city, or incorporated town so annexed to | tion act for cities and villages, and the another may be collected and enforced with like force and effect, as though such annexation had not taken place, in the name of the city, village, or incorporated town so annexed." Upon the annexation of the town of Lake to the city of Chicago the jurisdiction of the city extended over the territory which had been within the corporate limits of the latter, (see section 1 of the act;) and thereupon the town of Lake ceased to exist as a municipal corporation capable of exercising corporate powers and functions. Prior to annexation, the town of Lake was the trustee and agent for the public in the matter of the establishment and maintenance of public streets and highways within said territory, and thereafter the city of Chi-nation is sought, or abandon the location proceedings which culminated in the judg. ment of January 12, 1889, were under such provisions. Martin v. People, 87 III. 524. Section 14 of the article provides: “Any final judgment or judgments rendered by said court, upon any finding or findings of any jury or juries, shall be a lawful and sufficient condemnation of the land or prop❘erty to be taken, upon the payment of the amount of such finding as hereinafter provided. It shall be final and conclusive as to the damages caused by such improvement," etc. A municipal corporation seeking to condemn real estate for public use may, after the assessment of damages and judgment of condemnation, abandon the enterprise in aid of which the condem * * * of the route selected, and adopt some other; and unless within a reasonable time the damages are paid and possession taken of the property condemned, the condemnation proceedings will be regarded as abandoned. City of Chicago v. Barbian, supra. Here, there was no abandonment of the enterprise or of the location and route of Sixtieth street. As already stated, the judgment of condemnation was on January 12, 1889, and on January 27, 1890, the city of Chicago passed an ordinance for the opening of the same street, in the same manner, upon the same route, and through the same property designated and specified in the ordinance as of the town of Lake upon which said judgment of condemnation was predicated. The principal question at issue seems to be whether or not when a municipal corporation is the petitioner in condemna❘tion proceedings, it can ignore an assessment of damages made at its instance, and a judgment of condemnation procured by it, and by filing a new petition obtain a reassessment of damages by another jury. The statutory provision that the final judgment rendered by the court cago became and was such trustee and agent. By the terms of the statute above quoted the judgment that was obtained on January 12, 1889, for and on behalf of the town of Lake, authorizing it to take possession of the strip of land under consideration upon payment of the ascertained compensation of $900, could, notwithstanding the annexation that had been accomplished, "be enforced with like force and effect as though such annexation had not taken place." While the statute provides that such enforcement is to be "in the name of the incorporated townso annexed," yet, since from and after the annexation the town ceased to have corporate officers and agents of its own, and ceased to exist as an actual and organized town endowed with capacity to act in the premises, it is manifest that enforcement of the judgment of condemnation, by paying the ascertained just compensation, and taking possession of the strip of land condemned, and opening a public street over the same, could be accomplished at the election and by the act of the city of Chicago, and not otherwise. The statutory provision last men tioned, in effect, authorizes the municipal | shall be final and conclusive as to the corporation to which an annexation is made to enforce any judgment obtained for or on behalf of the city, village, or town which is subsequently annexed toit, and to use the name of the corporation annexed in so doing. We think there can be no doubt but that the city of Chicago succeeded to the right that had accrued to the town of Lake by the rendition of the judgment, and that it might atits election have taken possession of the property condemned, after paying the just compensation awarded to appellant in the proceed ing instituted by said town of Lake. The rights of the parties are correlative, and damages caused by the improvement would seem to determine this matter adversely to the claims of appellee. It is urged, however, that the judgment in condemnation is conditional; that the property owner has no vested right in the compensation fixed by the judgment; and that the petitioner may abandon the proceedings at any time before the compensation is paid or possession taken. It is sticking in the bark to say that there was here an abandonment of condemnation proceedings. That which the doctrine invoked contemplates is an abandonment in good faith, an abandonment of the im have a reciprocal relation. City of Chi-provement contemplated, or a change of cago v. Barbian, 80 111. 