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    William Neuhalfen v. The State of Illinois.

      Opinion filed September 10, 1889.

      1. Statute of Limitations—unliquidated claims must be filed within two years. Unless an unliquidated claim for damages is filed within two years after the cause of action accrues, it is'barred by the statute of limitations.
    2. Actions—damages through construction of dam; when action accrues. Cause of action for overflow of lands caused by erection of dam across river accrues at the time of completion of the dam.

      Fairbanks v. the State, ante page 1 followed.
   The claimant in this case filed his claim against the State of Illinois, October 30, 1879, with the Auditor of Public Accounts.

The petition filed with this claim, states in substance that on October 20, 1877, and before and since that time he was the owner of the southeast fractional quarter of section 20, in township 13, north of range 10, east of the 4th P. M., in Marshall county, Illinois, containing one hundred and twenty-one acres and that the land was situated in the bottoms and low lands bordering upon the Illinois river, subject to inundation from floods and high water in said river; that during the months of May to October inclusive in each year said river is usually at or near “low water mark,” and the land described left dry yielding crops of grass valuable for pasture and hay and when under cultivation, profitable crops of grain being raised. That in the month of October, 1877, a dam was constructed across the Illinois river near Copperas Creek under and by virtue of the authority of the State of Illinois, raising the water at said dam about six feet making the low water mark at said dam some six feet higher than before the construetion of the dam. and in the river opposite the lands of the claimant two or three feet higher than it would have been but for said dam; that before the building of said dam a raise in the water by summer rains was harmless to said land but since the building of the same, raising the water from four and one-half to six feet, causingthe land of claimant to become water soaked, soft and spongy, and making his land liable to frequent overflows and unproductive.

The Attorney General has filed a plea of the statute of limitations in answer to said claimant’s petition.

We have had occasion in the case of William R Fairbanks for the use of the First Rational Bank of Lacón v. The State of Illinois, to pass upon the question of the statute of limitations as applied to this class of cases where the claims were unliquidated and decided in that case that unless the claim was filed with the Auditor within two years from the time the cause of action accrued that under the statute of limitations of 1847, the claim would be barred. We also decided in that case that the cause of action accrued from the time the dam of Copperas Greek was completed which caused the level of the water to be permanently raised in the Illinois river so as to damage the lands adjoining, which was not later than October 22, 1877. This claim was not filed until October 30, 1879—more than two years after the cause of action had accrued. We do not see anything that excepts this case from the. law as applied in that case. While it may seem a hardship to this claimant, the merits of whose case we have not examined, we have no discretion under the law as we understand it, and are compelled to hold that his claim is barred by the statute of limitations.

Our conclusion is that this claim is barred by the statute of limitations above referred to and for that reason should be rejected.


source: Caselaw Access Project

license: Public Domain

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    Frank D. Shafer v. The State of Illinois.

      Opinion filed September 10, 1889.

      Waters—damages to land by construction of dam by State. In order to entitle a claimant to an award against the State for damages to land caused by the construction of a dam by the State, the proof should be clear and unequivocal as to the damage sustained and what appears to be merely speculative should be rejected.
   The claimant in- this case filed his claim against the State of Illinois with the Auditor of Public Accounts on the 20th day of October, A. D. 1879.

The petition filed with his claim states in substance that on the 20th day of October, A. D. 1877, and before and since that time he was the owner of lot one of fractional south half of section thirteen in township thirty, north of range three, west of the 3d P. M., in Marshall County, Illinois, containing 85 and 54-100- acres.

That said land is situated in the bottoms and low lands bordering upon the Illinois river, 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 yielding crops of grass for hay and pasturage and when under cultivation, crops of corn.

That in the month of October, 1877, a dam was constructed across the Illinois river near Copperas Creek by virtue of the authority of the State of Illinois; that the dam raises the water at Copperas Creek six and one-half feet thereby raising the level of the water in the river opposite claimant’s land between two and three feet higher than it would be but for said dam. That the summer freshets which only raised the river two or three feet which did not affect his land, since building said dam, raised the water four and one-half to six feet; thereby the land of claimant became water soaked, soft and spongy and rendered the same unproductive, liable to frequent destructive overflows and will so remain forever; that this land has been damaged two hundred and fifty dollars.

The proof taken shows that prior to October, 1877, the State of Illinois had constructed a dam substantially as stated in the petition, that was finally closed on the, 21st day of October, 1877, causing a raise in the level of the water in the river adjoining claimant’s land between two and three feet, which always continues; this is shown not only by the evidence taken by the claimant but by the report- of Robert Wilson a civil engineer appointed by the Commission of Claims in 1882 to specially examine these lands and to ascertain the effect of the building of this dam, upon the lands of various claimants.

It appears from the evidence that nearly, or quite, one-third of the tract described is “up-land” above high water mark; at the foot of these high lands where the same joins the bottom or low lands, the ground was naturally wet and boggy; the remainder of the land could not have ever been very good land; yet the evidence tends to prove that by the construction of this dam and the raising of the level of the water in the river, a part of this land has been to some extent injured and damaged. The exact amount of damages sustained is not readily ascertainable from this evidence. While the State had an undoubted right to make the improvement by constructing a dam in a stream like the Illinois river, if in so doing the lands of persons adjoining the river, were permanently injured, the State ought, at least, in equity, to make such compensation as the proof shows clearly to have been sustained.

We think in this class of cases that in order to entitle the claimant to an award against the State the proof ought to be clear and unequivocal as to the damage sustained and what appears to be merely speculative ought to be rejected.

Our conclusion is that the land of claimant described has been damaged one hundred dollars ($100.00) and that he is entitled to an award against the State for that amount.


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    John J. Merdian v. The State of Illinois.

      Opinion filed September 10, 1889.

    Statute of Limitations—When claim is barred by. When damage is alleged to have been caused by the construction of a dam which was completed Oct. 21, 1877, and claim is not filed within two years from that date, it is barred.
   The petition in this case alleges that the claimant is the legal owner of the northwest quarter section 29, the southwest quarter (fractional) 29, the southeast quarter section 30, and eighteen acres off the east side of the southwest quarter section 30, all in township thirteen, north of range ten, east of the 4th P. M., in Marshall county, Illinois.

That in the month of October, A. D. 1877, by authority of the State of Illinois a dam was constructed across the Illinois river at or near Copperas Creek; that by means of the construction of said dam the water in the river has been made to overflow said lands; which have thereby become water soaked and soft and unproductive and almost worthless and that thereby claimant has been damaged to the amount of $880.

The Attorney General on behalf of the State, answering says, the facts stated as the basis of said claim are insufficient to entitle the claimant to the allowance sought. That said claim was not filed with the Auditor of State within two years as required by the statute in such cases provided and that therefore said claim is barred by the statute of limitations, etc.

The Copperas Creek dam was completed on the 21st day of October, A. D. 1877. The claim in this case was not filed as the law provides within two years after the construction and completion of said dam, and is therefore barred by the statute of limitation.

For further reasons see opinion filed in the case of Wm. R. Fairbanks, for use of &c., against the State of Illinois.


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    Henry Fisher v. The State of Illinois.

      Opinion filed September 10, 1889.

      Waters—damages caused by construction of State Dam. The Commission reviews the evidence and finds that the claimant is entitled to an award for damages caused to his land by reason of the construction by the State of a dam in the Illinois river.
   This claim was filed with the Auditor of Public Accounts of the State of Illinois on the 20th day of October, A. D. 1879, for the sum of $268, and at this August session of the Commission of Claims was awarded the full amount claimed,

Claimant’s demand is for injury to lands owned by him along the Illinois river above the Copperas Creek dam, which was built by the State and completed on the 21st day of October, A. D. 1877. The claim was therefore filed within two years from the time the cause of action arose, and is not therefore barred by any statute of limitation within the knowledge of this Commission.

Upon the consideration of the evidence on file with the claim and after hearing and duly considering the arguments on behalf of the claimant and of the State by the respective counsel for the same, the Commission were fully convinced .that the claim was just to the amount awarded.


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    Henrietta Schultz v. The State of Illinois.

      Opinion filed September 10, 1889.

    1. Practice—change of claimant’s name. Change of given name of claimant after claim filed does not change cause of action.
    2. Statute of Limitations—when claim is not barred by. Claim filed April 20, 1880, for injuries to land caused by dam erected by State October 21, 1877, is barred by statute of limitations.
   This claim was filed by John G. Schultz of Marshall county, Illinois, with the Auditor of Public Accounts of the State of Illinois, on the 20th day of April, A. D. 1880. The Attorney General of the State was notified and the claimant took and filed his proofs in July of the same year.

At the present session of the Commission, Fred S. Potter, who appeared as attorney for the original claimant, John G. Schultz, filed his motion asking leave to amend the original petition so as to substitute the name of “Henrietta” instead of “John G.” wherever the name “John G.” appears, and supported said motion by affidavit, suggesting that the claim had been filed in the name of John G. through mistake. Leave was given pursuant to the motion and the claim amended accordingly.

