the factual issues involved in this case are quite simple water is oftentimes humans enjoy a path of least resistance unless artificially alter the water normally flows downhill the legislature in one nine hundred fifty six codified an act called the illinois drainage act and what that was designed to do was designed to resolve disputes normally amongst neighboring land owners normally farmers to relieve water from a higher elevation of land to lower elevation of the land to an even lower elevation of land to a natural or artificial drainage or waterway that's all roland good as long as it doesn't it's such after seventy i also yes six o five to dash five requires that the plaintiff prevail if any other outlet which the plaintiff has the right to use in other words he must release the water from his property which is accumulating and going through the neighboring property to an outlet i don't see where the act requires a specific discharge is there a different standard a different rule under the code for new construction as opposed to repairing and is this a new construction pacer's as repairing or maintenance fees this is repairing maintenance case of which the evidence showed that the drain tile had been in place i believe we had a ledge for approximately one hundred years if it's a meeting and if it is a maintenance and repair a case does there have to be evidence in the record that the grain each child from the higher ground or connected to the range style from a lower i believe you are correct there does have to be evidence i believe there is yes and i think we end of peter shoals property because if you notice from the appellate court's ruling the final property in the length was jane shoals property who chose to default not in an appearance or an answer in this case  preponderance of evidence the natural flow of water was from the christianson help and shoals property period that's the only question that was presented to him the evidence in order to prove that resided no engine or no tile expert i believe his sole evidence was at one time or another i saw the water flow to the east i did not see the water flow in accordance with what the plaintiffs witnesses are testifying to that testimony pardon me with that testimony that was the argument of the defendant there was not one witness but he called to show the water flowed to the east usurped and it disregarded the factual findings of judge marcel yet at the circuit court of the court at the circuit court level ruling is to be up held as you know on ross it is a misuse of discretion if he finds and he did by a preponderance of the evidence the natural flow of water was to the north east and he ruling should have been apel his ruling as is in the material in front of you september fifth two thousand and six states the plaintiffs have a stablished by preponderance of the evidence that the natural flow of water from the south of the north east this means that the water flows from the help and christiansen's property over and through the peter shoals property and the drain shoals property  clearly shown up by the testimony of roger christian son and guy christiansen see exhibit seven and nine he went even further in his ruling which again was very concise that he found richard ruprecht who had been an entire business i believe the testimony was in the evidence was found to be for forty years to be a quote tile expert at every stage of the trial court level it was asked and you can see in the record to mr scholtes do you have a witness a document an exhibit or some piece of evidence to refute sir and that basically or that is that is it into a nutshell around and i'm suggesting that the the teared system that we have is one in which i'm not enlightening i'm just regurgitating that the legislature sets the law and they did nine hundred fifty six presumably to resolve disputes of which were here the circuit court if there is a dispute to sightsee evidence he is the only person who actually would have standing to object to the discharge the statute doesn't even say discharge says what but that might be a matter of semantics i don't believe that was raised with that right but you also believe that if it if it was your main you would win that you would win because it went through peter's it went through peter's land and the three outlet points that could possibly be come out  east and the brother was flowing and not backing up so the assumption we thought circumstantial evidence would be that there was an outlet one of the three tiles which was on but i don't i don't think that issue was even one that was addressed at the helm of course i think the issue was what was the natural flow of the water facts of that case at all but case there's a clear trespass case where one landowner went on to another land owners property to hunt and kill game which was probably a more significant thing at the time there was no notice there was nothing of that nature given in this particular case the lawsuit was filed months before we want to honor the property of mr sh we had court orders to go on the property we had letters as is first outlined initially in justice hold rich's dissent requesting a cooperation agreement we finally did go through the entire trial and prove all of the elements under the act that were necessary to prove and what i'm suggesting very simply as justice thomas has said is very simply that the appellate court overstepped its bounds and overruled the circuit court and put them put some selves in place of the trier of fa understand you think that the only issue then forces whether or not the law of water mining was against the weight of the evidence or were right on that issue right on the flow is it incumbent on us or necessary for us to look at whether there should have been a determination of damages