C-B Realty and Trading Corp. v. Chicago and North Western Ry. Co., C-B

• Citation: 682 N.E.2d 1136,289 Ill.App.3d 892,225 Ill.Dec. 59
• Decision Date: 25 July 1975
• Docket Number: C-B
• Court: United States Appellate Court of Illinois
• Parties: , 225 Ill.Dec. 59 REALTY AND TRADING CORP., a corp.; Harris Trust & Savings Bank, a corp. as trustee under trust agreement dated

Page 1136

682 N.E.2d 1136

289 Ill.App.3d 892, 225 Ill.Dec. 59

C-B REALTY AND TRADING CORP., a corp.; Harris Trust &amp Savings Bank, a corp. as trustee under trust agreement dated July 25, 1975; Julius Braun, Morris Braun, joint venturers under the style of C-B Realty Joint Venture, Plaintiffs-Appellants, v. CHICAGO AND NORTH WESTERN RAILWAY CO., a corp., and Chicago and North Western Transportation, a corp. Defendants-Appellees.

No. 1-96-1344.

Appellate Court of Illinois,

First District, Fourth Division.

June 26, 1997.

French, Kezelis & Kominiarek, P.C., Chicago (Algimantas Kezelis, Michael R. Webber, Julie A. Neidhardt, of counsel), for plaintiffs-appellants.

Thomas W. Cushing, George H. Brant, Chicago and North Western Transportation Co., Chicago, for defendants-appellees.

Presiding Justice WOLFSON delivered the opinion of the court:

This case possesses a Dickensian quality. It concerns a contract entered into in 1908 and a lawsuit filed in 1974. Unfortunately, this decision probably will not put an end to the dispute.

We are called on to decide what the parties to the contract meant when they agreed to a "water-tight" floor for a railroad bridge (they meant water-tight) and we must decide a dispute over who is to pay real estate taxes for the land under the bridge (the railroad does).

FACTS

The plaintiffs in this case are C-B Realty and Trading Corporation, Harris Trust & Savings Bank, as trustee under trust agreement dated July 25, 1975, Julius Braun, Morris Braun, Eve Braun, joint venturers under the style of C-B Realty Joint Venture (collectively C-B Realty). The defendants are Chicago & North Western Railway Company and Chicago and North Western Transportation (collectively C & NW).

We issued an opinion concerning this case in C-B Realty & Trading Corp. v. Chicago & North Western Railway Co., 198 Ill.App.3d 926, 145 Ill.Dec. 16, 556 N.E.2d 634 (1990). We found and now restate the following facts:

"In 1974, plaintiffs * * * sued defendants * * * for breach of two covenants in a 1908 contract pertaining to the payment of certain taxes and the maintenance of a railroad bridge.

In 1980, the trial court entered partial summary judgment in favor of plaintiffs by ruling that the two covenants ran with the land, and that plaintiffs were entitled to enjoy the benefits conferred by the covenants.

In 1988, following a trial without a jury, concerning only damages and not liability, the court awarded plaintiffs $541,422.92, the full amount sought.

* * * Defendant operates an elevated commuter service to a passenger depot in Chicago. Just north of the passenger station is a railroad bridge which passes over a portion of a former railroad freight warehouse. The warehouse extends in a semicircular manner eastward under the bridge, and then curves southward.

In 1908, defendant's predecessor in interest entered into a contract with the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, relating to the construction of that railroad bridge, and the transfer of rights in certain property in Chicago.

In 1959, plaintiffs acquired title to the land upon which the freight warehouse rests, along with some adjoining property, as the successor to the interests of the Pittsburgh Company.

On September 20, 1974, plaintiffs filed this suit. Count I was withdrawn. Count II sought a judgment declaring that defendant was obligated to pay three-fourths of plaintiffs' taxes. The 1908 contract stated in paragraph 9 that defendant would pay three-fourths of taxes levied on the land now owned by plaintiffs.

'9. The North-Western Company [now defendant] will pay all taxes and assessments which may be levied against said overhead bridge or structure, and will also pay three-fourths of all taxes and assessments Count III of the complaint alleged that defendant had failed to maintain a water-tight floor on its bridge, and sought compensation for damage to the freight warehouse. The 1908 contract stated in paragraph 3 that defendant would maintain the bridge with a water-tight floor over the freight house.

[225 Ill.Dec. 62] which may be levied against the tract of land owned by the Pittsburgh Company [now plaintiff], across which the said overhead structure is located.'

'3. The North-Western Company [now defendant] will construct, maintain and renew at all times the said bridge or structure so that the same shall have a water-tight floor construction over the entire area of the tracks and property of the Pittsburgh Company, and the North-Western Company at its own sole cost and expense, will reconstruct and rearrange the freight house of the Pittsburgh Company [now plaintiff] in accordance with said Exhibit A and under the direction of Chief Engineer of the Pittsburgh Company.'