It is not considered by the Commission that said amendment makes the claim a new one in the sense that it should be considered as having been filed as an original claim at this session, but that the cause of action, as now presented is identical in substance with the one originally filed. And the Commission now takes and considers this claim in the name of Henrietta Schultz the same as if originally filed in her name.

The claim is for damage averred to have been sustained to her land, caused by and incident to the construction of a dam near Copperas Creek, in the Illinois river, by and under the authority of the State of Illinois; that claimant was the owner of the southwest quarter of the southwest quarter of section four (4) in township thirty (30) north of range two (2) west of the.3d P. M., in Marshall county, Illinois, on the 20th day of October, A. D. 1877; that said land was bottom or low land lying along or near the Illinois river, and that said dam at Copperas Creek was constructed by the State in the month of October, A. D. 1877.

To this claim the Attorney General of the State filed a plea on the 10th day of August, 1880, among other things insisting upon the two years limitation law requiring the claim to be filed with the Auditor and proved up within two years from the time such claim may have arisen.

The Commission finds from the evidence on file and from the public records of the State that said dam was completed about the 21st of October, 1877, and as matter of law that said claim arose at the completion of said dam, and that said claim is barred by the act of March 1, 1847, .session laws, of .1847, page. 32. The same act may also be found in a compilation of the Statutes by Scates, Treat and Blackwell at page 1170,- and published in 1858 by authority of the State. For more particular reasons and discussion as to the applicability of the said act to this case reference may be had to the claim of William B. Fairbanks for use of the First National Bank of Lacón v. The State of Illinois, being number one of the claims determined at this session.

This claim is therefore rejected and no award made to the claimant for the above reasons.


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    Peter Taemmes v. The State of Illinois.

      Opinion filed September 10, 1889.

      Waters—damage caused Toy construction of dam. Commission, reviews evidence and holds that in consequence of the building of a dam by the State of Illinois across the Illinois river, claimant’s lands were damaged by said dam causing the water to overflow claimant’s land.
   This claim was filed by the claimant with the Auditor of Public Accounts of the State of Illinois on the 20th day of October, A. D. 1879, for injury said to have accrued to claimant consequent upon the building by the State of a dam across the Illinois river near Copperas Creek, said dam causing the water to stand at a height opposite claimant’s lands lying along and near the river above said dam.

The claim was heard upon the evidence on file and argued on behalf of claimant by his attorney, Fred S. Potter, and on behalf of the State by Hon. George Hunt, Attorney General, and due consideration given the same, and claimant was awarded the full amount of his claim, $1,000.

The Commission were fully satisfied from the evidence that claimant owned the premises at the time said dam was completed, October 21, 1877, and that his claim was filed and proven up according to law and in time to prevent the bar of any statute of limitation in matters of claims against the State; and that in consequence of the building of said dam and its effect upon the river and the river upon said land in rendering it less suitable for cultivation, the value of said land was lessened to the full extent and amount of $1,000.


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    Daniel B. Weir v. The State of Illinois.

      Opinion filed September 10, 1889.

      Waters—damage to lands by construction of State dam. Where State constructs a dam in a stream like the Illinois river and lands adjoining are permanently injured for future use, the State ought in equity to make such compensation as would pay the owner for the actual damage shown to have been sustained.
   The claimant in this case, filed his claim against the State of Illinois with the Auditor of Public Accounts on the 20th day of October, 1879.

The petition filed with his claim states in substance that on the 20th day of October, 1877, and before that time claimant was, and had been, the owner of the west one-half (W. ½) of the southeast quarter (S. E. ¼) of section thirty-five in township thirty, north of range three west of the 3d P. M., in Marshall county, Illinois, containing eighty acres; that all of said land is situated in the bottoms and low lands bordering upon the Illinois river, subject to inundation from floods and high water in said river; that during the months of May to October, inclusive, said river is usually at or near “low water mark” and the lands of claimant dry, producing grass for hay and pasture under cultivation, crops of corn and other grain; that in the month of October, 1877, a dam was constructed across the Illinois river at Copperas Creek under and by virtue of the authority of the State of Illinois, that raised the water at the dam .some six and one-half feet and raising the water opposite the lands of claimant from two to three feet more than it would have been but for said dam; that the summer rains raising the water in the river two to three feet, were harmless to said land but with said dam make a raise in the water of four and one-half to six feet, by means thereof causing the lands of claimant to become flooded, soft and spongy, liable to frequent over-flows and rendering the land unproductive for any purpose, damaging the land as it is claimed three hundred and fifty dollars.

The evidence in this case tends to support the allegations in the petition showing that of the eighty acres of land owned by claimant about sixty acres had been to some extent damaged. It appears from the evidence that this land was quite low; most of it sparsely covered with trees; hay had been cut on about 20 acres, the rest was used for pasture; no part of it ever cultivated or attempt made to raise grain.

By the construction of this dam the level of the water in the river was raised causing permanent injury and damage to the land for the purpose for which it had been used. The right of the State to construct a dam in a stream like the Illinois river, is clear; yet, where the lands adjoining are permanently injured for future use the State ought, in equity, to make such compensation as would pay the owner for the actual damage shown to have been sustained.

We think the proof in this case tends to show that the lands of claimant have been permanently damaged two hundred and twenty dollars ($220.00) and that he is entitled to an award against the State for that amount.


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    Henry E. Wier v. The State of Illinois.

      Opinion filed September 10, 1889.

      Damages—overflow of lands through construction of dam. Court reviews evidence and holds claimant is entitled to recover.
   This claim was filed on the 20th of October, A. D. 1877, with the Auditor of Public Accounts of the State of Illinois, for damages to lands owned by claimant lying along the Illinois river in the bottoms above Copperas Creek dam built by the State and completed October 21, 1877.

The claim was proven up according to law, due notice having been given the Attorney General as required by law. Upon hearing the arguments of counsel on behalf of claimant and of the Attorney General on behalf of the State, and upon due consideration thereof and of the evidence on file it was considered by the Commission that claimant had sustained his demand to the extent of $150.

It was determined and found by the Commission that claimant only owned at the time of the completion of said dam about 62 acres of the west side of the fractional northwest quarter of section two (2) in township 29 north of range 3 west of the 3d P. M., and that it was not damaged to exceed the sum awarded.

The evidence in the case is conflicting, and the Commission found it impossible to reconcile all the various ’ statements of the witnesses on the part, of the complainant with themselves nor with the views and report of the engineer appointed by a former Commission under the Act of the General Assembly, in force July 1, 1881; but upon the whole were satisfied that claimant had sustained damage to some extent and that he was justly entitled to the amount awarded and no more.


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    Charles H. Stilt, et al. v. The State of Illinois.

      Opinion filed January 7, 1890.

    1. Statute of Limitations—act of 1847 still in force. The statute of limitations act of 1847 is still in force.
    2. Same—Unliquidated claims must he filed within two years after cause of action accrues. Unliquidated claims must he filed within two years after the' cause of action accrues or they are barred by the statute of limitations.
   The petition filed in this cause charges that the petitioners are the owners in fee of the southwest quarter of section one in township seven, north range seven, east of the 4th P. M., containing 153 acres. That prior to the construction of the Copperas Creek lock and dam said lands were only subject to occasional overflows from the waters of the Illinois river and then only for such short times and at times of extreme high water and early in the spring of the year. That prior to the erection of said lock and dam the overflow did not interfere with the cultivation of said lands.

The petitioners charge that since the erection of said lock and dam that the flow of the water in said Illinois river is so retarded from its natural and former course that said river overflows its banks and by such overflow caused by the erection of said dam the petitioners’ lands are so overflowed as to render the greater part thereof unfit for use. That since the erection of said dam the water remains so near the surface of said lands as to render said tract worthless for crops and so as to destroy all crops on said lands. The damage claimed in this case is $800.00.

The Attorney General on behalf of the State flies a plea interposing the statute of limitations as a defense to this claim.

The statute of 1889, page 90, provides that the Commission of Claims shall have power to hear and determine “all claims against the State for the taking or damaging of private property by the State for public purposes in the construction or for the use of any State institution, river, canal, or other public improvement, which have not been already barred by any statute or law of limitation.”

An act to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, is still in force. This act provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claim may have arisen; and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.

The petition was filed in this case on the first day of May, "A. D. 1880. Claimants’ demand is for damages occasioned by the erection of the Copperas Creek dam. The Copperas Creek dam was completed and closed on the 21st day of October, A. D. 1877, more than two years before the petition was filed in this cause. The petitioners claim is therefore barred by the statute of limitation, and for that reason is rejected.

For further particulars reference is had to the opinion filed in the case of Wm. R. Fairbanks for the use of the First National Bank of Lacon. (See page 1 ante.)


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    Lemuel T. Barton v. The State of Illinois.

      Opinion filed January 7, 1890.

    1. Commission of Claims—power conferred upon by statute creating. The statute creating the Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any State institution, river, canal, or other public improvements which have not been already barred by any statute or laws of limitations.
    2. Statute of Limitations—provision of act of 1847. An act of the General Assembly of the State of Illinois to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claim may have arisen, and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.

