The court found the Gillespies' berm most likely increased the flow of water in the existing ditch between the Walsh and Gillespie homes but did not obstruct the “natural flow of drainage” because the “ ‘natural flow’ was channelized some time ago into the ditch.” Relying on Bollweg v. Richard Marker Associates, Inc., 353 Ill.App.3d 560, 288 Ill.Dec. 938, 818 N.E.2d 873 (2004), the court concluded that the balance of hardships favored the Gillespies. Thus, the court denied the Swigerts' request for injunctive relief but precluded the Gillespies from taking any further steps to alter the flow of water from the Swigert property without the Swigerts' permission.
Illinois follows, and has partially codified, the "civil rule," which provides that the holder of the dominant estate has an implied easement in servient tracts to the extent of any natural water run-off. See Bollweg v. Richard Marker Assocs., Inc., 818 N.E. 2d 873, 884 (Ill. App. Ct. 2004); 70 ILCS 605/2-1. The dominant, or higher, estate has the right to allow surface water to follow the natural course of drainage onto the lower estate and may also construct artificial ditches or drains to more efficiently carry away surface water.
In regulating the natural flow of surface water between adjacent landowners, Illinois recognizes the “civil law rule,” which is reflected in section 2–1 of the Drainage Code (70 ILCS 605/2–1 (West 2010) (land may be drained in the general course of natural drainage)). Bollweg v. Richard Marker Associates, Inc., 353 Ill.App.3d 560, 573, 288 Ill.Dec. 938, 818 N.E.2d 873 (2004). Under that rule, the owner of a dominant (higher) parcel of land is given an easement in a servient (lower) parcel to allow surface water to naturally flow from the dominant land to the servient land.
The good-husbandry exception allowed the owner of the dominant land to change the natural flow of surface water upon the servient land if such change was necessary to the reasonable development of the dominant land for agricultural purposes. Hahn v. County of Kane, 2012 IL App (2d) 110060, ¶ 18, 358 Ill.Dec. 194, 964 N.E.2d 1216;Bollweg v. Richard Marker Associates, Inc., 353 Ill.App.3d 560, 574, 288 Ill.Dec. 938, 818 N.E.2d 873 (2004); Bossler v. Countryside Gardens, Inc., 44 Ill.App.3d 423, 424, 3 Ill.Dec. 185, 358 N.E.2d 352 (1976). ¶ 28 Originally, as its name suggests, the good-husbandry exception applied only to agricultural land, but, eventually, in Templeton, 57 Ill.2d at 141, 311 N.E.2d 141, the supreme court applied an analogous test of reasonableness to changing the flow of surface water in urban settings.
Rather, Sullivan requires consent for all substantial changes, including, but not limited to, changes that effect a substitution of servitude. That is, a substitution of servitude is merely a subset of the broader category of substantial changes, not a precondition to the application of the substantiality test. This reading is consistent with the way in which Sullivan has been interpreted in subsequent cases, which look to the substantiality of the change made to the easement but do not require as a separate precondition that the change effect a substitution of servitude. For instance, in Bollweg v. Richard Marker Associates, Inc., 353 Ill. App. 3d 560, 573, 818 N.E.2d 873, 884 (2004), the court quotes the language from Sullivan that McGoey seeks to rely upon, but then proceeds to conduct a substantiality analysis even though no change has occurred in the identity of the burdened party. The Bollweg defendant had an easement on plaintiff's land for an agricultural drain tile that allowed rainwater to flow off defendant's land, through plaintiff's land, and then into a nearby stream.
The trial court must also consider whether the balance of hardships to the parties supports granting the injunction. Bollweg v. Richard Marker Associates, Inc., 353 Ill. App. 3d 560, 572 (2004). The party seeking injunctive relief does not carry the same burden of proof that is required to prevail on the ultimate issue.
This is known as the “civil rule.” See Bollweg v. Richard Marker Associates, Inc., 353 Ill.App.3d 560, 573–74, 288 Ill.Dec. 938, 818 N.E.2d 873 (2004). The owner of the servient estate is not required to receive surface water in different quantities or at different times than would come to his land ordinarily; however, pursuant to the “good husbandry” exception, the owner of a dominant estate may increase or alter the flow of water upon a servient estate if it is required for the proper husbandry or reasonable development of the dominant estate.
The trial court may also deny a preliminary injunction where the balance of hardships does not favor the moving party. Bollweg v. Richard Marker Associates, Inc., 353 Ill. App. 3d 560, 572, 818 N.E.2d 873, 883 (2004). The party seeking a preliminary injunction must raise a fair question as to each element required to obtain the injunction.
Memo. at 9 (citing Lucas v. Peters, 741 N.E.2d 313 (Ill.App.Ct. 2000); Bollweg v. Richard Marker Assoc., Inc., 818 N.E.2d 873 (Ill.App.Ct. 2004)). Last, Madden posits that because Amazon did not seek and obtain a special use permit, Amazon failed to provide notice to residents and she could not participate in a public hearing, which she describes as a quasi-judicial proceeding.
"[T]he owner of the dominant or higher land has a natural easement over the servient or lower land to allow surface water to flow naturally off the dominant estate and onto the servient estate." Bollweg v. Richard Marker Assocs., Inc., 353 Ill.App.3d 560, 573-74, 818 N.E.2d 873, 884 (2004). However, this right to increase waterflow or runoff is not unlimited; the increase must be reasonable.