3. The surplus water can not be stored or annihilated, and the course of drainage is indicated, in most places determined by nature, in the drainage depressions which are nature's outlets.
4. The law of gravity, with or without man's work, is constant and active in moving the waters to the lower level. The ditcher's art is to remove the obstacles to a freer flow.
5. Excessive water is a foe to agriculture; and for the general good it should be collected into channels, and as speedily as possible passed along on its inevitable journey.
Objections answered.—It is said to be a universal law maxim, "that you may use your own as you will, but not to the detriment of your neighbor," and that this principle forbids this kind of drainage. This maxim may be general, but it is not universal. My neighbor may have built his house and other domestic arrangements in the lee of a natural grove of timber on my land. The removal of this grove may be a real grievance by giving the wind too free a sweep; yet my right to change this waste into a grain field will not be questioned. My warranty deed is my right thus to improve my land, though it be "to the detriment of my neighbor." He should have foreseen the contingency of a removal of these woods. On like principles a land owner may remove an excess of water so as to raise corn and not rushes. In the removal of woods my neighbor may not have an immediate remedy for his ills, but the effect of my ditches may be turned to good account by continuing them, and thus improving his land as I have mine. My warranty deed is my right to cultivate my own land, and this right carries the right to cultivate it in the best manner. The lower man should have taken judicial notice that water runs down hill, and that in this progressive age ditches may be cut and tiles laid.
But it is said that this court decision follows the English Common law; and now being settled by a decision, it is not open for further consideration. In this progressive age nothing is settled until it is settled right. Judge Taney once judicially settled the status of the African race. The common law was held to forbid the bridging of navigable streams. Harbors could only be made where the water was salt and affected by the tides. The Dartmouth college decision was held to so cover railroad corporations as to shield them from legislative control. These have all been overturned by the march of events, and this Appellate court decision is not necessarily immortal. For fifty years the farmers of Illinois knew no such rule. The public roads have been improved by side ditches which dropped the water into the first depression. In 1873 there was placed in the road law a provision that a land owner may drain on the public road by giving timely notice, and this stands through all revisions. Blackstone in his commentaries does not class this kind of drainage as a nuisance or trespass to lower lands, but he does its opposite, where the lower man neglects to "scour" a ditch, and thus sets back the water to the harm of the upper man. If this court rule is common law, as claimed, then it may be further said that a rule for the dark ages when drainage was exceptional, is not necessarily the true rule, since drainage has become so large a part of good agriculture.
Action of the General Assembly.—Early in the last session, bills were introduced into each House to overturn this court decision. These were defeated, but late in the session there passed with much unanimity a bill of the following title, which became a law: "An act to permit owners of land to construct drains for agricultural purposes." Sec. 1 of this act reads as follows: "That the owner or owners of land in this State shall be permitted to construct drains for agricultural purposes, only, into any natural water-course or any natural depression whereby the water will be carried into any natural water-course, or any drain on the public highway, if the road commissioners consent thereto, for the purpose of securing proper drainage to such land, without being liable in damages therefor to any other person or persons or corporation." This was intended to establish the right of "individual drainage."
But we are told that the courts will not respect this law, for the reason that it seeks to legalize trespass.
Here we join issue with our objectors and stand by this declaratory law. It embodies the general opinion and practice of the people; it is plainly conformable to the physical laws of nature and the requirements of civilization. Lands are held subject to laws thus grounded, and these considerations will not tolerate laws or decisions the very opposite.
These declarations are not much more radical than a declaration that we stand by the law of gravity as constitutional.
The public are busy in overturning this court decision by everywhere disregarding it. The few who stopped draining in deference to the court, have resumed under shelter of the statute. If all violators should be prosecuted with vigor, tile-making might decline, but courting would be lively. Courts and judges must be multiplied, and every lawyer in the State would have fat business for the next ten years. Some judge will soon give us a precedent in accordance with reason, and this will settle the matter as effectually as did one taste of the tree of knowledge reveal good and evil. It will soon be seen that individual interest is best promoted by general and free drainage—that presumption should be in its favor, and that one man should not be clothed with power to stop others from making improvements.