      Fairbanks v. the State, ante page 1 followed.
   The petition filed in the above case alleges that the claimant, Lemuel T. Barton, is the legal owner of the lands described in the petition, to-wit: The west half (W. ½) of the northeast quarter (N. E. ¼) of section thirty-six (36) in township eight (8), north range seven (7), east of the 4th P. M.

That for years prior to the erection of the Copperas Creek dam these lands had been farmed and cultivated; that only a part of said lands were subject to overflow before said dam was built and then only at times of extreme high water. That the overflow prior to the erection of the dam did not in any way prevent the cultivation of said land. That by reason of the erection of the Copperas Creek dam the water from the Illinois river has so overflowed the said land as to render said land entirely worthless.

The Attorney General on behalf of the State files his plea setting up as a defense the statute of limitations.

The statute creating the Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any State institution, river, canal, or other public improvements which have not been already barred by any . statute or law of limitations.

An Act of the General Assembly of the State of Illinois to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts Avithin two years from the time such claim may have arisen, and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.

The petition was filed in this case April 16,1880, more than two years after the erection of Copperas Creek dam, said dam having been completed October 21, 1877; and the only claim for damages in this case is the construction of said dam. The claim not having been filed with the Auditor of Public Accounts as required by the statute of 1847, is uoav barred by the statute of limitations, and for that reason is rejected. For further particulars reference is had to the opinion filed in the case of Wm. E. Fairbanks for use of First National Bank of Lacón against the State of Illinois.


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    Arthur Birket v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—Damages to property caused by erection of dam by authority of State and consequent overflow of Illinois river. Held that claim filed two years from date of opening of dam is barred by statute of limitations.
   This cause was submitted on plaintiff’s original and amended petition; said original petition filed in the office of the Auditor of State of the State of Illinois the 16th day of April, 1880, and on the plea of the statute of limitations thereto filed in said Auditor’s office, August 10,1880, and the testimony contained in the depositions on the part of the claimant and documentary evidence on the part of the State as to the time of the completion of the lock and dam on the Illinois river at or near Copperas Creek in said State.

Petitioner claims for injury done to certain lands owned by him at and before the completion of said lock and dam and which are particularly described in his petition, which said damages are alleged to have been caused by raising the level of the water in the Illinois river opposite said lands, subjecting them to overflow and to so remain at times when they would not have been but for the effect of said dam on said river, and also causing said lands to become soaked with water and to remain so at such times and for such lengths of time as to impair their value and use for agricultural purposes.

The Commission finds that said dam was erected by authority of the State of Illinois and that it was completed on or about the 21st day of October, 1877, and that it did cause a rise in the water level of said river opposite petitioner’s lands but whether they were injured thereby no opinion is expressed. The Commission further finds that said claimant’s cause of action, if any he has or had, arose and was complete when said dam was finished, and therefore that said claim was not filed within two years from the time it arose.

The Commission further finds as matter of law that said claim was and is barred by the statute of limitations applicable in such cases.

We therefore find the issues in favor of the State and against the petitioner and award him nothing.

Reference may be had to the case of Fair-banks v. The State, decided at this term, for a discussion of the applicability of the statute of limitations to this claim and as to when the cause of action arose.


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    Frank J. Oviatt v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim, must he filed within two years from time cause of action accrues. Claim for injuries to land by-reason of construction of dam by the State and consequent overflow of river is barred by statute of limitations, if not filed within two years after the closing of dam.
   The claimant filed a petition in this case on the 1st day of May, 1880, with the Auditor of Public Accounts. The petition avers, among other things, that the claimant is the owner of the west half (W.½) of fractional section 26 and the southwest quarter (S. W. ¼) of section 23, township 7 north, range 7 east of the 4th P. M., containing 382 acres; that a dam had been built by the authority of the State of Illinois, in the Illinois river at Copperas Creek which had permanently raised the water in said river, thereby damaging 264 acres of land above described.

We have not investigated the merits of this claim for the reason that, in our opinion, the same is barred by the statute of limitations.

The dam built in the Illinois river, which it is alleged caused the damage complained of, was closed in October, 1877. As we have before decided in the case of William R. Fairbanks for the use of the First National Bank of Lacon v. The State of Illinois, the cause of action accrued at that time and the claim not having been filed within two years after the cause of action had accrued it is barred by the statute of limitations.

Our conclusion is that the claim being barred by the statute of limitations for that reason it is rejected.


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    Jacob Morgenstein v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim not filed within two years is barred. A claim filed October 30, 1879, for damages caused by a dam erected by the State October 21, 1877, is barred by the statute of limitations.
   The petition in this case was filed with the Auditor of Public Accounts on the 30th day of October, 1879. The petition" avers among other things, that claimant is the owner of the south half ,(S.½) of the southeast quarter (S. E. ¼) of section 7, township 30, north range two west of the 3d P. M., containing 80 acres; and also the southwest quarter (S. W. 14) of the southwest quarter (S. W.¼) of section 8, township 30, north, range 2 west of the 3d P. M., containing 40 acres. That a dam had been constructed in the said river near Copperas Creek by authority of the State of Illinois which had caused the water in said river to be raised'permanently so as to damage a portion of this land in the sum of $1,550.

It appears from the proof that the dam was completed and closed on the 21st day of October, 1877.' This claim not having been filed within two years from the time the. cause of action accrued, would be barred by the statute of limitations as we have before decided in the case of William R. Fairbanks for the use of the First National Bank of Lacon v. The State of Illinois. We have not investigated the merits of this claim. Our conclusion is that the claim is barred by the statute of limitations, and, for that reason, is rejected.


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    Joseph Cody v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim barred by. Claim filed April 16, 1880, for damages to land arising from construction of dam on the Illinois river by authority of the State which dam was completed and closed in October, 1877, is barred by the statute of limitations.
   The claimant in this case filed his petition with the Auditor of Public Accounts on the 16th day of April, 1880. The petitioner, among other things, states that the claimant was the owner of the southeast quarter (S. E. ¼) of the southwest quarter (S. W. ¼) of section 30, township 8, north, range 8 east of the 4th P. M., containing 40 acres. That by reason of the construction of the dam in .the Illinois river near Copperas Creek by the ■authority of the State of Illinois-the water in said river has been permanently raised, so as to damage claimant’s land to the sum, of $400400.00 It appears from the proof that the dam in the river was completed and closed in October, 1877. As we have before decided in the case of William It. Fairbanks, for the use of the First National Bank of Lacon v. The State of Illinois, this would fix the time when the cause of action accrued.

This claim not having been filed within two years from that time, it would in our opinion be barred by the statute of limitations. We have not investigated the merits of this claim. Our conclusion is that the claim is barred by the statute of limitations, and is, for that reason, rejected.


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    Christian Teufel v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim must be filed within two years. A claim for injuries caused by the overflow of a river upon claimant’s land, said overflow being caused by the construction of a dam by the State, must be filed within two years after the cause of action accrues.
   This case was heard at the August term of this Commission, A. D. 1889, on claimant’s petition filed May 1, 1880, and his amendment thereto and the plea of the State of Illinois filed by the Attorney General of said State, August 10, 1880, and the testimony taken in said cause on the part of the petitioner and documentary evidence on the part of the State as to the time of the completion of the Copperas Creek lock and dam on the Illinois river.

Petitioner claims damages for injuries to lands owned by him in County of Peoria and State of Illinois consequent upon the erection and completion of said lock and dam in the year 1877. The lands so claimed to have been injured and damaged are particularly described in the claimant’s said petition—being a part of the northwest quarter (N. W. ¼) of fractional section 20, township 8, range 8 east, 12.36 acres; and the northeast quarter (N. E. ¼) of the southwest quarter (S. W. ¼) section 30, same town and range, 40 acres.

The defense of the State to said claim is the statute of limitations of two years; that said claim was not filed in the office of the Secretary of State nor proven up within two years from the time such claim arose.

The Commission finds as a matter of fact that said Copperas Creek lock and dam were completed on or about the 21st day of October, 1877, and as a matter of law that claimant’s cause of action arose and was perfect at the completion of said dam. Said claim was not filed with the Auditor of Public Accounts within two years from the time said cause of action arose.

For the reasons upon which this conclusion of law is based reference is had to the case of Wm. R Fairbanks for use, etc., decided at this term.

Wherefore without reference to the merits of said claim about which no opinion is expressed the issues are found for the State and against the claimant, and we therefore award him nothing. Claim rejected.


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    John Shepherd v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—petition must Be filed within two years. A .petition not having been filed within two years after cause of action accrued, is barred by statute of limitations.
   The claimant in this case filed his petition with the Auditor of Public Accounts on the 1st day of May, 1880. Petition avers among other things that the petitioner is the owner of the northwest quarter (N. W. ¼) of the southeast quarter (S. E. ¼) of section 30, township 8, north, range 8 east of the 4th P. M., containing 40 acres; that by reason of the construction of the dam in the Illinois river near Copperas Creek by the authority of the State of Illinois, the water in said river has been permanently raised, thereby damaging claimant’s land to the sum of $600.

