Anderson v. Sutter

• Decision Date: 07 December 1983
• Docket Number: No. 82-1033,82-1033
• Citation: 119 Ill.App.3d 1070,75 Ill.Dec. 871,458 N.E.2d 39
• Parties: , 75 Ill.Dec. 871 A. Harold ANDERSON and William Hutson, Plaintiffs-Appellants, v. Edwin F. SUTTER, Gertrude E. Sutter, Village of Third Lake and Bryce W. Carus, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 39

458 N.E.2d 39

119 Ill.App.3d 1070, 75 Ill.Dec. 871

A. Harold ANDERSON and William Hutson, Plaintiffs-Appellants, v. Edwin F. SUTTER, Gertrude E. Sutter, Village of Third Lake and Bryce W. Carus, Defendants-Appellees.

No. 82-1033.

Appellate Court of Illinois,

Second District.

Dec. 7, 1983.

Donald H. Geiger, Waukegan, for plaintiffs-appellants.

Rosing, Magee & Applehans, Stephen G. Applehans, Charles W. Smith, Waukegan, for defendants-appellees.

REINHARD, Justice:

Plaintiffs, A. Harold Anderson and William Hutson, appeal from that portion of a December 2, 1982, order of the trial court which granted a motion to dismiss their complaint, which sought damages and injunctive relief, against defendant, the Village of Third Lake (village).

The issues we must determine on plaintiffs' appeal are: (1) whether the notice of injury provision of section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1981, ch. 85, par. 8-102) is applicable where injunctive relief is sought; (2) whether the notice of injury provision is applicable to the request for damages under the facts of the instant case; (3) whether the limitation period of section 8-101 and the notice of injury provision of section 8-102 of the Act had not run because the injury was alleged to be continuing or repeated; and (4) whether sufficient notice of injury was given to satisfy section 8-102 of the Act.

The village cross-appeals from a portion of the December 2, 1982, order which denied its motion to dismiss the complaint on the alternate basis of the village's alleged immunity under section 3-103(a) of the Act. (Ill.Rev.Stat.1981, ch. 85, par. 3-103(a).) While agreeing that the complaint was properly dismissed on its motion for plaintiffs' failure to give timely notice of injury, the village in its cross-appeal contends that the complaint also should have been dismissed under the immunity provision of section 3-103(a) of the Act.

Plaintiffs filed suit on May 13, 1982, against the village and certain individual defendants. In their complaint they alleged that plaintiff Anderson owned land that drained into "the Avon-Fremont Ditch through Third Lake to Mill Creek" and that plaintiff Hutson owned land "located on either side of the Avon-Fremont Ditch extension which drains through Third Lake and down Mill Creek." Plaintiffs alleged that the water level in the Avon-Fremont Ditch, Third Lake and Mill Creek had been controlled by a concrete dam with a spillway that had an elevation of 761.64 feet above sea level; that a new sheet pile dam had been constructed with a spillway elevation of 764.31 feet; that the old dam had not been removed; that the construction of the new sheet pile dam resulted in a water level in Third Lake of 764.31 feet or more when the radial gate in the dam was closed; that the village obtained a permit from the Illinois Department of Transportation (IDOT) to build the new dam and that in the application for this permit the village stated that the new dam would not "flood or damage adjoining property * * *; " that construction had been completed for "nearly two years"; that plaintiffs had made complaints as to the damage to their property by the excessively high level of the lake water because of the improper construction of the sheet pile dam; that IDOT had requested the village to reduce the spillway of the new dam to "763.4 feet MSL 1929 Adj;" and that the village had refused to reduce the spillway.

Plaintiffs alleged that as a result of the construction of the new dam the water is held back in Old Mill Creek. Third Lake and Avon-Fremont Drainage Ditch "causing great damage to plaintiffs property and its usage as owned and used by plaintiffs." Plaintiffs, therefore, sought an injunction ordering the village to remove the old dam and to "reduce the level of the sheet pile dam to maintain the water at its normal elevation of 762.53 feet MSL 1929 Adj. using a correct U.S.G.S. bench mark." They also sought to enjoin the village from "adding any boards to either the old or new dam or closing the gate on the new dam until the disposition of the law suit." Plaintiffs additionally sought $10,000 actual damages and $30,000 punitive damages. Exhibits were attached to the complaint which contained legal descriptions of plaintiffs' property and various documents relating to the permit to construct the dam and correspondence about the dam subsequent to its construction.

