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No. 2--04--0698

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Plaintiff, Michael J. Bollweg, obtained a preliminary injunction preventing defendant, RichardMarker Associates, Inc., from changing the existing flow of water from defendant's property acrossplaintiff's property. Defendant has brought this interlocutory appeal. We affirm.

On November 5, 2003, plaintiff filed a complaint for damages and injunctive relief. He anddefendant own adjoining properties. Plaintiff's property lies between defendant's property and the FoxRiver. Defendant began developing its property, once agricultural, into a residential development. Plaintiff alleged that, before the development, the storm water that fell onto defendant's propertyeither seeped into the ground or flowed across plaintiff's property in a natural sheeting fashion. According to plaintiff, the development altered the natural flow of storm water and caused excesswater, silt, and debris to flow onto his property. Defendant raised the affirmative defenses that (1)its storm water management system complied with the relevant municipal ordinances; (2) the "uncleanhands" doctrine barred relief because plaintiff refused defendant's reasonable request to install at itscost an underground pipe to transport storm water across plaintiff's property; and (3) after learningof defendant's plans, plaintiff waited over one year, until after defendant began constructing the stormwater management system, to file suit.

On January 26, 2004, plaintiff moved for a preliminary injunction. The hearing on the motiontook place during eight sessions between March 15, 2004, and April 14, 2004. The evidence revealsthe following. Plaintiff's and defendant's properties were once part of the Taus farm. In 1986,plaintiff purchased 17 acres from the Taus family trust. He had the property rezoned for residentialuse and constructed his home on the property. Also, plaintiff uses his property as a commercialnursery. Plaintiff's property is in unincorporated Kendall County. The remainder of the Tausproperty continued to be used as a farm.

In October 2001, defendant contracted to purchase, for $4.28 million, 129 acres from theTaus family trust for the purpose of constructing 262 single-family homes. The final subdivision platwas recorded in July 2002, and the City of Yorkville (City) annexed the property. Defendant closedon the sale in January 2003. The City approved the final engineering plans during the summer of2003, and construction began in August 2003. Defendant's property is immediately north of plaintiff'sproperty. Nearby, south of plaintiff's property, is the Fox River.

Surface water from the southeast side of the Taus farm flowed into catchment No. 10, atributary near plaintiff's property line. From there, the water flowed into culverts underneathplaintiff's gravel driveway, which runs along the property line. After exiting the culverts, the waterflowed for some distance over grassy swale, over a wooded area, and then into a small stream onplaintiff's property. When both plaintiff's and defendant's properties were part of the Taus farm, anagricultural drain tile ran along the eastern edge of the property. The tile currently carries waterunder plaintiff's property and empties into the stream. The stream leaves plaintiff's property and flowsinto a pond. The pond empties into a canal lined with wood beams. The canal runs under a gravelroad and eventually empties into the Fox River. Plaintiff's home sits on the northeast corner of theproperty, about 150 feet from the path of drainage.

Surface water from the southwest side of the Taus farm flowed into catchment No. 17. Fromthere, it moved onto plaintiff's property and flowed through a culvert underneath plaintiff's driveway. The water flowed over open ground and then into plaintiff's woods.

Steven Roake, a civil engineer, testified that his firm, Roake and Associates, designed thestorm water management system for the development. Roake designed the system to comply withthe applicable Yorkville ordinances. Before defendant purchased its property, water from 62.7 acresof the Taus farm flowed into catchment No. 10. The engineering plans called for modifying thetopography of defendant's property so that more water will flow in the direction of catchment No.10. When the development is completed, surface water from 81 acres of defendant's property willflow into catchment No. 10. Roake testified that the development will result in an increase in theamount of storm water flowing into catchment No. 10, but he could not quantify the increase.

Defendant constructed retention ponds at the southwest and southeast corners of its property. A diaphragm regulates the release of water from the ponds. Water from the southeast pond isdischarged through a pipe that empties into a stilling basin containing a level spreader, which createsa "waterfall" rather than a "shooting" effect. The basin is lined with large rocks that help to filter outsediment before the water flows onto plaintiff's property. Water from the stilling basin flows acrossthe ground onto plaintiff's property and then into the culverts underneath plaintiff's driveway.