We have not investigated the merits of this claim for the reason that in our opinion the claim is barred by the statute of limitations. The dam in the river was closed in October, 1877, which would fix the time when the cause of action accrued as we have before decided in the case of William R. Fairbanks for the use of the First National Bank of Lacon v. The State of Illinois.

This petition not having been filed within two years after the cause of action accrued, would be barred by the statute of limitations.

Our conclusion is that the claim is barred by the statute of limitations and is, for that reason, rejected.


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    Aaron R. Budd v. The State of Illinois.

      Opinion filed January 7, 1890.

      Waters—statute of limitations; when cause of action accrues for damages arising from the construction of a dam. A cause of action for damages to land by flooding, arising from the construction of a dam accrues and is perfect at the completion of such dam, and claimant’s petition must be filed within two years from that time or it is barred by the statute of limitations.
   This cause was submitted at this term on the petition of claimant filed in the Auditor’s office of the State of Illinois, April 28th, 1880, and his amendment thereto under date of October 31, A. D. 1882, the plea of the State of Illinois in defense of the said petition filed in said office by the Attorney General of said State of Illinois, and the evidence documentary and by depositions.

By his petition claimant, A. B. Budd, claims damages for injury to part of the south half of fractional section twenty-nine (29) in township eight (8) north, range eight (8) east of the 4th P. M., in the County of Peoria and State of Illinois, and described as follows: Beginning at the southwest corner of said half section and running thence north along its west line to the northwest corner thereof, thence east along the north line of said half section sixty-four rods, thence in a straight line in a southwesterly direction to the place of beginning, said to contain thirty-two acres.

Petitioner alleges his damages to have arisen in consequence of a raise in the water level of the Illinois river opposite his said land caused by the erection by authority of the State of Illinois of a lock or dam across the Illinois river at or near Copperas Creek in said State and known as Copperas Creek Lock and Dam. The petition does not state when said lock and dam were erected or completed, nor does it give any specific date as to when petitioner’s said damages arose, nor can it be ascertained from petitioner’s testimony, except by inference, when his cause of action did arise. By his amended petition claimant alleges that his damages are continuing and permanent in their nature and that his claim therefor “was filed within two years from the time said claim may have arisen.”

The defense of the State in its plea to said claim, among other things states that the facts stated as the basis of said claim are insufficient to entitle the claimant to the allowance sought and that said claim was neither proved up nor filed in the office of the Secretary of State previous to the first 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 that therefore said claim is barred by the statute of limitations.

From the documentary evidence before us we find that said lock and dam were completed on or about the twenty-first day of October, A. D. 1877. We further find as matter of law that petitioner’s cause of action arose and was perfect at the completion of said dam and that therefore his said claim for damages was not filed with the Auditor of Public Accounts within two years from the time his said cause of action arose and that his said claim for damages is therefore barred by the statute of limitations applicable to claims against the State of Illinois. For more particular reasons for so holding reference is made to the case of William R. Fairbanks for use of First National Bank of Lacon v. The State, decided at this term. Therefore, without regard to the merits, as to which we express no opinion, we find the issue for the State, and award the claimant nothing.

Olaim rejected.


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    Susan C. Carey v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim must he filed within two years. Where a dam is constructed by authority of the State and closed in October, 1877, claim for damages resulting from construction of such dam filed April 28, 1880, is barred by statute of limitations.
   The petition in this case was filed on the 28th day of April, 1880, and avers among other things, that the claimant was the owner of the northwest fractional quarter (N. W. ¼) of section 13, township 7, north, range 7 east of the 4th P. M., containing 28 acres; also that part of the southeast quarter (S. E. ¼) of section 14 in township 7, north range 7, east of the 4th P. M., lying east and northeast of the track of the Peoria, Pekin & Jacksonville Railroad, containing 38 acres. That by the construction of a dam in the Illinois river near Copperas Creek by the authority of the State of Illinois the water in said river had been permanently raised so as to damage claimant’s land to the sum of $360.00. It appears in proof that the dam was constructed and closed in October, 1877. We think the cause of action accrued at that time as decided in the case, of William R. Fairbanks for the use of the First Rational Bank of Lacón v. The State of Illinois. This claim not having been filed within two years from that date it is in our opinion barred by the statute of limitations.

We have not investigated the merits of this claim. Our conclusion is that the claim is barred by the statute of limitations, and for that reason, is rejected.


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    Jacob Darst v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim must he filed within two years. A claim filed April 28, 1880, when the cause of action accrued October 21, 1877, is barred by the statute of limitations.
   The claimant in his petition alleges that he is the owner of 850 58-100 acres of lands in the County of Peoria, nearly all of which was in 1877 and prior to that time susceptible of cultivation and was in fact cultivated by petitioner; that said lands lay along the banks of the Illinois river; that by authority of the State of Illinois a lock and dam was erected in the year 1877 across the said river at or near Copperas Creek; that the erection of said dam has raised the water in said river so that petitioner’s lands have become submerged and a greater part of the year remain under water so that said lands are rendered almost worthless for the purpose for which they were formerly used.

It is claimed that of the 850 58-100 acres, 797 71-100 are so damaged and the amount of damages claimed is $10,343.60.

To this petition the Attorney General on the part of the State files his plea interposing the statute of limitations as a defense.

There is a very large amount of testimony taken in this case in support of the petition. The Commission have however examined this case only so far as to enable them to determine the rights of the .parties under the state of pleadings as above stated.

The statute creating the Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any State institution, river, canal or other public improvement which have not been already barred by any statute or law of limitation.

An act of the General Assembly of the State of Illinois to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claims have arisen and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.

The Copperas Creek dam was completed October 21, 1877, and the construction of this dam is the only cause of complaint set out or claimed in the petition. The petition was filed with the Auditor of Public Accounts on the 28th day of April, 1880, more than two years after the construction of said dam. Not having been filed within two years from the time such claim arose such claim is barred by the statute of limitations, and is rejected for that reason. For further particulars reference is had to the opinion filed in the case of Win. R Fairbanks for the use of First National Bank of Lacón.


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    Horatio G. Cary v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim, barred because not filed within two years. Claim for Injuries to land by reason of construction of dam by the State and consequent overflow of river is barred by statute of limitations if not filed within two years after closing of dam.
   The petitioner filed in the office of the Auditor of the State of Illinois on April 16, A. D. 1880, his claim for damages to the northeast quarter of section twenty-three (23) in township seven (7) north range seven (7) east of the 4th P. M., Peoria county, State of Illinois, claiming damages to the extent of one thousand and six hundred dollars, or at the rate of ten dollars per acre on one hundred and sixty acres; and that said injury arose from the construction by the State of what is known as the Copperas Creek Lock and Dam across the Illinois river.

There is no certain date alleged either in the original or amended petition as to when said lock and dam were built, or as to when the damages complained of accrued, except that it manifested itself in the fall of A. D. 1877, as stated in the petitioner’s evidence.

On August 10, A. D. 1880, the Attorney General of the State of Illinois filed the defense of the State to said claim, which among other things is that the petitioner’s claim was neither proved up nor filed in the office of the Secretary of State previous to the first day of January, 1849, nor within two years from the time such claim may have arisen as required by the statute of the State in that behalf, and that for that reason said claim was barred by the statute of limitations.

This cause was submitted at this term on the pleadings and proofs on file. We think the evidence and the allegations of the petition in this case show that the damages sustained by the petitioner, if any, arose in the fall of the year A. D. 1877, and therefore more than two years before the filing of said claim, and is therefore barred by the statute of limitation of A. D. 1847, following the decision in the case of Fairbanks for the use of the First National Bank of Lacon v. The State of Illinois decided at this term.

Therefore, without regard to any merits we might otherwise have thought there were in the claim, and as to which we express no opinion, we find the issues against the complainant and award him nothing, and the claim is rejected.


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    Samuel C. Neal v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim must be filed within two years. Unless claim for damages for overflow of land alleged to have been caused by erection of dam by the State, is filed within two years after cause of action accrues, same is barred by statute of limitations.
   This cause was submitted upon, claimant’s petition filed April 20, 1880, and his amendment thereto and the plea of the State of Illinois thereto and the depositions in said cause on the part of the claimant and the documentary evidence on the part of the State.

Petitioner claims damages to certain real estate owned by him in the county of Peoria in the State of Illinois, in sections 23, 36 and 35, in township 20 north range 8 east of the 4th P. M., being the east one-half of the southeast quarter and the southwest quarter of the southeast quarter of section 23; part of the southwest quarter of section 26 and the northwest fractional quarter of section 35, in all 260 acres, of which 175 acres are said to have been damaged consequent upon the erection of the lock and dam at Copperas Creek on the Illinois river, built by authority of the State of Illinois.

It is not stated either in the petition or in the evidence on the part of the claimant when said lock and dam were completed or the cause of action arose except that it is stated in his amended petition that the cause of action arose within two years of the time of the filing of said petition.

