one years. In this case the contingency specifically and definitely mentioned in the will was the death of the devisee (then a child) leaving no child or descendants of such, and by the words of the will must have referred to a later date than the time when she would become twenty-one years of age, as she could not have descendants of a child at that age. This provision was at variance with the policy of the law as well as an intention of the testator which would otherwise be presumed. The conclusion that the executory devise took effect on the death of Bertha E. Beaty at twenty-six years of age without leaving her surviving a child or descendant was correct.

Al

By the decree Clarence J. Beaty was denied a homestead, which was formerly a mere exemption but is now an estate. (Gray v. Schofield, 175 Ill. 36; Hertz v. Buchmann, 177 id. 553; Roberson v. Tippie, 209 id. 38.) though an estate, the declared purpose of the Homestead. act is to exempt it from attachment, judgment, levy or execution, sale for the payment of the householder's debts or other purposes, and from the laws of conveyance, descent and devise, except as therein provided. The homestead estate is measured and defined by the value of the interest and title which the householder actually has in the premises, whether a fee or by lease or otherwise. The estate of homestead ends with the determination of the householder's estate, whatever it may be, and as the estate of Bertha `· E. Beaty came to an end at her death the decree as to the homestead was correct.

A cross-error has been assigned on the allowance of dower to Clarence J. Beaty. Bertha E. Beaty having been in her lifetime seized of an estate of inheritance, although it was determinable upon the happening of a specified contingency, her surviving husband was entitled to dower. Aloe v. Lowe, 278 Ill. 233.

The decree provided that in assigning dower Clarence J. Beaty should have the dwelling house, if he so desired.

There is a provision of that kind in section 37 of the Dower act, but it is urged that the section applies only to cases where one entitled to dower has a homestead. The section does not authorize the allotment of the dwelling house in the assignment of dower where the homestead right is owned by a third person and not by the surviving husband or wife, (Best v. Jenks, 123 Ill. 447,) but we see no reason why dower may not be assigned including the dwelling house, where there is no homestead right, in case one entitled to dower shall so desire and the commissioners shall be able to make such assignment without injustice to anyone. That question and the question of costs will arise hereafter on the report of the commissioners and in the final decree.

The decree is affirmed.

Decree affirmed.

(No. 13226.-Judgment affirmed.)

BARBARA KUHNE, Appellant, vs. THE SANITARY DISTRICT OF CHICAGO, Appellee.

Opinion filed October 23, 1920.

I. SANITARY DISTRICTS-when a declaration for damages from overflow does not state cause of action. The Sanitary District act, under which the Sanitary District of Chicago was organized, requires said district to maintain a constant flow of not less than 20,000 cubic feet of water per minute for 100,000 population, and a declaration for damages from overflow which merely alleges a willful violation of the statute by the district, in that it has caused a flow in excess of said amount, does not state a cause of action.

2. SAME-flow into Illinois river from Sanitary District of Chicago may be increased from year to year. The act for the organization of the Sanitary District of Chicago authorizes an increase in the flowage from the district into the Illinois river, and the requirement that such increase shall be permanent and the flow constant does not mean that the flowage cannot be increased from year to year.

3. SAME what necessary to a cause of action against Sanitary District of Chicago for damages from overflow. Under the act for

the organization of the Sanitary District of Chicago, to maintain a cause of action against the district for damages from the overflowing of the Illinois river it is necessary to show that the acts of the defendant within the five years prior to the commencement of the suit have created a condition different from that existing prior to the five-year period, and that as a result of such condition damages have accrued to the plaintiff.

4. SAME when violation of Federal laws does not give private right to damages against the Sanitary District of Chicago. In an action against the Sanitary District of Chicago for damages from the overflowing of the Illinois river, the question whether or not the flowage into the river is in excess of the amount permitted by the Federal government is not material and cannot be made the basis of a count in the declaration, as the right to damages must be due to a violation of the duties imposed upon the district by the common law and the statute.

STONE, J., dissenting.

APPEAL from the First Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. OSCAR E. HEARD, Judge, presiding.

Warren Pease, (Charles P. MOLTHROP, of counsel,) for appellant.

C. ARCH WILLIAMS, and WALTER E. BEEBE, (WILLIAM E. HELANDER, of counsel,) for appellee.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

This appeal is prosecuted to review a judgment of the Appellate Court for the First District affirming the judgment of the circuit court of Cook county sustaining demurrers to plaintiff's amended second and third counts of a declaration filed May 21, 1915, in her suit for damages for injuries to crops, timber and pasturage upon certain lands owned by her and lying along the Illinois river, in Putnam county. The cause was formerly before this court in Kuhne v. Sanitary District, 285 Ill. 129, and was transferred to

the Appellate Court on jurisdictional grounds. The cause is here again on a certificate of importance from that court.

The first question presented is whether or not the amended second and third counts state a cause of action against the defendant. The amended second count alleges the ownership by plaintiff of certain timber land, pasture land and farm land lying adjacent to and near the Illinois river; that the defendant, during the five years immediately prior to the beginning of this suit, caused water to flow through its canal from Lake Michigan through intermediate streams into the Illinois river above the plaintiff's lands; that defendant possessed certain controlling works whereby it could control the flowage of water through its canal; that “said defendant is a corporation organized under and pursuant to an act of the legislature of the State of Illinois and known as 'An act to create sanitary districts and to remove obstructions in the Desplaines and Illinois rivers,' approved May 29, 1889, and in force from and after July 1, 1889; that by the terms of said act the defendant was authorized to flow waters through said canal and into the Illinois river aforesaid, the amount of said flowage to be based upon the population of the district and to be a steady, uniform flowage based upon said population and increasing only as said population increased, and that in exercising and enjoying its rights under the said statute the defendant was required to observe the conditions, obligations and stipulations of said statute and was required so to keep and maintain a steady, uniform flowage, the amount of which was to be so based upon said population and increasing only as said population increased, but, contrary to its legal duty in that behalf and in violation of such statute, the said defendant did not maintain a steady, uniform flow of water through said canal during the period of five years aforesaid, based upon said population, but at times greatly increased said flow beyond the amount authorized by said statute and without regard to

said population of said district, and it willfully refused to base said flowage upon said population of said district, contrary to the statute in that case made and provided, and thereby and by reason thereof, and because of said flowage in violation of said statute during the five-year period aforesaid, great volumes of water at times were carried through said canal and cast into the said Illinois river, causing said Illinois river at such times of such increase of flowage to overflow its banks, so that said Illinois river at the times aforesaid has overflowed its banks at or near the lands of plaintiff, so that the said waters of said Illinois river have at such times overflowed onto, across and upon and intermittently and temporarily soaked and permeated said lands for a portion of each of the said five years." The plaintiff then alleges damages to her trees, pasturage and crops caused by said use of said canal, and sets forth that the liability of said defendant for said act of trespass was further imposed by reason of section 19 of the aforesaid statute, wherein it is provided: "Every sanitary district shall be liable for all damage to real estate within or without such district which shall be overflowed or otherwise damaged by reason of the construction, enlargement or use of any channel, ditch, drain, outlet, or other improvement, under the provisions of this act."

Section 20 of the Sanitary District act (Hurd's Stat. 1917, p. 422,) provides that "any channel or outlet constructed under the provisions of this act which shall cause the discharge of sewage into or through any river or stream of water beyond or without the limits of the district constructing the same shall be of sufficient size and capacity to produce a continuous flow of water of at least 200 cubic feet per minute for each 1000 of the population of the district drained thereby, and the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive or injurious to the health of any of the people of this State; * and said dis