prior to the repair or is that an issue that comes up after would have to come up after home after your plans are you have an excavation of the foundation an issue only but it's going to be a disruption of your property to do the foundation there's going to be dirt all over the place are going to be righteous to be trucks et we have to replace a hundred year old great drain tile with new methods that we have now with trucks and the way they put it in an automation system so they actually your question yes we would have to wait until the conclusion of the tile being placed on behalf of the christiansen's and help and to determine if there was any damage to the shoals property by the same token the act also evidence came in this was all one piece of property at that one time years ago and sold off but the scholtz christiansen's a piece to the helpings a piece to the grant brothers to build i think sixteen lots on the east side of what were the property we're talking about so it would have to yes i would have to believe that since the property was all in one ownership it was for the mutual benefit of that party in and  presumably inherited by the subsequent landowners who purchased the property  i think that reading the opinion of the majority of the their district is that there was some rebel or quickly mr charles represent rome and he did a very fine job in fact he did an excellent job being processed but he didn't call witnesses to refute the witnesses testimony documents and exhibits that were shown to prove the natural flow of the water it seems to me in reading the majority's opinion the dissent alludes to it is not by justice hold rich that there was a leniency given to mr scholtes because he was pro se the leniency given to him by the majority defendant with any more or less a burden than they would if they were represented by counsel i'm asking you to find that the appellate court abused their anyone it's got that knows what it is you know before college thirteen or fourteen years old so that's from simple my daughter's right now but what i'm looking at right now is mystery gazi all said that they have a mission and everything outside i'm not quite sure but i'll just start right out what first of all when roger christen was on the stand roger stated he had to weigh in fifty eight years of his life and in the last hundred years that it's been draining and somewhere along the line it was fifty years it's been dreaming but the bottom line was is what i but back after roger roger when i cross examine roger roger stated yes the hundred acres was turn each actually roger after they start having her issues once they close the ditch along the east side of their property which borders op koster road they paddled a lot of drainage issues because the water would roger stated as far as his chain he said it was no changes and which we know also to put in what you call a c r p program they put it in and he stated that they had seating tiles and so forth and so on whatever just c p r and i did check what ob the department of agriculture all and they said that if everything roger was saying was true and that everything is true h anyhow but roger also stated that there was no other changes yes there was a building of the sixteen houses for the watts of the sixteen houses it's going to go in i think there's fourteen or fifteen houses actually the house that where scott has they went out the front because they felt that the manholes in front were too low they've been reason of manholes as they've been filling a yard full so now they've got more issues and in fact even after we came out of the all one hundred percent agricultural land as it was for the last hundred years as they speak we wouldn't be here today once they started the subdivision that's where the issue  engineer throughout the county he does a lot of the county engineering and i would say he's probably a really good engineer but he stated that he was on my property from what i understand they were on the property two times sa never did see him myself one time there on the property was january fourteenth of two thousand and six they had a court order to go out there and put a probe in the crown and that's all they were supposed to do is prone to and just randomly dig through and destroy my tile probably but every five hundred feet which i wasn't buried up to do nothing about i have a brother to stop by he took pictures what the sheriff cartier built the houses up and now don't want it hits doll subdivision it's running across my like it in fact the trial court find that the drainage naturally was to the north northeast from the believe they said it did and but they also stated did go to the east and adams and that's what you appealed to the appellate that's that finding as to whether flowed to the north northeast correct and then also they also when they said they were going to put big one it was the c forty three and also the petitioner's exhibit nine you guys all got a copy of this right here and if you look at the things that i've been put a little thing on here five eighty six showed it all came to the east across the front person which i honestly i stated in my brief guy person i'd only ever was on my property i don't know where he got his information from but he never was the one day when they were on the property to begin with a back hole  would be in my favor i did talk to the royal commissioner which is the highway authority his name is ken lampard and the ditch that were my face trials frame through it don't handle enough of my field my field don't even but he you know he's not doing much about it but as far as mystery razi old mr helping and their grief they state they want to come on a race road and i personally feel that's a good thing if they go on a race road which is t time of commencing the