The State alleges by way of defense that said claim was not filed according to law within two years from the time the cause of action arose nor was it proven up within that time and that the claim is barred by the statute of limitations applicable in such cases.

The Commissoin finds on examination of the testimony that said lock and dam were completed on or about the 21st day of October, 1877, and as matter of law that said claimant’s cause of action arose at that time, if any he had, (as to the merits of which we express no opinion,) and that therefore said claim was not filed within two years from the time it arose and is barred by the statute of limitations.

We therefore find the issues for the State and against the claimant and award him nothing. For more specific reasons for holding this claim barred see opinion in Fairbanks v. The State, decided at this term.

Claim rejected.


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    Alvira Robinson v. The State of Illinois.

      Opinion filed January 7, 1890.

    Statute of Limitations—claim for damages caused by construction of dam must be presented within two years. A claimant for damages to land caused by the construction of a dam by the State must file his petition within two years after the date of the closing of the dam or his claim will be barred by the statute of limitations.
   The petition in this case is filed by Alvira Robinson for the use of the executors of the last will of Washington E. Cook, deceased.

The petition charges that claimant is now in possession of said lands described in the petition under contract for a deed from Washington E. Cook, deceased, and was so in possession before and since the 20th day of October, A. D. 1877; that by authority of the State of Illinois a dam was constructed across the Illinois river near Copperas Creek in October, 1877; that said dam lifts the water at said Copperas Creek six and one-half feet, mailing the lowest possible low water mark at said dam six and one-half feet higher than before said dam was constructed; that by reason of the erection of said dam claimants’ lands have become water soaked, the water backing up over said lands, rendering said lands almost worthless and will so remain forever. The damage claimed is $675.00. The Attorney General files a plea setting up the statute of limitations as a defense to said claim.

The statute creating this Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any public improvement which have not already been barred by any statute of limitations; see session laws of 1889, page 90.

An Act of the General Assembly of the State of Illinosi to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claim may have arisen, and any claim not presented and proven up as above and filed shall be forever barred from payment by the State.

The petition in this case was filed in the Auditor’s office October 30, 1879, more than two years after the construction of the dam at Copperas Creek, which dam was constructed October 21, 1877.

The claim not having been filed with the Auditor of Public Accounts within two years "as required by the statute of 1847, the said claim is now barred by the statute of limitations and is therefore rejected for that reason.

For further particulars reference is had to the opinion filed in the case of Wm. B,. Fairbanks, use of the First National Bank, etc., v. The State of Illinois. (See page, ante.)


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    Wm. C. H. Barton v. The State of Illinois.

      Opinion filed January 7, 1890.

    1. Commission of Claims—what powers are conferred upon it by statute. The statute creating this Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any State institution, river, canal or other public improvement, which have not been already barred by any statute or law of limitation.
    2. Statute of Limitations—provisions of act of 1847. An act of the General Assembly of the State of Illinois to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claims may have arisen and any claim not proved up as above and filed shall be forever barred from any payment by the State.
    3. Same—damages arising from the construction of dam. A cause of action for damages arising from the construction of a dam accrues at the date when the dam is closed and claimant’s petition must be filed within two years from that time.

      Fairbanks v. State, ante page 1 followed.

   The petition filed in this case alleges that claimant was the legal owner of 461.64 acres of land in Peoria county, Illinois, at the time and from the construction of the Copperas Creek dam across the Illinois river by authority of the State of Illinois; that before said dam was erected nearly all of said lands had for years prior to building said dam been cultivated by claimant; that the construction of said dam caused the water to back up to such an extent as to overflow nearly all of said lands and to hold the water on said lands so long that for the purpose of cultivation said lands were worthless; that the crop for the year 1878 was entirely destroyed and the crop of 1879 nearly all lost by reason of such high water. The amount of damages claimed is $5,231.00.

To this petition the Attorney General on behalf of the State files a plea that said claim is barred by the statute of limitations.

The statute creating this Commission of Claims provides that the Commission shall have power to hear and determine all claims against the State for taking or damaging private property by the State for public purposes in the construction or for the use of any State institution, river, canal or other public improvement, which have not been already barred by any statute or law of limitation.

An Act of the General Assembly of the State of Illinois to limit the time for persons to bring claims against the State of Illinois, approved March 1, 1847, provides that all unliquidated claims against the State shall be proved up and filed with the Auditor of Public Accounts within two years from the time such claims may have arisen, and any claim not proved up as above and filed shall be forever barred from any payment by the State.

The Copperas Creek dam was completed October 21, 1877. The construction of this dam is the only cause of complaint set out or claimed in this petition. The petition was filed with the Auditor of Public Accounts April 28, 1880, more than two years after the construction of said dam. The statute of 1847 above referred to is still in force, and the petition in this case not having been filed within two years from the construction of said dam, the claim is barred by the statute of limitations above referred to, and is therefore rejected. For further particulars reference is had-to the opinion filed in the case of Wm. R. Fairbanks for use First National Bank of Lacón.


author: E. D. Blinn,

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    William Hunter v. The State of Illinois.

      Opinion filed May 10, 1890.

    1. Pleadings—must show what part of lands are injured. Where damages are claimed for injuries to land caused by overflow of river consequent upon building of dam. by the State, claimant in his petition must describe what parts, if not the whole of his lands, are thus injured.
    2. Statute of Limitations—when claim is not harred. If claim is filed for damages caused by overflow of river caused by construction of dam by the State within two years after opening of such dam such claim will not be barred by statute of limitations.
   Dissenting opinion by

E. D. Blinn,

President of the Commission.

On the 20th of October, 1879, the claimant filed with the Auditor of Public Accounts of the State of Illinois, his claim against the State for damage 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, and in which he says the land and property damaged is the east half (E. ½) of the southwest quarter (S. W. ¼) of section sixteen (16), and one hundred and eighty acres out of the center of the north half (N. ½) of Section fifteen and the west half (W. ½) of the southeast quarter (S. E. ¼), and thirty acres off the east side of the northeast quarter (S. E. ¼) of the southwest quarter (S. W. ¼) of said section fifteen, all in town twenty-eight north of range three west of the 3rd P. M., in Woodford county, in the State of Illinois.

Section four of the statute under which the Commission is constituted, in force July 1, 1877, and continued by the act approved June 1, 1889, prescribes that “All persons having claims against the State shall file the same with the Auditor of Public Accounts * * * * and shall file with such claim a statement in writing under oath of the facts upon which such claim is based, setting forth the time when and the place where the same accrued, * * * and in all cases the amount of such claim and all other facts necessary to a full understanding of such claim.”

A statement in writing signed by said claimant and under oath was filed with said claim and to which said claim was attached.

In this sworn statement the claimant describes all the lands as in said claim heretofore described except that he omits therefrom the east half of the southwest quarter of said section sixteen and omits to state that the one hundred and eighty-nine acres are in the centre of the north half of said section fifteen and describing them only as “one hundred and eighty-nine acres out of the north half of said section fifteen.”

The claimant further represents in his said sworn statement that before and since the 20th of October, 1877, he was and has been the undisputed owner of the lands and property fully and particularly described in his claim attached to his written statement; that said lands are situated in the bottoms and low lands bordering upon the Illinois river, and subject to inundation at high water in said river; that of the lands described in said claim attached, two hundred and seventy-five acres, had been farmed to com and the remainder used for meadow and pasture; that in October, 1877, a dam was constructed across said river near Copperas Creek under the authority of the State, lifting the water in the river opposite said lands from two to three feet; that said river is subject to summer freshets raising the water therein from two to three feet which since said dam was constructed is equivalent to a raise of from four and one half to six feet, and that by reason thereof much of the claimant’s lands have become water soaked and soft to such an extent that they no longer bear animals with safety and have become unproductive and liable to frequent destructive overflows and are almost worthless, whereby he had sustained damage to the amount of thirty-nine hundred and forty dollars.

Where damages are claimed for injuries to land caused by the increased overflow consequent upon the building of said dam we think the claimant in his sworn statement ought to describe what parts, if not the whole, of his lands are thus injured and their height above the original low water mark in said river and that the lands injured should be so described as that they might be identified and their exact boundaries known, and that the proofs should be restricted to the lands described in the claimant’s sworn statement and to the manner or cause of injury therein alleged. If this rule were to be followed then we should not consider the lands in section sixteen because the claimant does not include them in his sworn statement, and the one hundred and eighty-nine acres in the north half of section fifteen should not be considered because from the statement of claimant while it is confined to the centre of the north half, its boundaries cannot be ascertained. It might be a strip of land extending east and west through the middle of said north half and wide enough to include one hundred and eighty-nine acres or it might extend north and south through the center of said half section and wide enough to contain one hundred and eighty-nine acres, and it would not necessarily have to be bounded by •straight lines, its boundary might be a circle. The •description is no better in the sworn statement. It -does not require the land to be in any particular part of the said half section. Of the one hundred and ten acres described as lying in the south half of said section fifteen, the claimant claims that thirty acres have been damaged but does not specify in what part of the one hundred and ten acres it is to be found.