Cross-motions for summary judgment were filed on the issue of whether paragraphs 3 and 9 were covenants running with the land. On December 19, 1980, Judge Murray entered an order in favor of plaintiffs, finding paragraphs 3 and 9 created covenants running with the land. The judge explained that the two paragraphs involved the enjoyment of the land, and such benefits and obligations passed with the ownership. On January 14, 1981, the judge modified the December 19 order by finding it was not final and appealable because other issues had yet to be decided.

On October 28, 1985, trial commenced before Judge Mackoff. The court limited the issues to plaintiffs' damages after finding that the December 19, 1980 entry of partial summary judgment determined all issues of liability. Following trial, by orders dated April 15, and July 6, 1988, Judge Mackoff entered judgment awarding plaintiffs the sum of $541,422.92." C-B Realty & Trading Corp. v. Chicago & North Western Ry. Co., 198 Ill.App.3d 926, 928-30, 145 Ill.Dec. 16, 556 N.E.2d 634 (1990). [End of 1990 opinion.]

We agreed with Judge Murray's ruling, but, for reasons that no longer matter, this court reversed the judgment entered in the first trial and ordered a new trial.

At the new trial, C-B Realty alleged, among other things, the same causes of action described in counts II and III of the 1974 complaint. At trial, C-B Realty asked $972,052 for property damage and $410,829.66 for back real estate taxes. C-B Realty sought punitive damages of $1,355,000.

The trial court found that C-B Realty's claim that C & NW had a duty to pay certain taxes under the 1908 contract was untimely filed. The trial court awarded C-B Realty $36,351 for the water damage to its building and for lost rent. The trial court did not award punitive damages. C-B Realty appeals. We reverse and remand in part and affirm in part.

OPINION

1. Real estate taxes

The 1908 contract contained the following provision:

"9. [The defendant] will pay all taxes and assessments which may be levied against said overhead bridge or structure, and will also pay three-fourths of all taxes and assessments which may be levied against the tract of land owned by [the plaintiff], across which the said overhead structure is located."

C-B Realty contended C & NW failed to honor this provision of the contract. C & NW filed a motion for summary judgment on this count, alleging C-B Realty's claim was untimely.

C-B Realty bought the property in 1959. It had leased it since 1939. The parties' dispute over C & NW's responsibility for 3/4 of the property taxes levied on the building arose in 1961.

C-B Realty first filed this lawsuit in September 1974. C & NW argued that its motion for summary judgment should be granted because C-B Realty did not file its lawsuit within 10 years after the dispute first arose. Without stating its reasons, the trial court granted C & NW's motion for summary judgment.

C-B Realty contends the trial court should not have granted C & NW's motion for summary judgment. It says that its claim was timely.

C-B Realty contends that the 20-year limitation that applies to the recovery of land should apply in this case. 735 ILCS 5/13-101 (West 1992). C-B Realty did not bring an action to recover land or to seek the right to enter onto land. It sought a declaratory judgment defining the terms of the 1908 contract. In its appellate brief, C-B Realty cites no case law suggesting that section 13-101 should apply in this case. This section does not apply.

This is not an action concerning the recovery of land. It concerns the interpretation of a contract. The statute of limitations in this case is 10 years. 735 ILCS 5/13-206 (West 1992).

In this case, the statute of limitations bars part of C-B Realty's claim. Both sides agree the tax dispute first arose in 1961. C-B Realty did not file suit until September 1974, 13 years later. C-B Realty cannot collect taxes that came due before September 1964.

C-B Realty argues that even if the statute of limitations had expired for the first tax years, it should be allowed to collect taxes that became due after 1964. It contends that C & NW's duty to pay taxes is similar to the duty to make installment payments. It claims that a new cause of action, with its own statute of limitations, arises every time a party fails to make an installment payment.

Obligations payable in installments run separate statutes of limitation against each installment at the time it becomes due. Luminall Paints, Inc. v. La Salle National Bank, 220 Ill.App.3d 796, 802, 163 Ill.Dec. 240, 581 N.E.2d 191 (1991). See also Light v. Light, 12 Ill.2d 502, 506, 147 N.E.2d 34 (1957); In re Marriage of Kramer, 253 Ill.App.3d 923, 928, 192 Ill.Dec. 653, 625 N.E.2d 808 (1993); Thread & Gage, Co. v. Kucinski, 116 Ill.App.3d 178, 184, 71 Ill.Dec. 925, 451 N.E.2d 1292 (1983). "[B]ecause each breach of a continuous duty has its own accrual date, a plaintiff may sue on any breach which occurred within the limitation's period, even if earlier breaches occurred outside the limitation period. [Citations.]" Hi-Lite Products Co. v. American Home Products Corp., 11 F.3d 1402, 1409 (7 Cir.1993).

C-B Realty could not know what damages...