(Cooke, J.)..... 128 (Farmer, C. J.).. 108 (Dunn, J.)..... 461 Sanitary District of Chicago v. Baumbach. J.).... 207 117 372 540 622 263 569 57 Sullivant Township ads. People ex rel. (Cartwright, J.).... 141 II 532 Toledo, St. L. & West. R. R. ads. People ex rel. (Dunn, J.).. 472 Waterlohn ads. Rathje. (Farmer, C. J.).. 220 390 547 640 Western Union Tel. Co. v. Louis. & Nash. R. R. (Craig, J.) 399 Wheeler v. Sanitary District of Chicago. (Dunn, J.)....... 461 Wiegman v. Kusel. (Carter, J.)... Williams v. Williams. (Cooke, J.) Wilson v. Kruse. (Carter, J.).... Winkelman ads. Village of Des Plaines. (Dunn, J.)....... Wood ads. South Park Comrs. (Cooke, J.)........ 520 547 552 298 ... 149 263 CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ILLINOIS. JOHN B. SUTTON, Defendant in Error, vs. THE FINDLAY CEMETERY ASSOCIATION, Plaintiff in Error. Opinion filed October 27, 1915–Rehearing denied Dec. 9, 1915. 1. CEMETERIES—when under-drainage of land to be used as a cemetery will be enjoined. The under-drainage of land, proposed to be used as a cemetery, into a branch used by the owner of the adjoining farm as a watering place for stock, will be enjoined at the suit of such owner without any previous judgment at law declaring such under-drainage to be a nuisance, where the evidence establishes, beyond substantial doubt, that the under-drainage will contaminate and pollute the branch so as to render it unfit for the complainant's uses thereof. 2. SAME―when use of land for cemetery purposes will not be enjoined. The use of land for cemetery purposes will not be enjoined at the suit of the owner of an adjoining farm, on the theory that the proposed use, without under-drainage of the land, will be a nuisance, where the nature of the case, including the character and elevation of the land, is such as to preclude any satisfactory showing that a nuisance will inevitably result from such use. 3. SAME-use of land for cemetery will not be enjoined because offensive to esthetic sense of adjoining owner. A cemetery is not a nuisance per se, and the use of land for cemetery purposes can not be enjoined at the suit of the owner of adjoining land merely because it is offensive to his esthetic sense. WRIT OF ERROR to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Shelby county; the Hon. ALBERT M. ROSE, Judge, presiding. WHITAKER, WARD & PUGH, and E. A. RICHARDSON, for plaintiff in error. F. R. Dove, and A. L. YANTIS, for defendant in error. Mr. CHIEF JUSTICE FARMER delivered the opinion of the court: Defendant in error, John B. Sutton, complainant below, filed his bill in the circuit court of Shelby county on October 16, 1913, against plaintiff in error, the Findlay Cemetery Association, defendant below, alleging that he was the owner of 194 acres of land described, and that the defendant corporation was the owner of ten acres of land adjoining complainant's land on the west. The bill alleges the defendant association has caused said ten-acre tract to be surveyed and platted for use as a public cemetery, and that the city of Findlay, having about 1000 inhabitants, is within forty rods of the west line of defendant's premises; that near the west line of defendant's land is the head or source of the west fork of a natural water-course known as the Eversman branch, and that said branch flows in an easterly direction across defendant's land and upon and across complainant's land, eventually emptying into the Okaw river; that the natural drainage of the land both of the complainant and defendant is toward said branch; that defendant's premises are low and flat; that said branch is a running stream eight or nine months each year, during which time it contains water sufficient in quantity and purity for the domestic stock of complainant; that for more than ten years complainant has lived on and occupied his premises, a considerable portion of which, together with other land, has been tiled into said branch; that a portion of complainant's land has been used for pasture and the branch used for watering his stock. The bill alleges defendant has begun to tile and under-drain its premises intended to be used as a burial ground, into said branch, and that the proposed use of said premises will cause the discharge from the tile drain to carry contamination, causing the water discharged to be unhealthy and unfit for drinking purposes for domestic animals and the lands of complainant through which the branch runs thereby rendered unfit for dairy purposes and stock raising, and also be the cause of noxious odors spreading over complainant's farm and about his residence, rendering the same uncomfortable and unhealthful and causing irreparable damage to complainant's premises, the branch thereby becoming a nuisance. The bill alleges a temporary injunction should issue restraining defendant from under-draining its premises into said branch, thereby contaminating the waters thereof, and that upon hearing the injunction should be made perpetual. On December 8, 1913, the bill was amended, the amendment alleging the premises of defendant were unsuited for cemetery purposes, and that during several months of each year graves would fill at least one-half full of water while the same were being dug; that under-drainage is necessary to render the premises suitable for burial purposes; that such drainage, after the interment of human bodies, would contain bacteria and poisonous exudations from such bodies, which would be carried upon complainant's premises by said water-course; also that bodies buried on the premises of defendant would become so liquefied as to be incorporated in the soil, and that water percolating through the soil would take up the same and become filthy, poisonous and contaminated and pass onto and upon the land of complainant and into said water-course, and thereby cause the, stock and land of complainant to greatly depreciate in value. The amended bill prays the defendant, its agents, |