Brooks v. Village of Wilmette

• Decision Date: 14 December 1967
• Citation: 28 Ill.Dec. 934,72 Ill.App.3d 753,391 N.E.2d 133
• Parties: , 28 Ill.Dec. 934 Elizabeth B. BROOKS, Individually, Elizabeth B. Brooks, Agent as assignee of contractual rights of James L. Dunne and Co., an Illinois Corporation, Irene O. Brown, Individually, La Salle National Bank as trustee under Trust Agreement dated
• Court: United States Appellate Court of Illinois

Page 133

391 N.E.2d 133

72 Ill.App.3d 753, 28 Ill.Dec. 934

Elizabeth B. BROOKS, Individually, Elizabeth B. Brooks Agent as assignee of contractual rights of James L. Dunne and Co., an Illinois Corporation, Irene O. Brown Individually, La Salle National Bank as trustee under Trust Agreement dated December 14, 1967, known as Trust Number 37413, Robert B. Moore and Gertrude B. Moore as owners in joint tenancy, and Robert B. Moore, Agent, as assignee of contractual rights of F. J. Kerrigan Co., Inc., an Illinois Corporation, Plaintiffs-Appellants, v. VILLAGE OF WILMETTE, a Municipal Corporation, Defendant-Appellee.

No. 78-140.

Appellate Court of Illinois, First District, Third Division.

May 30, 1979.

William M. Doty, Jr., Harold W. Klingner, Chicago, for plaintiffs-appellants.

Robert J. Mangler, Wilmette, for defendant-appellee.

McNAMARA, Justice:

Plaintiffs brought this action against the Village of Wilmette, a municipal corporation, to recover damages for breach of contract and for tortious acts arising out of Wilmette's alleged failure to repair broken water mains. The trial court granted Wilmette's motion to dismiss the complaint, and plaintiffs appeal.

Plaintiffs, Elizabeth Brooks and Irene Brown, were the beneficial owners of a parcel of real estate located at 625 Eleventh Street in Wilmette. (These premises are located at the corner of Central Avenue and Eleventh Street.) Plaintiffs, Robert and Gertrude Moore, were the owners of a parcel of real estate located at 1700 Central Avenue in Wilmette.

The complaint consisted of two counts, one in contract and one in tort. The complaint recited in Count I that plaintiffs as owners of real estate had utilized and paid for water services furnished by Wilmette; that Wilmette by ordinance was responsible for the repair of all water service pipe from the main to their premises; and that in 1964 Wilmette amended the ordinance to place responsibility for repair or replacement of the service pipe from the main to the curb shut-off upon the owners of the property. The complaint further charged that the enactment of the 1964 ordinance was arbitrary and unreasonable, and caused the establishment of non-uniform and unreasonable water rates for plaintiffs; and that the passage of the ordinance constituted a breach of Wilmette's contract with plaintiffs. The complaint also alleged that the Brooks plaintiffs became aware of the breach of contract on July 30, 1975, when a break occurred in the service pipe under Central Avenue leading to the curb shut-off of the Brooks property; that Wilmette, after discovering the location of the break, discontinued work and shut off service to the Brooks premises; that the plaintiff owners of the Brooks premises were compelled to hire a company to make the repairs at a cost of $6,582.48. The complaint further charged that on March 3, 1976, a break occurred in the service pipe under Central Avenue leading to the Moores' property; that Wilmette refused to repair the break; and that the Moores were compelled to have the break repaired at a cost of $632.26.

In Count II, plaintiffs alleged that the enactment of the 1964 ordinance constituted a breach of ordinary care; that Wilmette committed a tortious act against plaintiffs when the breaks in the service pipe occurred. Plaintiffs further charged that Wilmette ratified the tortious act in 1976 by amending the ordinance in question and again placing responsibility for such repair on Wilmette rather than on property owners. Plaintiffs in each count sought damages in the amounts of the costs of repairs.

Wilmette filed a motion to dismiss the complaint. The motion to dismiss asserted that the complaint contained no allegation that the ordinances were invalid or unconstitutional, and that there was no allegation that Wilmette or its agents did any act in violation of the ordinances. The motion also recited that the complaint requested the court to construe certain contractual rights, and that consequently, the suit was for declaratory judgment or should be filed as a chancery matter.

After hearing argument, the trial court found that the ordinances were lawful and valid and dismissed the complaint without prejudice. At the time of entry of the order of dismissal, the trial court suggested that plaintiffs might have a remedy in a court of equity.

A motion to dismiss admits such allegations as are well-pleaded together with all reasonable inferences which could be drawn from the facts. (Barliant v. Follett Corp. (1978), 74 Ill.2d 226, 23 Ill.Dec. 522, 384 N.E.2d 316; Hubbard v. Aetna Ins. Co. (1976), 37 Ill.App.3d 666, 347 N.E.2d 396.) Upon review, a court must determine whether the allegations of the complaint when interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted. (Zagar v. Gomberg (1978), 66 Ill.App.3d 611, 384 N.E.2d 426; J. J. Harrington v. Timmerman (1977), 50 Ill.App.3d 404, 8 Ill.Dec. 403, 365 N.E.2d 721.) A complaint will not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 20 Ill.Dec. 581, 380 N.E.2d 790.

The legal relationship between the municipality engaged in the business of furnishing water to its inhabitants and a water consumer is essentially one of contract. (People ex rel. Brockamp v. Schlitz Brewing Co. (1913), 261 Ill. 22, 103 N.E. 555; Rosborough v. City of Moline (1961),30 Ill.App.2d 167, 174 N.E.2d 16.) The consumer's obligation to pay for the services and for use of the water furnished by a municipality and the obligation of the municipality to render adequate and reasonable water service rest upon the contract made between the user and the municipality. (Town of Cicero v. Township High School (1939), 299 Ill.App. 237, 20 N.E.2d 114; Stromick v. North Fayette County Municipal Auth. (1977), 33 Pa.Cmwlth. 66, 380 A.2d 954; Yezioro v. North Fayette County Municipal Auth. (1960), 193 Pa.Super. 271, 164 A.2d 129.) The ordinances of the municipality regulating the supply of water to citizens are binding on both the municipality and the consumer. (Fairbank v. City of Chgo. (1910), 153 Ill.App. 140.) No...