Underneath the stilling basin is perforated field drainage tile that allows residual water in thebasin to drain away. The perforated field tile is connected to an existing eight-inch agricultural tilethat ran across defendant's and plaintiff's properties. Defendant removed the agricultural tile on itsproperty except for a small segment that connects to the new perforated field tile. Defendant did notobtain plaintiff's consent to connect to the agricultural tile.

Roake testified that, because the flow from the pond will be regulated, it will take about threetimes as long for storm water to flow off of defendant's property. He acknowledged that the soil onplaintiff's property could become more saturated as a result. Roake opined, however, that defendant'sstorm water management system will benefit plaintiff because it will reduce the flow during peakdischarge periods. Before the development, 110 cubic feet of water flowed onto plaintiff's propertyper second. After the development, the flow will be reduced to 12 or 13 cubic feet per second. Theprimary effect the development will have on plaintiff's property is related to the duration of flowinstead of the amount of water.

Sometime before the preliminary approval of the project in November 2002, Roake met withplaintiff and viewed plaintiff's property. Roake proposed having defendant install at its own cost anunderground pipe across plaintiff's property, beginning at the southeast retention pond dischargepoint. Roake brought up structuring the arrangement as either an easement or a license. Plaintiffasked Roake to leave behind some wood stakes, which plaintiff used to mark where he wanted thepipe to be installed. Roake's crew surveyed plaintiff's property and incorporated the proposedlocation of the underground pipe into the engineering plans.

During the hearing to approve the annexation and the development, plaintiff spoke and statedthat he no longer desired any activity on his property. Roake testified that, at some point, plaintiffexpressed concern about his property being burdened by an easement.

James Koziol, a licensed public engineer, testified as plaintiff's expert. His firm is involvedin about 100 storm water management projects per year, about half of which involve the design ofstorm water management facilities. He performed a comparative analysis of the flow from defendant'sproperty onto plaintiff's property before and after the development. For a 100-year storm event, anadditional 1.49 million gallons of water, or 4.59 acre-feet, will flow across plaintiff's property afterdefendant's property is developed. This represents a 15% increase in the volume of runoff, which,according to Koziol, is typical for a development like the one defendant proposed.

Koziol's report states that he assumed that a 100-year storm produces 7.58 inches of rain. The computer-generated figures attached to the report appear to be based on an assumption of 8.47inches. Koziol acknowledged that the use of the higher figure would change his calculations.

Koziol also calculated flow durations for various storm events. For example, before thedevelopment, it took 19 hours for the water resulting from a one-year storm to drain across plaintiff'sproperty. After the development, the flow duration will be 134 hours. According to Koziol, soil thatis exposed to water for a longer time tends to become more saturated. He acknowledged, however,that, because of the reduced flow rate, the runoff after the development presented less risk of erosion, and it was less likely that the watercourses on plaintiff's property would overflow.

Koziol based his calculations on the assumption that, both before and after the development,water from 81 acres of defendant's property flowed onto plaintiff's property. When presented withthe information that, before the development, water from only 62.7 acres of defendant's propertyflowed onto plaintiff's property, Koziol testified that the change in flow would be greater.

Joseph Wywrot, Yorkville's city engineer, testified that the development will result in anincrease in the volume and duration of the flow across plaintiff's property. He reviewed the stormwater management plan to determine whether it complied with the Yorkville subdivision controlordinance but did not calculate the amount or duration of flow resulting from the development. According to Wywrot, the increase in the volume of storm water was not something that he neededto consider when determining whether the plan complied with the ordinance. To Wywrot'sknowledge, the agricultural tile left in place had not been inspected.

During the construction of the development, plaintiff called Wywrot more than once tocomplain of excess water flowing onto his property as a result of dewatering activities on defendant'sproperty. Wywrot contacted defendant's contractors, who remedied the problems. Wywrot testifiedthat the incidents were construction-related and will not occur after the development is completed.

