Swigert v. Gillespie

Illinois Appellate Court
Civil Court
Case Number: 
2012 IL App (4th) 120043
Decision Date: 
September 21, 2012
4th Dist
Macon Co.
Reversed and remanded.
Plaintiffs filed for injunctive relief against their neighbors who had constructed a dirt berm along property boundary line, alleging that berm cause water to back up and "pond on their properties. Court erred by balancing the hardships, which had the effect of allowing Defendants to obstruct the flow of water from Plaintiffs' property. Where a dominant estate alters the flow of water to a servient estate, the court should apply a reasonable-use rule, but where obstruction by the servient estate is in issue, the court is not required to apply the reasonable-use rule. As Plaintiffs' engineering expert testified that the berm could affect drainage onto the co-Plaintiffs' property, and water could ultimately flow over the ridgeline and drain toward their property, court's finding that co-Plaintiffs' claims were not supported by evidence was against manifest weight of evidence. (POPE and KNECHT, concurring.)