The Commission finds from the evidence that the Copperas Creek dam was completed and closed on the 21st day of October, 1877, and that plaintiff’s cause of action, if any he has, then accrued, and consequently this claim was filed in apt time. On August the 9th, 1880, the Attorney General filed in the Auditor’s office a statement of his defense, one of which is, that the facts stated as the. basis of said claim are insufficient to entitle the claimant to the allowance sought. On the 7th of August, 1880, the claimant filed depositions in support of his claim and on the second of August, 1889, claimant filed additional depositions. Depositions taken on the 20th of March, 1890, on behalf of the State, were also filed and by consent of claimant and the Attorney General, read on behalf of the State.

The reports of Robert Wilson, a surveyer appointed by authority of the act in force July 1, 1881, were also considered.

The evidence is voluminous and in many respects conflicting. As we understand the claimant’s evidence he attempts to show that while his lands do not lie so low as to be materially injured by the increased overflow consequent upon the building of said dam yet his said lands are injured by said dam backing the water up the mouths of certain creeks flowing from the bluffs through the bottom lands to the river and in their course passing near to or through said lands, claiming that said back water has caused the channels of these creeks to fill up so that the waters coming down overflow their banks and spread over the adjacent lands; and further that the filling up of said creeks has stopped underground drainage which used to flow into them and pass away into the river but which since the filling up of said creeks now break out and flow over the surface of the lands and make it miry, wet and cold and unproductive. It is contended by the claimant that these creeks only began to fill up after said dam was constructed and that there has been an increased and continuous filling up ever since, yet the claimant insists that his crops were greatly injured in the years 1878 and 1879 consequent upon the construction of said dam. We are satisfied from the whole of the evidence that the claimant is mistaken, the evidence satisfying us that said creeks began to fill up many years before said dam was built, and that its filling up in after years has neither been caused or accelerated by said dam, but that its filling up was caused by drift wood lodging and forming drifts and obstructions to the flow of the water and trees being cut down and falling into the stream and being allowed to remain, and also from timber being allowed to grow in the stream as it filled, thus obstructing the channel and forming barriers to whatever might be flowing down; and we are also satisfied that the improvement of the country drained by these creeks by being plowed and ditched caused a greatly increased amount of dirt and sediment to be brought down with the high water after heavy rains which settled along the creeks and was held back by the obstructions spoken of. From the evidence these streams must have had a fall of from sixteen to twenty odd feet from the bluffs to their junction with the river, and we do not believe nor can we understand how a permanent raise in the river of from three to four feet at the mouths of these streams could cause them to fill up a distance of two or three miles back to the bluffs.

There is considerable evidence tending to show that these creeks are yet open and of their usual depth at and near to their mouths.

The evidence furnished by the report of the surveyor shows that a line run from east to west through the center of the east half of the southeast quarter of section 16 is fifteen and one-half feet higher than the original low "water mark at the river and that there is a great quantity of water discharged from the east over a part of this tract of land, the land lying from one to two miles east of the river.

A line "was run east and west through the center of the north half of section fifteen which shows the land to be over twenty feet above the original low water mark, in the lowest place being a little over seventeen feet. The lowest point found on the west half of the southeast, quarter had a sag in it, the bottom of which was firm land and nearly sixteen feet higher than the original low water mark; the east thirty acres of the northeast quarter of the southwest quarter of said section fifteen is reported by said surveyor to be nearly all dry land and fifteen feet above low water mark, and it is on this thirty acres that the claimant in his testimony insists he has been damaged to the extent of fifteen dollars per acre.

After a conscientious consideration of the whole case we are constrained to hold that the claimant is not entitled to any award, and this claim is rejected.

W. S. Kay, Com.

R. D. Adams, Com.

I do not concur in the conclusion arrived at in this case by my associates. I think the proofs show that the claimant is entitled to an award as to a part of his land for damages sustained.

E. D. Blinn, Pres. Com.


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    Nancy Myers v. The State of Illinois.

      Opinion filed May 10, 1890.

    1. Waters—claim not barred when filed within two years after cause of action accrues. Claim for damages to lands by overflow of river caused by construction of dam by the State of Illinois is not barred by statute of limitations if filed within two years after cause of action accrues.
    2. Damages—to land by construction of State dam. Court reviews evidence and finds construction of Copperas Creek dam in the Illinois river has damaged claimant’s land by overflow of river and determines amount of award.
    3. Same—no damages allowed on lands purchased after cause of action accrued. The Commission in its award does not consider damages accruing to that part of the land purchased after cause of action originally accrued.
   Claimant in this case filed her petition, in which it is charged that on the 20th day of October, A. D. 1877, and before and since that time claimant was the owner in fee of the west half (W. ½) of the northeast quarter (N. E. ¼) and the southeast quarter (S. E. ¼) of section fifteen (15) and the northeast quarter (N. E. ¼) of section twenty-two (22) all in township twenty-nine (29) north of range three (3) west of the 3d P. M.

That by authority of the State of Illinois a dam. was constructed across the Illinois river at or near Copperas Creek and that by reason of the construction thereof the water in said river has raised from two to three feet higher opposite to said lands than it was prior to the construction of said dam and that by reason thereof and on account of the construction of said dam the lands of claimant above described have become flooded, water soaked, and soft to such an extent that they will no longer bear animals safely and are unproductive, subject to frequent disastrous overflows, and are almost worthless and will so remain forever.

By reason of which facts claimant says she has been damaged to the amount of one thousand six hundred and eighty dollars ($1,680.00) for which she asks judgment.

To this petition the Attorney General on behalf of the State files his plea interposing the statute of limitations and also a general denial amounting in effect to the general issue and upon the petition, pleas and depositions on file this cause is heard.

The petition was filed on the 20th day of October, A. D. 1879, less than two years after the construction of the dam at Copperas Creek and for that reason the claim is not barred by the statute of limitations.

Claimant says in her petition that her damages are $1,680.00 and in her deposition fixes her loss at $5,760.00.

Henry E. Wier, when examined on the part of the claimant, places her damages at $4,000; W. H. Cassell at $5,200 and Daniel Jones at $2,640.

The witnesses for the State who testify with reference to this point speak of the damage to claimant’s lands as being slight. Henry E. Wier when re-called and examined on the part of the State says he knows of the building of the Copperas Creek dam and that lands about six feet above low water mark were injured very much and that lands above that point were not injured any; that the building of the dam did not affect the Nancy Myers land any; that part of those lands were high and dry and part swampy.

James B. Martin a Avitness on the part of the State speaking of the Haney Myers land, says: “I think the land was damaged by the building of the Copperas Creek dam. The west half (W. ½) of the southeast quarter (S. E. ¼) of section fifteen (15) and the west half (W. ½) of the northeast quarter (N. E. ¼) of section fifteen (15) sold for $12.50 per acre. They are not worth near so much. They sold for more than they were worth.”

John Wier, also a witness on the part of the State, says he does not believe that Claimant’s lands were damaged by the building of the dam.

Mr. Wilson who surveyed these lands says in his report filed in this case: “The west half of the northeast-quarter of section fifteen on the east side is fifteen feet above low water mark and descends to about nine feet at the southwest corner.” As to the southeast quarter of section fifteen, he says: A line was run south along the east side of this tract; on this line the land was from thirteen to nineteen feet plus low water mark and some of this tract is now cultivated on the east side. “This tract he further says descends to the west and a large part is wet and uncultivated. As to the northeast quarter of section twenty-two he continues: “A line was extended south on the east side of this tract about 1,200 feet to a slough. This is about twelve feet plus low water; is impassible.”

The east half of the southeast quarter of section fifteen was purchased by claimant February 25, 1878, after the construction of the dam. Whatever right accrued for damages to this tract by reason of the construction of the dam aforesaid accrued before claimant purchased this land and hence such damages, if any there were, are not considered in the award in this case.

The northeast quarter of section twenty-two is found by measurement to be twelve feet above low water mark. Hone of this tract has ever been cultivated so far as the evidence shows. Nine feet above the present low water mark an impassible slough is found and no effort has been made on the part of claimant to explain this condition of things. We cannot say from the evidence that the Copperas Creek dam is the immediate or remote cause of this slough being found upon the land or the occasion of its boggy condition. If we compare the price paid for this tract with that expended for contiguous tracts on the north we are forced to the conclusion that it (the northeast quarter of section twenty-two) was at the time of its purchase by claimant (and that was before the building of the dam) for some reason less valuable than the other tracts and the reason therefor seems to us to be found in the fact that there existed upon it at the time of purchase an impassible slough.

The evidence sIioavs that claimant paid for this land less than seven dollars per acre while for the east half southeast quarter of section fifteen adjacent to it on the north she paid $28.50 per acre and for the west half of the southeast quarter of section fifteen also adjoining the tract in question on the north she paid $12.50 per acre.