Christopher Burke, a civil engineer, testified that he reviewed the storm water managementplan for defendant's development and opined that it complied with the Yorkville ordinance andprudent and sound engineering practices. The plan took advantage of the existing drainage conditionson plaintiff's property by allowing water to flow in the same pattern as before the development. Under the plan, the flow from the retention pond will be attenuated and will not adversely affectplaintiff's property.

Burke reviewed Koziol's water volume and flow duration figures and the accompanyingcomputer-generated calculations. Burke testified that Koziol's final figures were incorrect becausethey significantly overstated the durations as they appeared in the computer printout accompanyingKoziol's report. Burke concluded that, after the development is completed, only an additional .81acre-feet of water would flow onto plaintiff's property after a 100-year storm event. Thus, thedifference between the predevelopment and postdevelopment runoff conditions will not be as greatas Koziol claimed. Like Koziol, Burke relied on the assumption that, both before and after thedevelopment, runoff from 81 acres of defendant's property flowed onto plaintiff's property. Heacknowledged that the change in water volume would be greater if, before the development, runofffrom only 62.7 acres of defendant's property flowed onto plaintiff's property.

Clayton Marker, defendant's salesperson, testified that defendant has entered into contractsto sell about 160 of the lots on its property. Contracts on another 75 to 80 lots were imminent. Defendant had closed on the sale of one lot, and the closings on seven additional lots were pending. Late in 2001 or early in 2002, Clayton and his father, Richard Marker, met with plaintiff and his wife,Sherri Bollweg. Clayton denied that he or Richard told plaintiff and Sherri that, if they did not allowdefendant to construct an underground pipe, they would continually have water running across theirproperty. Also, Clayton was present during a meeting between Roake, plaintiff, and Sherri. Claytonnever heard Roake say that plaintiff will not like the way the water will flow across his propertywithout the underground pipe.

Richard Marker, defendant's president and principal shareholder, testified that defendantborrowed $3.5 million for the January 2003 closing on the property. In July 2003, defendantborrowed $18.7 million to finance the development. Defendant's loan costs total about $1,000 perday. Richard did not believe that defendant could continue doing business if an injunction were ineffect for more than a few months. An injunction could cause defendant to default on its loans andall of the contracts it has on the property. Richard acknowledged that, when defendant took on thedebt associated with the development, he knew that plaintiff objected to the storm water runoff andwas not going to grant defendant an easement.

The development plan calls for 2.02 units per acre. The Yorkville zoning ordinance allowsfor as many as 3.4 units per acre. On June 25, 2002, Richard met with plaintiff to discuss the stormwater runoff onto plaintiff's property. Richard recommended that plaintiff allow defendant to pay forand install an underground storm pipe on his property. Plaintiff seemed receptive to the idea. Richard never offered to compensate plaintiff for an easement across his property. He denied tellingplaintiff or Sherri that, without the underground pipe, they will have water running across theirproperty continually. He learned in November 2002 that plaintiff objected to storm water from thedevelopment flowing onto his property. In April 2003, defendant's attorney received two letters fromplaintiff's attorney objecting to the additional storm water runoff onto plaintiff's property. After thedevelopment is complete, the City will take title to the storm water management system.

Sherri Bollweg testified that she and plaintiff informed Richard during their first meeting thatthey did not want an underground pipe on their property. On September 2, 2003, January 21, 2004,and March 5, 2004, construction activities resulted in water flowing across plaintiff's property involumes and patterns that had not occurred since Sherri began living on the property in 1991. Thewater deposited silt onto plaintiff's property and caused erosion. During the January incident, waterflowed across the top of plaintiff's driveway. During the March incident, the water flowed for aboutone week, and, at one point, the stream of water flowing across the swale was about 50 feet wide. No water had flowed across plaintiff's property between the date the water from the March incidentstopped flowing and the date of Sherri's testimony, March 29, 2004. Sherri testified that there hadbeen less than one inch of rain the day before she testified and that no water flowed across plaintiff'sproperty as a result.