482. The city having the right to avail of the judgment that had been obtained by the town, it follows that all the obligations and burdens that the judgment imposed upon the town were, upon annexation, shifted to the shoulders of the city. In other words, the city stands in the shoes of the town, and the act of the town in obtaining the judgment of condemnation is to be regard ed as the act of the city. The town of Lake adopted the provisions of article 9 of the general incorpora location or route, or an abandonment of the design of taking the particular property involved for public use. To permit a corporation clothed with the right of eminent domain to abandon any judicial ascertainment of value that does not conforin to its wishes, and through the instrumentality of new petitions submit anew the question of just compensation to successive juries, until a verdict is returned which it regards as sufficiently low, would be to give an undue advantage to one of the parties to the contro vated field, from which there is no natural outlet, since the right of drainage is the same whether the land to be drained belongs to an individual or to the public. versy, and to work a rank injustice to the | to conduct the water to a low part of a culticitizen and property owner. Even without regard to the statute that the first assessinent shall be final and conclusive as to the amount of the damages, both reason and authority would lead to the conclusion that such must be the law. Hupert v. Anderson, 35 Iowa, 578; City of St. Joseph v. Hamilton, 43 Mo. 282; Rogers v. City of St. Charles, 3 Mo. App. 41. We think, however, that the superior court properly sustained the demurrer to the bill, and dissolved the temporary injunction, and dismissed the suit. The appellant had an adequate remedy at law, and the case stated in the bill did not call for the interposition of a court of equity, or show grounds that would give a court of chancery jurisdiction. In the matter of the petition exhibited by the city in the circuit court for the condemnation of the strip of land, which is part of the right of way of appellant, it was not competent, under the statute, for appellant to either answer or plead to the petition, and the only question that could there be tried by a jury was the question of damages. But the courts of the state which are authorized to entertain petitions for the exercise of the right of eminent domain are clothed with ample power to prevent any abuses of the right. Smith v. Railroad Co., 105 Ill. 511; Railroad Co. v. Wiltse, 116 Ill. 449, 6 N. E. Rep. 49. In said attempted condemnation proceeding in the circuit court the right to a second condemnation of the strip of ground for the purposes of a public street could readily have been contested by a preliminary motion, and submitted to the decision of the court. No reason is perceived why such motion could not have been entered and supported by affidavits and certified copies of the judgment of condemnation rendered in the superior court, and of the ordinances of the town of Lake upon which such judgment was based. In Railroad Co. v. Dix, 109 III. 237, a motion to dismiss the petition was entered, and affidavits in support of such motion filed, and also counter affidavits, and the practice there adopted was approved by this court. See, also, Chicago & N. W. Ry. Co. v. Chicago & E. R. Co., 112 Ill. 589; Railroad Co. v. Wiltse, supra; Ward v. Railroad Co., 119 III. 287, 10 N. E. Rep. 365; Illinois Cent. R. Co. v. Chicago, B. & N. R. Co., 122 Ill. 473, 13 N. E. Rep. 140; Lake Shore & M. S. Ry. Co. v. Chicago & W. I. R. Co., 96 Ill. 125; Peoria, P. & J. R. Co. v. Peoria & S. R. Co., 66 Ill. 174; Illinois Cent. R. Co. v. City of Chicago, (Ill. Sup.) 28 N. E. Rep. 740. The decree is affirmed. (143 Ill. 425) GRAHAM et al., Highway Commissioners, v. KEENE.1 (Supreme Court of Illinois. Oct. 31, 1892.) DRAINAGE POWERS OF HIGHWAY COMMISSIONERS -ESTOPPEL. 1. Commissioners of highways have no right to construct a ditch from a pond adjoining a highway across a natural elevation, so as Reported by Louis Boisot, Jr., Esq., of the Chicago bar. 2. The fact that the owner of a field has not objected to the partial excavation of an adjoining elevation, which results in part of the water of a pond draining into his field, does not estop him from objecting to a further excavation, which will result in throwing all the water of the pond into his field. 