupon, applied to that officer to have said petition filed. Upon a representation, secured from some one in the Auditor’s office, the claim was withdrawn, and not then filed with the Auditor. The claim was presented to two of the former Commissioners of Claims who it seems advised claimant to present the claim to the Canal Commissioners and it was afterwards presented to the General Assembly of the State of Illinois, and finally on the fifth day of August, 1889, claimant filed his petition with the Auditor, and thus for the first time it came here for a hearing. This Commission has repeatedly decided that claims not filed with the Auditor within two years from the time the cause of action accrued are barred by the statute of limitations, and we are of the opinion that the sevearl acts set forth in the affidavit, filed in this case, are not such as amount to a filing of such claim, within two years. The claimant must be held to have known that it was his duty to- have filed his claim within two years after his cause of action accrued, with the Auditor of Public Accounts, and not having done so, his claim is barred by the statute of limitations.


text:
    Charles P. Johnson v. The State of Illinois.

      Opinion filed November 20, 1894.

    Live Stock Commission—act of 1887 concerning board confers power to employ necessary clerics. Section 13 of the act of 1887 concerning the Live Stock Commission which provides that the members of the Board shall receive the sum of $5 per day, and necessary traveling expenses, and other incidental expenses necessarily incurred in the performance of their duties under this act confers upon the Commissioners the power to employ a clerk or secretary if necessary to do so.
   The facts of this case are uncontroverted, and from the evidence before us may be briefly stated, as follows : Claimant was duly appointed and acted as clerk or secretary of the State Board of Live Stock Commissioners from December 29, 1886, to June 30, 1893, performing the duties usually appertaining to the position of clerk or secretary. On January 4, 1888, said Board passed a resolution fixing the salary of this employe at $150 per month, which thereafter remained unchanged. Claimant has received his entire compensation excepting a balance of $200 which amount is conceded to be due and unpaid to him, provided his compensation is considered at the price of $150 per month.

Neither party offered evidence as to the value of claimant’s services. Section 13 of the act of 1887, concerning the Live Stock Commission, provides that the members of the board shall receive the sum of $5 per day, and necessary traveling expenses, and other incidental expenses necessarily incurred in the performance of their duties under this act. We think this act conferred upon the Commissioners the power to employ a clerk or secretary if it was necessary so to do. All of the evidence before us is to the effect that it was necessary to have such officer and even in the absence of evidence upon this point it would be reasonable to presume that the necessity therefore existed. The Commissioners having fixed the salary of such officer at $150 per month, and such having been the salary of the position for more than six years prior to the termination of claimant’s employment in that capacity, we must in the entire absence of any evidence of fraud or collusion or even unreasonableness of such amount, conclude that the same is reasonable, and that whatever balance is due to the claimant for such services at such rate should be paid by the State.

It is therefore considered by the Commission that the claimant be awarded in full of his damages by reason of his aforesaid claim against the State of Illinois the sum of $200.