Plaintiff testified that water flowed from the Taus farm onto his property only after more thantwo to three inches of rain fell. The flow never lasted more than 24 hours. After defendant begandeveloping the property, the flow of water exiting the agricultural drain tile on plaintiff's propertyappeared to be greater than anything plaintiff had observed before. To plaintiff's knowledge, nobodyhas checked the integrity of the agricultural tile. Also, before defendant began developing theproperty, the water exiting the tile was clear. After the construction began, the water carried a greatdeal of sediment. A considerable amount of sediment has accumulated in plaintiff's stream and on hiswoodland. Plaintiff pumps water from the stream to water his trees. Plaintiff acknowledged thatthere were one or two occasions before defendant purchased the Taus property when silt from thefarm washed onto his property. Before construction began, the path of water flowing acrossplaintiff's property was never more than 15 to 20 feet wide. During the March 2004 incident, the pathwas over 50 feet wide and invaded part of his nursery. At the time of his testimony on March 30,2004, the ground near his nursery remained soggy, and his ability to bring equipment into the nurserywas limited. Plaintiff testified that it had rained since the March incident and that no water hadflowed across his property as a result of the rain.

Plaintiff testified about an additional release of water from defendant's property on February3, 2004, when the southwest retention pond overflowed during dewatering activities. Water flowedacross his property for about 24 hours. Plaintiff introduced video of the water flow across hisproperty that resulted from the construction-related incidents.

At no time did plaintiff tell defendant's representatives that he would grant defendant aneasement or a license across his property or that he would allow increased volumes of storm waterto flow across his property. Also, he did not grant defendant permission to connect to the agriculturaltile running under his land. During the June 25, 2003, meeting with Roake, plaintiff stated that hewas not interested in having his property torn up to install an underground pipe. Roake told plaintiffthat he will not like the flow of water over his property after the development is completed. Plaintiffacknowledged that he placed wood stakes on his property to mark the area that he and Roake haddiscussed surveying.

Denny Porter testified that he owned property south of plaintiff's property and adjacent to thecanal that carries water from plaintiff's property to the Fox River. Porter's parents purchased theproperty in 1960, and Porter purchased the property from his parents around 1998. Since 1960, therehave been several occasions after heavy rainfalls, including one in July 1996, when the canaloverflowed and flooded the road. Also, over the years, Porter has seen upstream silt flowing into thepond.

Donald Dressel, a water resources engineer with Christopher Burke Engineering, testified thathe performed water flow calculations based on Roake and Associates' plan for defendant'sdevelopment. According to Dressel, before the development, a one-year storm event caused 4.51acre-feet, or 1.47 million gallons, of water to flow onto plaintiff's property. The peak flow rate forsuch an event was 8.6 cubic feet per second, and it took the water 25 hours to drain. After thedevelopment, a one-year storm will cause 6.78 acre-feet, or 2.2 million gallons, of water to flow ontoplaintiff's property. The peak discharge rate will be 2.7 cubic feet per second, and the water will take75 hours to drain. Before the development, a 100-year storm produced a flow of 27.08 acre-feet, or8.8 gallons, of water. The peak discharge rate was 44 cubic feet per second, and the water took 25hours to drain. After the development, a 100-year storm will generate 36.85 acre-feet, or 12 milliongallons, of water. The peak discharge rate will be 11.9 cubic feet per second, and the water will take129 hours to drain.

Dressel viewed and photographed plaintiff's property on April 2, 2004. He testified that therewas some water exiting the southeast retention pond from the stilling basin and that it was clear. There was no water flowing through the pipes under plaintiff's driveway. The grassy swale area wasfirm and dry, and Dressel saw no silt deposits or signs of erosion. Trees that stood in or near theswale had mulch around their bases, and there were no signs that mulch had been washed away. Dressel saw plaintiff drive a golf cart across the swale. Along the stretch where the water enters thewooded area, the ground was covered with moss that appeared to have been there for some time. The tributary that runs along the wooded area contained no running water but was somewhat wet. The stream had one area of silt. Water from the agricultural drain tile was emptying into the stream. The water level rose to one inch below the bottom of the pipe, and the water was clear.