34 Ill. App. 87, affirmed. Error to appellate court, second district. Bill for injunction, brought by George M. Keene against Andrew Graham, C. A. Dewey, and John A. Olson, commissioners of highways of the town of Victor, and Joseph Smith, to restrain the construction of a proposed drain or ditch. Complainant obtained a decree, which was affirmed by the appellate court. Defendants bring error. Affirmed. H.A. Jones, for plaintiffs in error. Carnes & Dunton and L. Lowell, for defendant in error. BAKER, J. The appellee, George M. Keene, is the owner of a farm consisting of two quarter sections of land, one of said quarter sections lying north of a public highway which runs east and west, and the other lying south of said highway, and the west line of said farm is coincident with the west lines of the two sections in which said quarter sections are respectively located. In this highway, and about seven or eight rods west of the west line of the premises of appellee, is a pond or sag hole, and some years ago a roadway was thrown up or up or "picked up" through this pond, the principal part of the pond being to the north of the thrownup road, and a sluice was made through the embankment to allow the water to escape to the south, but the sluice was at times insufficient in size to carry the volume of accumulated water, and has been allowed to get out of repair, and become obstructed. There are in that locality two small valleys, lying side by side, and separated by a narrow strip or ridge of high ground. Both valleys slope to the south or southeast, and both drain into a ravine or swale that crosses their southern extremities. The highway crosses these two valleys from 25 to 35 rods north of the ravine. The pond above mentioned is in the west valley, and is formed by surface water. The natural flow and drainage of the surface water from the land north of the highway and west of the north half of the farm of appellee is into this pond; and the natural flow and drainage from the pond and from that portion of the highway that lies west of the west line of the premises of appellee is through the west valley, first in a southerly, and then in an easterly, direction, first flowing upon the tract of land immediately west of the south half of appellee's farm, and then flowing upon appellee's land, and into the ravine or swale above mentioned. The east valley runs through the lands of appellee, and where the highway crosses it, and about 25 rods east of the pond, there is also a sluiceway for water. The original and natural elevation of the ridge be tween the two sluiceways was some three feet above the surface of the valleys on either side, but from time to time for many years past earth has been excavated on the north side of the highway for constructing the thrown-up road, and for repairing the highway, and by various individuals for their own private purposes. The result is, the sluiceway at the pond being small and partially obstructed and filled up, that in times of high water, and for a number of years, the water from the pond has to some extent flowed through way commissioners-has a right to have the surface water falling or coming nat. urally upon the highway pass off the same through the natural and usual channel or outlet upon and over the lower lands lying north and east of the pond in question, and has the right to construct ditches or drains for the purpose of conducting said surface water and the water in the pond on said highway into said natural and usual channel or outlet, even if the water thus carried upon said lower lands is thereby increased. Peck v. Her said excavation in the ridge, and through | rington, 109 111. 611. As we have already the east sluicewy, and upon the land of appellee. A further excavation of a foot or 18 inches would permit the water to flow freely from the pond and from the western valley to the eastern valley and sluiceway, and substantially drain the pond. The commissioners of highways of the town of Victor, who are plaintiffs in error herein, madearrangementstofurther excavate through the ridge, and make such a ditch along the north side of the highway as would conduct all the waters of the west valley and of the pond north of the highway through the east sluiceway, and discharge them upon the premises of appellee. The place of the discharge of such waters would be in a plowed and cultivat. ed field, and in a basin where the water would have to stand on the land to a depth of 12 or 14 inches before it would be gin to flow away. The burden of water already imposed on said field by the east sluice and otherwise is already so great as that it is with difficulty susceptible of cultivation, and the proposed additional discharge of water thereon would rendertion or ridge, which, in thestate of nature, seen, the natural outlet for the surface water from that portion of the highway that lies west of the section line and west of the elevation or ridge above mentioned, and from the land immediately adjoining it on the north, and of the surface water contained in the pond, is through the tract of land directly south of the pond, and thence in an easterly direction into a ravine or swale on the land of appellee. As between said portion of the highway and that part of the land of appellee that lies in the west valley, and through which the water naturally flows to the ravine orswale, the relation of dominant estate and servient estate exists. But, as we understand the pleadings and the proof, the land in that portion of the south quarter section of appellee's farm that adjoins the highway east of the section line, and