action which is i would understand it to be the action to construct the brain and paragraph to they're sure refers to at the time of commencing the action and then paragraph two days five which provides for all of the findings of  appellate courts that the trial court failed to find its as if on the trial of the case still i think referring to the case for new construction if it doesn't find certain things including an outlet or a discharge then possibility would that be because if there is of an existing drain field those findings were already made at the time that the drainage was initially put under the land or into the land and therefore the findings are no longer necessary specifically my question is is it necessary for the trial court in this case to have found that there was an outlet or discharge when it's to prepare an existing field trial i'll i would say they would need to several his for his life and his dad thought that was it here or is that they were the ones that put the drainage palm island as i showed in the maps which you guys got a copy o works but then if they try and don't quite work enough they'll just put in a new line but they're not going to work everything back up so if they would come through as mr gaza says and just completely destroy even in a mine where my tiles all tied in they were no longer t because he would just come in would have big rip the machine and rip through so basically i do not want my land to be an easement orderly when they have all their options and there are ones what their subdivision that has know that is not part of the record i think mr ghazi said that but i mean if you take a whole section of land which is six hundred forty acres you have ditches from around the whole land and usually you go to the shortest area and channel but now you know he's want to take all the way to the ferry solids west corner and green are all the way towards the northeast corner i don't think so you know i mean there's ditches last week when it was thought and you can see the so other than that that's really that i believe that all i got to say and i thank you guys and i just hope that you  just rebuttal or seem to be a few questions and justice thomas you would ask one which was kind of directed towards the the elevations of the land and how we determined it went from the christianson help and to the northeast over pete's property through the shoals property well the only evidence presented and it's on page nine of the opinion is that corrugated tile well he went down and found the clay tell it five different elevation points took a backhoe dug down and sure enough there was the tile going to the north east through help and help in christiansen and peach property we didn't stop there we asked guy christiansen's folks to go out and shoot ovations and he shot the loose and the elevation sure enough for five hundred eighty six feet  seventy seven inches five eighty five twelve i have eighty four on down to five eighty three seventy eight if you look at the record judgement or so i asked a very astute question that not being a tile guy but was astute he said at bat short of a drop over that distance would that be enough natural flow of water for an eight inch clay tile and then the corrugated tile i think was discussed as question it had to be for the mutual benefit of one piece of property if it was one at the time or if it was sold off well or if it to land on or see if it wasn't one high believe in the record it was one piece of property at one time years ago if it wasn't then the two landowners had to get together and agree that this title flowed from the property which is now help and soon christianson through pete's property and then through jane shoals property i think just as calmly you were concerned was was were discharged point it would have to be proven was it proven so on and so forth if if you look at the testimony of guy christians the guy said that it appears is certified engineer that the water comes out at main road near the corner of main and koster that's the most north east point we have in this was elevations that followed the topographical maps and the day is all showing that the water went in that north easterly fashion over pete's property i know pete doesn't like the invasion of the backhoe going on first property to put in some new drainage tile they help and scrappy don't either because for them to run the tile straight east as pete would suggest would be about twice the distance from here that wall it be it would be a lot cheaper but that's not the natural flow of water they can't do it that way they're utilizing the existing tile that was there for one contradicted there was for about one hundred years roger cushions some testified absent the tile back in the sixty's it was a seven inch rain within twenty four hour period which we almost quite a bit he went out there we look at different sites in the one of pete's concerns was that the damage was done by mr wept when he went in and dug up one of the tiles where there was damage at one of the five leagues there was damage what did though is not only take photographs of the damage he did come into court and admit the damage he repaired it with a new corrugated tile in the court found the deficiencies in the that open the sole issue with the quote fine by a preponderance of the evidence at the water flowed in accordance with the way that the plaintiffs help once a christiansen's presented their evidence the answer was yes the appellate court somehow said no i don't think that's within their province of doing that if we get into that we we've somewhat eradicated our system from again the legislature making laws circuit court judge hearing the evidence appellate court interpretation air and you folks determining if the appellate court stepped out of bounds