Dressel saw some erosion and a small amount of sediment in a 40-foot segment of the swalethat carries water from catchment No. 17. He saw no evidence of silting in the wooded areadownstream from the swale near catchment No. 17. The ground in these areas was dry. Dresseltestified that the stilling basin will filter most of the sediment before the water moves onto plaintiff'sproperty.

Gary Neyer, the project manager of defendant's development, testified that about 50% of theunderground improvements and some of the roadbeds and curbs are in place. Although there is moregrading work to be done on the southwest retention basin, the physical shape of the basin is complete,and the inlet and outlet pipes are in place. The grading work on the southeast basin is complete, andthe inlet and outlet pipes are in place. The southeast basin began operating on March 12, 2004.Neyer anticipated that the landscaping work on the southeast basin would be complete within twoweeks. The roads and underground improvements would be completed in June 2004. Defendant'swork on the development would be completed in July 2004. At that point, the home builders who purchased the lots from defendant would begin constructing homes.

On January 21, 2004, defendant's contractor was dewatering near the southwest basin in orderto install a deep sanitary line. That evening, Neyer received a report of water flowing onto plaintiff'sproperty. The following morning, Neyer went to the site and learned that the contractor had stoppedthe leak at about 8 p.m. the previous evening. Early in February 2004, one of the dewatering pipesleaked and spilled water onto plaintiff's property. Defendant's contractor repaired the leak. TheMarch 5, 2004, incident occurred while defendant's contractor was pumping water that hadaccumulated in the southeast basin. Neyer testified that all of the construction activities that hadcaused irregular amounts of water to flow onto plaintiff's property were completed, and he did notforesee any risk that such incidents would recur. Neyer had not seen any water flowing acrossplaintiff's property since March 15, 2004, even though there had been some rain.

In rebuttal, plaintiff testified that, in 1999, he and Porter had a heated argument about Porter'sson parking his vehicle on plaintiff's property. Plaintiff testified that some areas over which waterflowed remained wet and contained silt. Plaintiff introduced photographs purporting to show silt anderosion at certain locations on his property. Since the construction activities began, every rain eventproducing at least one-quarter inch of rain has caused silt to wash onto plaintiff's property.

The trial judge traveled to the site to view the property. The court ruled on June 4, 2004. The court initially cited the principle that an upper landowner bears the duty not to increase thenatural flow of surface water onto the property of an adjacent landowner. See Van Meter v. DarienPark District, 207 Ill. 2d 359, 369 (2003). According to the court, "[d]efendant does not deny thatthere is a substantial increase in the flow of water onto the Plaintiff's property due to thedevelopment." The trial court also found that "the increased volume of surface waters onto thePlaintiff's land is beyond a range consistent with a policy of reasonableness of use in any event." Considering the hardships that an injunction would cause defendant, the court stated that defendantproceeded with the development even though it knew beforehand that plaintiff would not grant aneasement and vigorously objected to the development because he feared an increase in the flow ofwater across his property.

The trial court issued a preliminary injunction preventing defendant from (1) continuing thedevelopment until it removes the unnatural accumulations of water or otherwise redesigns the stormwater management system to prevent such an unnatural accumulation; (2) using the preexistingagricultural drainage tile as a discharge outlet for the southeast basin; (3) draining the southeast basinthrough any unnatural method, including restrictor pipes, that would change the predevelopment flowof water across plaintiff's property; and (4) from causing unnaturally accumulating water from thesouthwest basin to flow across plaintiff's property. The trial court denied defendant's motion to staythe injunction pending appeal. Defendant filed a timely interlocutory appeal pursuant to SupremeCourt Rule 307(a)(1) (Official Reports Advance Sheet No. 5 (March 5, 2003), R. 307(a)(1), eff.January 1, 2003).