upon which his cultivated field is situated, cannot justly be considered as servient to the land in the highway that lies in a different section, and from which it is separated by an eleva it unavailable for the purposes of tillage. The road on each side of and through the pond or sag hole is a good one, and there exists no necessity for the construction of the proposed ditch for the purpose of improving or repairing the highway. The above are the substantial facts of was several feet higher than the surface of the soil on either side, and over which it was impossible that water could flow. The place in the field where the water from the proposed ditch would be discharged is a sort of basin, and there is no natural outlet or channel from it; and this case, briefly stated, as they are alleged | from its location, and by means of the in the bill for an injunction that was filed by appellee for the purpose of restraining the highway commissioners and their employes from excavating and opening the proposed ditch or drain along the north side of the highway and through the ridge or elevation near the west line of appellee's farm, and as they were reported by the master in chancery in his findings of fact, and as they were found at the hearing in the decree of the circuit court, and by the appellate court upon the appeal to that court; and the facts thus stated are, in our opinion, amply established by the evidence in the record. The right to drain upon and over lower or servient lands, without making compensation for such privilege, is the same whether the dominant land is the farm of east sluiceway, it is already burdened with the surface water from that portion of the highway that is east of the ridge, and from seven or eight acres of land that lie north of that part of the road; and to now divert the surface water west of the ridge from its natural channel, and drain the pond by the proposed ditch, and by a route other than its natural outlet, would be to impose upon said field a still greater burden by casting upon it this additional and foreign water. This the highway commissioners have no lawful right to do. The owner of the higher land is not authorized by the law to dig through or remove natural barriers, and thereby let onto adjoining lower lands water that would not otherwisenaturally flow in that direction. Nevins v. City of an individual owner or is a public high-Peoria, 41 111.502; Gillham v. Railroad Co., way. To hold otherwise would be to 49 111. 484; Railroad Co. v. Cox, 91 111.500; disregard the constitutional inhibition | Peck v. Herrington, 109 III. 611; Totel v. against taking or damaging private property for public use without making just compensation. In this state the same rule is applied to surface water flowing in a natural and regular channel that is applied to a running stream or water course. The public-represented here by the high Bonnefoy, 123 111. 653, 14 N. E. Rep. 687. And in such case, and where it is reasonably certain from the evidence that the proposed act of the proprietor of the higher land will cause a substantial and irreparable injury to the private rights of the owner of the lower land by creating a private nuisance on his premises, a court of equity will afford relief by decreeing an injunction. Hicks v. Silliman, 93 Ill. 255; Thornton v. Roll, 118 Ill. 350, 8 N. E. Rep. 145; Anderson v. Henderson, 124 Ill. 164, 16 N. E. Rep. 232; Hotz v. Hoyt, 135 III. 388, 25 N. E. Rep. 753. It is urged that the case last citedHotz v. Hoyt-is on all fours with the case at bar, and conclusively settles it adversely to appellee. We do not so understand that case. Here the effect of the proposed ditch would be to conduct the water from the pond into a sink or basin in the tilled field of appellee, and the practical result would be to transfer the pond from its present location in the highway to said field. There the proposed ditch would have discharged its waters into the Hoffman branch; and the decision was based upon the ground that the evidence did not satisfactorily show that the work contemplated by the highway commissioners would have materially changed the flow of the water, to the injury of the appellee. It appears that the road through the pond was constructed some 15 or 17 years prior to the hearing of this cause: that the earth used for the purpose of making it was scraped from the ridge east of the pond and on the north side of the highway; that there was a sluiceway though the road so made; that earth was from time to time thereafter taken from said north side of the highway for the purpose of repairing and working the road, and earth from time to time taken therefrom by private persons for purposes of their own; that the sluiceway through the road was too small to thoroughly and expeditiously accomplish the drainage for which it was intended; that it was permitted to become obstructed, and out of repair; and that the result has been that for some 10 or 12 years past the waters that in times of high water have accumulated in the pond have backed up, and