We are of the opinion that the west half (W. ½) of the northeast quarter (N. E. ¼) and the west half (W. ½) of the southeast quarter (S. E. ¼) of section fifteen (15) aforesaid are damaged by the water from the river causing a portion of these tracts to become so water-soaked as to impair their productiveness and that such damage is directly traceable to the construction of the Copperas Creek dam as its cause. The damage to these tracts of claimant’s land we fix at six hundred dollars ($600.00) and in our view this amount is all to which she is legally entitled in this case.


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    Charles E. Rickey v. The State of Illinois.

      Opinion filed May 10, 1890.

      1. Waters—damage to lands by backing of water caused by construction of dam. Where lands are damaged by reason of the backing of water onto the claimant’s property, caused by the raising of the river level by the construction of a dam, the direct cause of the injury is the construction of the dam and the petition must be filed within two years from the date of the closing of the dam or it will be barred by the statute of limitations.
    2. Statute of Limitations—how two years time is to be computed. In computing the two years time within which claims shall be filed, the first day is to be excluded and the last day included unless the last day be Sunday, and then it also shall be excluded.
   This claim was filed on the 23d of October, 1879. The petition filed recites that claimant was and is the owner of the southwest quarter of section eleven; also the northwest quarter of section fourteen and the east half of the northeast quarter of section fifteen, all in township twenty-nine, north of range three, east of the 3d P. M., Marshall county, Illinois. That said lands are situated in the bottoms of the Illinois river and subject to floods and inundation from high water in said river; that during the months from and including May to October in each year, the river is usually at low water mark and the lands of claimant left dry and productive.

Petition further avers that in October, 1877, there was constructed in the Illinois river by the authority of the State of Illinois, a dam near Copperas Creek which caused the level of the water in the river to be permanently raised about three feet above where it would have been had it not been for the dam in the river, thereby injuring the land of the claimant and its productive qualities.

To this petition the Attorney General has filed a plea of the statute of limitations; that the claim had not been filed within two years after the cause of action had accrued.

We have held in quite a number of cases that this statute of limitations was in full force and applied directly to this class of cases.

But it has been insisted by claimant that this case ought not to be barred by the statute of limitations for the reason that the thing complained of is the backing of water on the lands of claimant and through the outlets which had drained his land. That it was not the building of the dam nor its effect upon the river, but the effects of the river on the land that is the matter complained of.

It seems to us this reasoning is fallacious, if, as contended, the damage complained of is the effect of the river on the land, affecting the land in a different manner from what it did. But what made the river affect the land differently? All agree it was the effect of the dam permanently raising the level of the water in the river, which made the river have an injurious effect upon the lands of the claimant. The extent that the land was injured from this cause would be the measure of the damage sustained. The right to maintain this claim, is, that the State had injured claimant’s land by placing this obstruction in the river, that raised the level of the water and thereby causing the river to injure the productive qualities of claimant’s land. So that the thing which caused the river to damage the land was the building of the dam. When it was completed and closed its immediate effect was to permanently raise the level of the water in the river. That fixes the time when the cause of action arose.

We do not see any sufficient reason for changing the position taken in the case of Fairbanks, for the use, etc., before decided.

The report of the engineer showing when the dam was closed was considered in evidence by agreement of the parties without being formally read. This report fixes the time when the dam was closed as the 21st day of October, 1877, and the time the water flowed over the dam, as the 22d of October, 1877.

It is urged that inasmuch as this claim was filed on the 23d of October, 1879, it is within the two years, and our attention had been called to Section 1, Chapter 131, of the Revised Statutes which provides as follows: “The time in which any act provided by law is to be done, shall be computed by excluding the first day and including the last (unless the last day be Sunday, and then it shall also be excluded.) ”

It is claimed that under this statute excluding the 22d, the two years would end on the 23d, that being the day the claim was filed. If you exclude the 22d, and include the last day, which we think should be done, the two years would, expire at 12 o’clock on the night of the '22d, unless that day was Sunday, which upon examination we find it was not.

This claim not having been filed within the two years our conclusion is that the claim is barred by the statute of limitations and is, for that reason, rejected.


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    Matthias Hosher v. The State of Illinois.

      Opinion filed May 10, 1890.

      Waters—claimant entitled to damages for land flooded by construction of State dam. Where a dam constructed by authority of the State results in raising a river and thus damaging lands of claimant and rendering them less valuable for purposes of cultivation claimant is entitled to damages actually received.
   The claimant in this case filed his petition on the 20th day of October, 1879. He avers in his petition that he is the owner of the southeast quarter of the northeast quarter of section twenty-one in township twenty-eight, north of range three west of the 3d P. M., in Woodford county, Illinois, containing eighty acres. That said lands are situated in the bottoms of the Illinois river and are subject to an inundation from floods in the Illinois river. That during and including the months from May to October in each year said river is usually near low water mark and the land of claimant left dry so that crops of grain could be profitably raised. That in October of 1877, there was constructed in the Illinois river, by the authority of the State of Illinois, a dam which permanently raised the level of the water in the river about three feet. That the drains to his land, by the backing up of the water, had been rendered incapable of properly draining his land.

There has been considerable proof taken tending to sustain the claim, and also proof tending to show that claimant had not sustained much, if any, damage. After a careful examination of all the evidence, we think it is reasonably clear that claimant has sustained some damage by the construction of this dam. The amount of such damages is not readily ascertained. The proof shows that the land is at an elevation of from about fourteen feet to nine feet above original low water mark. The report of a civil engineer appointed by a former Commission, reports that the larger proportion of this land had been in cultivation before the building of the dam. We think the evidence shows that but very little of this land could be cultivated since the construction of this dam, so that claimant has undoubtedly sustained considerable damage.

Our conclusion is that claimant is entitled to an award of three hundred and fifty dollars ($350.)


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    Charles E. Rickey v. The State of Illinois.

      Opinion filed December 12, 1890.

    Statute of Limitations—claim barred because not filed within two years. The Commission after a hearing on a motion for a rehearing in this case affirms its former opinion.
   This cause was heard at the August term, A. D. 1889, and upon hearing the petition was dismissed because of a failure on the part, of claimant to file his petition within two years.

On the 20th day of August, 1890, a motion for a new hearing is filed on the part of the claimant. After hearing arguments of counsel upon said motion and on due consideration thereof the motion for a new hearing is denied, and the opinion heretofore filed herein is reaffirmed.


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    The Heirs of William Klein v. The State of Illinois.

      Opinion filed December 12, 1890.

      Waters—damage caused by construction of a dam by the State. The court reviews the evidence and finds that the claimant’s lands have been damaged by the overflowing of the Illinois river caused by the construction of a dam across the said river by the State of Illinois.
   In his lifetime and on the 20th of October, 1879, William Klein filed his sworn statement in this case in the Auditor’s office of the State of Illinois wherein he claimed damages to the amount of $3,018.00 to the northeast fractional quarter of section 31 in township 13 north of range 10, east of the 4th P. M., containing 123 6-10 acres and to the northeast quarter; the northwest quarter and the southwest quarter of section 1 in township 12 north of range 9, east of the 4th P. M., containing 480 acres, all in Marshall county, Illinois.

That said damages were caused by the erection of a dam across the Illinois river near Copperas Creek by the authority of the State of Illinois in the month of October, 1877, and that claimant was then and ever after continued to be the owner of said lands.

That the dam caused the water in the river opposite said lands to rise from two to three feet higher than it would but for said dam.

That said lands were situated in the bottoms and low lands bordering upon said river and were subject to floods from said river. That the river was usually at low water mark in May, June, July, August, September and October of each year when said lands were left dry and yielded large crops of grass valuable for hay and pasture, and when under cultivation yielded profitable crops of corn and other grains. That by reason of the water being held higher opposite said lands they became water soaked and soft to such an extent that they will no longer bear animals with safety, and have become unproductive and nearly worthless and will so remain forever.

Most of the claims, and they are quite numerous, which have been filed on account of damages said to have occurred on account of the building of said dam are upon a printed blank and the averments with reference to the cause of damage, the manner of its affecting the land and the kind of crops for which the land was suitable are in most cases precisely the same.

In this case the depositions filed on the part of the complainant show the lands to have cost previous to the construction of the dam about $15.00 an acre and that they were suitable for cultivation. The testimony on the part of the State found in the reports of the civil engineer who was appointed under the law for the purpose of taking levels in the case shows that the northeast quarter of section 1 is a wet tract; that a line was run north and south through it midway between two lakes called Wise and Goose lakes and that the surface of the water in the lake is higher than the water in the river, and his conclusion was that this tract was caused to be wet by the lakes and that the water in the lakes was not raised by the dam; that a strip of land had been cultivated on the north side of the northwest quarter of section one and that the land descends south towards Goose lake when it is nearly on a level with the lake, the lake covering part of the tract and that the wetness of the land was caused by the lake; that a large part of the southwest quarter of said section one is covered by this same lake and that the south line of this tract is no higher than the lake.

After a careful consideration of all the evidence the Commissioners conclude that the northeast fractional quarter of said section 31 has not been damaged at all on account of the construction of said dam and that claimants’ land in said section 1 have sustained some damage.