Defendant has moved to strike plaintiff's brief, and we have ordered the motion taken withthe case. Defendant claims that plaintiff's statement of facts is argumentative and makes assertionsthat are not supported by the record. Plaintiff's statement of facts is generally accurate and free ofargument. See 188 Ill. 2d R. 341(e)(6). The argument section of plaintiff's brief contains an adequatelegal discussion and is within the bounds of proper advocacy. Although the brief contains a fewstatements that are not supported by the record, the statements do not hinder our review. We havereviewed the record and will disregard any unsupported assertions. See Merrifield v. Illinois StatePolice Merit Board, 294 Ill. App. 3d 520, 527 (1997) (although brief contained some improperargument and inaccurate portrayals of evidence, striking brief was not necessary, and reviewing courtwould merely disregard portions of brief that did not comply with supreme court rules). Accordingly,we deny defendant's motion to strike plaintiff's brief.

A preliminary injunction is intended to preserve the status quo pending a decision on themerits of a case. Nickels v. Burnett, 343 Ill. App. 3d 654, 662 (2003). It is an extreme remedy thatshould be employed only when an emergency exists and serious harm would result if the injunctionis not issued. People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 177 (2002). A court maynot grant a preliminary injunction without a showing that: (1) the party seeking the preliminaryinjunction possesses a clear right or interest needing protection; (2) the party has no adequate remedyat law; (3) irreparable harm will result if the preliminary injunction is not granted; and (4) there is areasonable likelihood of success on the merits. People ex rel. White v. Travnick, 346 Ill. App. 3d1053, 1060 (2004). Also, the trial court must decide whether the balance of hardships to the partiessupports granting a preliminary injunction. Keefe-Shea Joint Venture v. City of Evanston, 332 Ill. App. 3d 163, 169 (2002).

A plaintiff seeking a preliminary injunction does not carry the same burden of proof that isrequired to prevail on the ultimate issue. Keefe-Shea, 332 Ill. App. 3d at 169. Instead, the plaintiffmust make a prima facie showing that there is a fair question about the existence of the claimed rightand that the circumstances lead to a reasonable belief that the plaintiff will be entitled to the reliefsought. Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1055 (1998). A reviewing court willoverturn a trial court's decision to grant a preliminary injunction only if the court abused its discretion. People ex rel. Klaeren, 202 Ill. 2d at 177.

Defendant argues that we should review the trial court's decision de novo because the factsare undisputed and therefore only the trial court's legal conclusion is at issue. See La Hood v. Central Illinois Construction, Inc., 335 Ill. App. 3d 363, 364 (2002). We disagree. This cause turnedheavily on factual considerations. Although there was no dispute that the development will increasethe amount of water flowing across plaintiff's property, the trial court had to consider conflictingexpert evidence about the effect of the development on plaintiff's property and balance the benefitsof granting a preliminary injunction against the hardships defendant might suffer as a result. Also,as we discuss further below, we do not believe that the trial court misapplied the law. Accordingly,we apply the abuse of discretion standard.

Initially, defendant argues that the Illinois Drainage Code (Code) (70 ILCS 605/1--1 et seq.(West 2002)) granted it the right to connect the field tile beneath the stilling basin to the agriculturaltile running underneath plaintiff's property. The core principle governing the drainage of surfacewater is that "[l]and may be drained in the general course of natural drainage by either open orcovered drains." 70 ILCS 605/2--1 (West 2002). Section 2--8 of the Code provides:

"When a ditch, covered drain or levee is privately constructed through or on a tract of landand the ownership of such tract is thereafter divided, such ditch, covered drain or levee shallthereupon be deemed a drain or levee for the mutual benefit of all the portions of the originaltract connected to, or protected by, such ditch, covered drain or levee." 70 ILCS 605/2--8(West 2002).

According to section 2--10, "[d]rains and levees deemed to be for the mutual benefit of the landsconnected or protected shall constitute a perpetual easement on such lands and shall not be filled,obstructed, breached or impaired in any way without the consent of the owners of all such lands." 70 ILCS 605/2--10 (West 2002).