have been forced to run east on the north side of the road, through the ditch or depression made by the removals of earth therefrom, and to find an outlet through the east sluice way, on the plowed land of appellee. The excavations of earth that were made on said ridge were not made or intended for the purpose of draining the pond or the land or the highway west of the ridge. It is manifest that no right by prescription to drain the surface water from said land and highway onto the cultivated field of appellee that lies immediately south of the east sluiceway is shown by the evidence. Nor does the fact that appellee and his grantors have for 10 or 12 years permitted, without objection, the limited amount of surplus water that has in times of extreme high water accumulated in the pond to flow through the excavation or ditch that has gradually been made across the ridge and into the field in question estop appellee from now claiming that he shall not be further injured by the removal of a foot or 18 inches more of earth from the excavation on the ridge, and by the precipitation upon said field of all the water contained in said pond, and all the surface water of the highway and the adjoining lands that naturally flow to said pond, and through it to the land that lies immediately south of the pond. It may be that to lessen the number of sluice ways across the highway would improve the road, and be less expensive, but the public have no lawful right to obtain these benefits by doing an injury to the vested property rights of appellee, without making just compensation. We find no error in the record. The judgment of the appellate court is affirmed. (143 Ill. 182) GIBSON v. LEONARD.1 (Supreme Court of Illinois. Oct. 31, 1892.) NEGLIGENCE-DANGEROUS PREMISES-FIRE PATROL -INJURIES TO LICENSEE-MUNICIPAL ORDINANCE -REGULATION OF ELEVATORS. 1. A person who breaks into a building to protect property from fire is a mere licensee, to whom the owner owes no duty to keep the premises in safe repair. 37 Ill. App. 344, affirmed. 2. Rev. St. Ill. 1891, c. 142, § 1, which gives the members of a fire patrol the right to enter buildings exposed to fire, does not give them any greater rights than those of mere licensees. 3. Where an elevator leading from the basement to the first floor is so constructed as to show that it is intended for freight, and it is left at night on the basement floor, loaded with merchandise, a mere licensee who uses the elevator to go from the first floor to the basement, when he might have gone down another way, assumes the risk of the elevator being out of order, since he has no implied invitation to use the elevator. 4. City ordinances requiring elevators to be built and protected in a certain way, and to be periodically inspected, do not create a civil liability against a person who violates them towards one who is injured by an accident that was in no way caused by such violation. 5. A city ordinance which requires machinery that is so located as to endanger the lives and limbs of those employed in the building to be so covered or guarded to insure against injury to such employes, gives no right of action to an injured person who is not an employe. Appeal from appellate court, first district. Action on the case by Freeborn Gibson against James Leonard and Louis S. Sues to recover damages for personal injuries. Before the trial, defendant Sues died, and suit was dismissed as to him. The court instructed a verdict for the defendant Leonard, which was affirmed by the appellate court. Plaintiff appeals. Affirmed. Brandt & Hoffmann and J. S. Kennard, Jr., for appellant. S. L. Boyce, Walker & Eddy, and H. H. Martiu, for appellee. BAKER, J. James Leonard, appellee, was owner of the building on West Lake street, in the city of Chicago, which was numbered 47 and 49. It was constructed of brick, was four stories and a basement high, and was occupied by various tenants for business purposes. The main floor and basement were leased to one Sues, who carried on therein a wholesale liquor business. The lease to said Sues was dated May 1, 1888, and at the time of the fire herein mentioned the premises and the hoist or elevator thereon were in Reported by Louis Boisot, Jr., Esq., of the Chicago bar. vent it from injuring persons in or about the elevator, when it was easily practicable to have covered, boxed, or guarded it; and it is also charged that the rope by which the counterweight was suspended and moved up and down was of insufficient size and strength, and old and rotten, and of insufficient strength to hold the weight, and highly dangerous to persons using, operating, or about the eleva. tor. substantially the same condition that | out any box or cover around it to prethey were in at the date of the demise. Said elevator ran only from the main floor to the basement, and it consisted of an uninclosed floor or platform about six feet long and four feet wide, with an upright timberat each end and acrossbeam at the top, uniting them, and to the center of the crossbeam a rope was attached. It is not necessary to state anything further in regard to the construction of the elevator and the mechanism connected with it, except to remark that there was a counterweight, which consisted of a piece of cast iron 3 feet long, some 14 or 16 inches wide, and 3 inches thick, and a rope by which said counterweight was suspended and The fundamental inquiry in this case is whether or not appellee owed a duty to appellant to so construct, keep, and maintain the elevator orhoisting apparatus as that it should be a safe means for his moved up and down. Shortly before mid-transportation from one story of the building' to another? Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary care and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill. The owner of land and of buildings assumes no duty to one who is on his premises by permission only as a mere licensee, except that he will refrain from willful or affirmative acts which are injurious. As was said in Sweeny v. Railroad Co., 10 Allen, 368: "A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by night of May 28, 1888, a fire broke out in the upper stories of the building in question. Freeborn Gibson, the appellant herein, was a member of the fire insurance patrol. The company to which he be longed responded to the alarm, but when it got to the scene of the fire the engines were already at work, throwing water. The patrol forced open the door of the main floor, and spread waterproof tarpaulins over the goods stored there. There was an outside pair of stairs that led to the basement, but the door at the foot of the stairs and leading into the basement was locked, and also braced on the inside and barricaded with goods. There were no stairs inside the building | the owner or occupant, cannot recover 66 damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils." When, at the time of the fire, the members of the fire patrol forced open the door, and entered the main floor and basement of the building, they were not trespassers; nor did they enter the premises by virtue of a license, either express or implied, from either appellee, the owner of the building, or Sues, his tenant. The facts that the premises were closed for the night, that the doors were all locked and barred, that no ingress was possible without using force and violence and breaking thedoors, and that thelawful owners and occupants were all absent, and had no knowledge of either the fire or the proposed entry, and all the other surrounding circumstances, preclude any theory of license from the owner or tenant. A license to enter upon the land and premises of another is not always based on the permission of the owner; it is sometimes given by the law. In Cooley on Torts (page 313) it is said: "A third class of licenses comprehends those cases in which the from the main floor to the basement, and the only inside communication from the one to the other was the elevatoror hoist. The platform of the elevator was on the basement floor, and two or three barrels of whisky were standing on it. When the goods on the main floor had been covered with tarpaulins, two of the patrol jumped from the main floor to the heads of the barrels, and then spread a few tarpaulins in the basement. In the mean time the other members of the patrol were sweeping water from the main floor. By the direction of the superintendent of the patrol the two men in the basement then rolled the barrels of whisky from the elevator, and when this was done they were raised with the elevator to the main floor by the superintendent. Shortly afterwards the superintendent ordered six of the patrol to go to the basement, and when they got on the elevator he proceeded to let them down by means of certain ropes forming part of the mechanism. When the elevator was within a very short distance of the basement floor the rope which held the counterweight broke at a distance of about 15 inches above said weight, and the weight became detached | law gives permission to enter a man's from the part up and down which it trav- | premises. This permission has no neceseled, and it fell a distance of about 16 feet ||sary connection with the owner's interest, to the bottom of the basement. Gibson, the appellant, was one of the men on the elevator, and the counterweight fell on one of his legs, and drove it through the floor of the elevator, and so injured it as that it had to be amputated above the knee. It is charged in the declaration that the counterweight was insecurely fastened in grooves which wereinsufficient and is always given on public grounds. An instance is where a fire breaks out in a city. Here the public authorities, and even private individuals, may enter upon adjacent premises, as they may find it necessary or convenient, in their efforts toextinguish or to arrest the spread of the flames." In Proctor v. Adams, 113 Mass. 376, GRAY, C. J., said: "In such a case, for the purpose, and that it was in a high-though they had no permission from the Ay unsafe and dangerous condition with- plaintiff or any other person, they had an |