It is thought that previous to the construction of said dam .the lakes mentioned might have been more effectually and easily drained, although it was never done. We have fixed the amount of damage sustained upon the several tracts in said section 1 at $300.00.

We find since the filing of said claim said William Klein departed this life intestate and that the damages allowed should be paid to the heirs of the said William Klein, who have been substituted as claimants on the records of this Commission, but not by their respective names.

We therefore award to the heirs of the said William Klein the aforesaid sum of $300.00 as and for the damage sustained as claimed.

We further find that said claim was filed within two years from the time of the completion of the said Copperas Creek dam and that said claim is not barred by the two years statute of limitations applicable to claims of this nature.


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    The Heirs of Greenburry L. Fort v. The State of Illinois.

      Opinion filed December 12, 1890.

      Practice—where testimony is conflicting; when statement of reasons for court’s decision is unnecessary. Where testimony introduced by claimant and the State is conflicting and where the Court finds much of it that does not produce in the mind of the Court a conviction that it is reasonable or true, the law under which the Court acts, which requires the Court to file with the record of each claim- determined, a brief written statement of the reasons of the Court’s determination, may be dispensed with and the conclusions only of the Court may be given in an opinion rendered.
   Greenburry L. Fort, in his life time, filed his claim in the Auditor’s office of the State of Illinois on the 20th of October, A. D. 1879, stating he was a resident of Lacon in Marshall county, in the State of Illinois, claiming damage to his land situated in the bottoms and low lands bordering upon the Illinois river and that said damages were caused by a dam constructed by the State of Illinois across the Illinois river near Copperas Creek in October, 1877.

The lands claimed to have been injured and the amount of damages claimed are as follows, to-wit:

“Fractional southeast quarter of section twenty-three (28) township 12 north of range 9 east of the 4th P. M., containing one hundred and thirteen acres, all of which is damaged to the extent of five dollars per acre.”
“The north half of the fractional east half of the southwest quarter of section 35 in township 30 north of range 3 west of the 3d P. M., containing twenty-six (26) acres, all of which is damaged to the extent of five dollars per acre.”
“Outlet three in the city of Lacón and being part of section 35 last above mentioned and containing ten acres of which five acres are damaged to the extent of five dollars per acre.”
“Outlot four in the city of Lacón and being a part of section, thirty-five last above mentioned and containing thirty-one acres of which twenty (20) acres are damaged to the extent of five dollars per acre.”
“All that part of the northwest quarter of section two in township twenty-nine north of range three west of the 3d P. M., which lies west of the channel of the slough, and containing forty-one acres, all of which is damaged to the extent of five dollars per acre.”
“All of the southwest quarter of said section two in the township and range last above mentioned except six acres off of the east end of the south half of the same, containing one hundred and fifty-four acres, all of which is damaged to the extent of five dollars per acre.” “Fractional section three in the township and range last above mentioned containing sixteen acres, all of which is damaged to the extent of five dollars per acre.” “Sixty-nine acres off of the north part of the northeast fractional quarter of section ten in the township and range last above mentioned of which fifty acres are damaged to the extent of five dollars per acre.”
“The southwest fractional quarter of section fifteen in township twenty-nine north of range three west of the 3d P. M., aforesaid, containing one hundred and forty-three acres, of which one hundred and twenty-three acres are damaged to the extent of five dollars per acre.”
“The fractional west half of section twenty-two in the township and range last above mentioned, containing two hundred and eighty-one acres, of which two hundred and forty acres are damaged to the extent of three dollars per acre.”
“The west half of section twenty-seven.”
“The southwest quarter of the northeast quarter of the same section twenty-seven.”
“The north half of the southeast quarter of the same section twenty-seven, all in the township and range last above mentioned and containing in three pieces four hundred and forty acres, of which four hundred and ten acres are damaged to the extent of three dollars per acre.”
“Fractional section twenty-eight in township twenty-nine north of range three west of the 3d P. M., containing one hundred and sixty-eight acres of which one hundred and twenty-eight acres are damaged to the extent of three dollars per acre.”
“The southwest quarter of section thirty-four.”
. “The southwest quarter of the northwest quarter of the same section thirty-four.”
“The east half of the northwest quarter of the same section thirty-four.”
“The northwest quarter of the northeast quarter of the same section thirty-four, all of said four pieces being in the township and range last above mentioned and containing together three hundred and twenty acres, all of which is damaged to the extent of three dollars per acre.”

Claimant says his lands were subject to inundation from floods and high water in the Illinois river; that the river was usually at or near low water mark in May, June, July, August,' September and October; during which months said lands were left dry, yielding crops of grass valuable for hay and pasture and when under cultivation yielding profitable crops of corn and other grain; that of the whole amount of lands for which damages were claimed about 150 acres had been farmed to corn and the remainder used for meadow and pasture; and that the dam caused the water to rise in the river opposite said lands from two to three feet higher than before the dam was erected so that a freshet of from two to three feet before the darn was built would now cause a rise in the river opposite said lands of from four and one-half to six feet causing claimant’s lands to become flooded, water' soaked and soft to an extent that they would no longer bear- animals with safety, had become unproductive; liable to frequent over-flows and were worthless and would "remain so forever; placing his damages in the aggregate at $6,034.00.

A great deal of testimony was taken by the claimant-in his life-time and filed with the Auditor. There has also been a large amount of testimony introduced on the part of the State. The Commissioners find it in many respects very conflicting. We also find much of it that does not produce in our minds a conviction that it is reasonable or true. Much of it consists in the expression of the opinions of witnesses, the foundation for which opinions has seemed to us insufficient, and while the law under which we act requires us to file with the records of each claim determined a brief written statement of the reasons of our determination, yet we do not understand it as requiring us to enter into a dissertation upon a large mass of testimony with a view of making it clear upon the record that our conclusion was the only one that could be arrived at in the given case. Suffice it. to say that we carefully considered all the testimony offered and read with a determination to allow the claimants all that we felt convinced they were entitled to and in so doing arrived at, the following conclusion:

That for the fractional southeast quarter (S. E. ¼) of section twenty-three (23) in township twelve (12) north range nine (9) east of the 4th P. M., containing one hundred and thirteen acres we fix the damage at two hundred dollars and find the property was of little value at and previous to the completion of said dam.

To the north half (N. ½) of the fractional east half (E. ½) of the southwest quarter (S. W. ¼) of section thirty-five (35) in township thirty (30) north range three (3) west of the 3d P. M., containing twenty-six (26) acres we find the damage to be seventy-five dollars (175.00.)

To outlet three (3) in the city of Lacon, containing ten (10) acres and to outlet four (4) in said city containing thirty-one acres, all in said section 35, we find the damage to be 175.00.

To all that part of the northwest quarter (N. W. ¼) section 2, in township 29, north range 3, west of the 3d P. M., which lies west of the channel of the slough, containing forty-one (41) acres, we find the damages to be seventy-five dollars ($75.00.)

To all that part of southwest quarter (S. W. ¼) of section 2, in township 29, north range 3, west of the 3d P. M., except six acres off of the east end of its south half, we find the damages to be three hundred dollars ($300.00.)

To fractional section 3, in township 29, north range 3, west of the 3d P. M., containing sixteen (16) acres we find the damages to be twenty-five dollars ($25.00.)

To sixty-nine acres off of the north part of the northeast fractional one quarter of section 10, township and range last above mentioned we find the damages to be one hundred dollars ($100.00.)

To the southwest fractional quarter of section 15, in township 29, north range 3, west of the 3d P. M., containing one hundred forty-three acres (143) we find the damages to be three hundred eighty-five dollars ($385.)

To the fractional west one-half of section 22, township 29, north range 3, west 3d P. M., containing two hundred eighty-one (281) acres we find the damages to be four hundred twenty-five dollars ($425.00.)

To the west one-half and the southwest quarter of the northeast quarter and the north one-half of the southeast quarter of section 27, township 29, north range 3, Avest of the 3d P. M., containing four hundred forty (440) acres we find the damages to be four hundred seventy-five dollars ($475.00.)

To fractional section 28 in township 29, north of range 3, west of the 3d P. M., containing one hundred sixty-eight (168) acres we find the damages to be one hundred ninety-six dollars ($196.00.)

To the southwest quarter and the south west quarter of the northwest quarter and the east one-half of the northwest quarter and the northwest quarter of the northeast quarter all in section 34, township 29, north range 3, west of the 3d P. M., containing three hundred twenty (320) acres we find the damages to be one hundred thirty-five dollars ($135.00.)

All of which sums for damages so allowed and assessed in the aggregate amount to $2,466.00 and we hereby award to the heirs of the said Greenburry L. Fort the sum of $2,466.00 as and for the damages by them sustained on account of the said claim so filed by their ancestor the said Greenburry L. Fort as above stated; they having been substituted as claimants since the death of the said Greenburry L. Fort whose death was suggested and sufficiently and satisfactorily made to. appear.