There is no dispute that, when plaintiff purchased his property, the agricultural tile was a drainfor the mutual benefit of plaintiff's property and the Taus farm. Defendant has removed most of theagricultural tile on its property and constructed a retention pond that will drain in part throughplaintiff's tile. Having changed the character of the easement, defendant cannot now claim aneasement pursuant to the Code. An easement once definitely settled and located cannot be changedby either party without the consent of the other where the change results in a substitution of aservitude different from that which existed previously. Sullivan v. Bagby, 335 Ill. 192, 195-96(1929); Continental Illinois National Bank & Trust Co. of Chicago v. Village of Mundelein, 85 Ill.App. 3d 700, 706 (1980). Thus, the owner of the dominant estate may not materially alter thecharacter of the easement. Triplett v. Beuckman, 40 Ill. App. 3d 379, 382 (1976). Here, we haveno difficulty concluding that defendant has materially altered the character of the easement. Theagricultural tile was designed to carry surface water away from the Taus farm, and defendant hasturned it into a partial outlet for a storm water retention pond.

In rejecting defendant's contention based on the Code, we do not hold that defendant'sconnection to the agricultural tile is necessarily illegal. Instead, we simply hold that defendant doesnot have an easement under the Code. It is still necessary to consider defendant's actions under thecommon law governing the drainage of surface water.

The starting point of the analysis is the "civil rule," which is reflected in section 2--1 of theCode. Under that rule, the owner of the dominant or higher land has a natural easement over theservient or lower land to allow surface water to flow naturally off the dominant estate and onto theservient estate. Peck v. Herrington, 109 Ill. 611, 619 (1884); Coomer v. Chicago & North WesternTransportation Co., 91 Ill. App. 3d 17, 22 (1980). The owner of the servient estate is not obligatedto receive surface water in different quantities or at different times than would come to his landordinarily. Dovin v. Winfield Township, 164 Ill. App. 3d 326, 334 (1987), overruled on othergrounds, Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179 (1989).

The civil rule has been modified by the "good husbandry" exception, which permits the ownerof dominant agricultural land to increase or alter the flow of water upon a servient estate if this isrequired for proper husbandry of the dominant land. Dessen v. Jones, 194 Ill. App. 3d 869, 876(1990); see also Bossler v. Countryside Gardens, Inc., 44 Ill. App. 3d 423, 424 (1976) (rule thatowner of dominant estate may do nothing to increase burden of surface water drainage upon ownerof servient estate is subject to the good husbandry exception, which permits interference by dominantestate owner when incidental to the reasonable development of the dominant estate for agriculturalpurposes).

Although the good husbandry exception developed to promote agriculture, our supreme courthas stated that the general principle applies to urban and suburban settings:

"The question *** is whether the increased flow of surface waters from the land ofthe defendants to that of the plaintiff, regardless of whether it was caused by diversion fromanother watershed, the installation of septic tanks, the grading and paving of streets, or theconstruction of houses, basements and appurtenances, was beyond a range consistent withthe policy of reasonableness of use which led initially to the good-husbandry exception." Templeton v. Huss, 57 Ill. 2d 134, 141 (1974).

The owner of a dominant estate does not have an unlimited right to increase the rate or amount ofsurface-water runoff flowing onto the land of a servient estate. Callahan v. Rickey, 93 Ill. App. 3d916, 919 (1981).

Applying Templeton, this court has stated that the potential for economic loss resulting froman increase in the flow of water onto the servient estate should not be disregarded, as would happen if the focus were solely on the dominant estate. Likewise, the potential benefits resulting fromdeveloping real estate in a dominant position should not be ignored. Consequently, the benefit to thedominant estate should be balanced against the harm caused to the servient estate. Dovin, 164 Ill.App. 3d at 335.

Initially, we reject defendant's suggestion that, because its storm water management systemcomplied with the Yorkville ordinances and sound engineering practices, the increase in the amountof water flowing onto plaintiff's property is per se reasonable. This litigation involves state law,which defendant cannot bypass merely by obtaining the City's approval of the storm watermanagement system. See Van Meter, 207 Ill. 2d at 369 (applying common law governing drainageof surface water to local public entity); Salzman v. Sumner Township, 162 Ill. App. 3d 92, 94 (1987)(township must construct its roads subject to common-law drainage rules); see also Yorkville CityCode