Defendants moved to dismiss plaintiffs' complaint claiming, inter alia, that the complaint sought monetary damages against the village without alleging that the notice requirements of section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill.Rev.Stat.1981, ch. 85, par. 8-102) had been met and that the village was immune from suit under section 3-103 of the Act because the dam had been approved by IDOT. The motion to dismiss also sought to dismiss the individual defendants from the suit.

The trial court entered an order on December 2, 1982, dismissing the individual defendants, refusing to dismiss the complaint against the village based on immunity, but granting the dismissal for failure to comply with the section 8-102 (Ill.Rev.Stat.1981, ch. 85, par. 8-102) notice requirements. The plaintiffs have not appealed from the dismissal of the individual defendants.

Initially, we note that in their appellate brief plaintiffs assert that they have the right to injunctive relief against the village under the facts alleged in the complaint. The propriety of mandatory injunctive relief against the village was not raised in the motion to dismiss nor referred to by the trial court in its order, nor has the village, as appellee, raised or addressed this argument in its brief in support of the judgment below. Generally, an issue not raised in the trial court cannot be raised for the first time on review. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303, 313, 335 N.E.2d 448.) Under the circumstances here, we will not consider an issue not raised by the pleadings and not ruled on in the judgment from which the appeal was taken.

Plaintiffs argue that the trial court erroneously dismissed their complaint because the trial court improperly applied the notice requirement of section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1981, ch. 85, par. 8-102) to the portion of plaintiffs' complaint which sought injunctive relief. Plaintiffs contend that the notice requirement of section 8-102 only applies to tort actions. They maintain that because their complaint sought injunctive relief, it was not a tort action and, therefore, that no notice was required.

Section 8-102 requires that "any person who is about to commence any civil action for damages" against a local public entity must provide notice to that entity within one year from the date of injury or the date the cause of action accrued. Section 8-103 provides that if this notice is not given, the person who was injured is forever barred from bringing suit.

No Illinois case appears to have directly addressed the question whether section 8-102, or the Local Governmental and Governmental Employees Tort Immunity Act generally, applies to injunction actions. In Kepper v. LaSalle-Peru Township High School District No. 120 (1972), 7 Ill.App.3d 138, 287 N.E.2d 180, the court applied the notice provision of the act to a suit in which a mandatory injunction was sought, along with other relief, but was not called upon to review whether the request for injunctive relief was not within the Act. In Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill.App.3d 962, 973, 69 Ill.Dec. 671, 447 N.E.2d 1358, the defendant village conceded that the Act did not provide immunity from equitable relief. However, neither case directly addressed whether the Act applied to a request for an injunction.

Several decisions have held the Act to be inapplicable to certain causes of actions. In Firestone v. Fritz (2nd Dist.1983), 119 Ill.App.3d 685, 75 Ill.Dec. 83, 456 N.E.2d 904, this court held the Act inapplicable where a violation of a constitutional right was alleged rather than a tort. This court also held the Act inapplicable to a suit for compensation for damages resulting from the lawful vacation of a road in Streeter v. County of Winnebago (1976), 44 Ill.App.3d 392, 2 Ill.Dec. 928, 357 N.E.2d 1371. We held there that the case had "no element of tort" since the vacation was within the county's powers. (44 Ill.App.3d 392, 395, 2 Ill.Dec. 928, 357 N.E.2d 1371.) In City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill.App.3d 359, 364, 300 N.E.2d 331, the court held that section 8-102 did not apply to a counterclaim asserted against a city where the city first brought suit. In Luker v. Nelson (N.D.Ill.1972), 341 F.Supp. 111, 118, the court held that section 8-102 did not apply to civil rights actions brought under 42 U.S.C. § 1983. In Stephens v. McBride (1983), 97 Ill.2d 515, 74 Ill.Dec. 24, 455 N.E.2d 54, the court held that the notice provisions of the act did not apply to an action for contribution against a local government. None of these cases is dispositive of the question whether the Act, particularly the notice provision, applies to a suit for injunction.

Generally, when construing a statute, the statutory language should be given its plain and ordinary meaning. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill.2d 208, 211-12, 66 Ill.Dec. 637, 443 N.E.2d 563; Mirabella v. Safeway Insurance Co. (1983), 114 Ill.App.3d 680, 683, 70 Ill.Dec. 384, 449 N.E.2d 258.) Section 2-101 of the Act provides, in part, that "[n]othing in this Act affects the right to obtain relief other than damages against a local public entity or public employee." (Ill.Rev.Stat.1981, ch. 85, par. 2-101.) Section 8-102 requires notice to be given by "any person who is about to commence any...