Firestone v. Fritz, 83-35

• Court: United States Appellate Court of Illinois
• Citation: 456 N.E.2d 904,75 Ill.Dec. 83,119 Ill.App.3d 685
• Docket Number: No. 83-35,83-35
• Parties: , 75 Ill.Dec. 83 Nathan U. FIRESTONE and Mildred Firestone, Plaintiffs-Appellants, v. Frank J. FRITZ, Helen C. Fritz, Daniel Westergard and the City of Highland Park, A Municipal Corporation, Defendants-Appellees.
• Decision Date: 15 November 1983

Page 904

456 N.E.2d 904 119 Ill.App.3d 685, 75 Ill.Dec. 83 Nathan U. FIRESTONE and Mildred Firestone, Plaintiffs-Appellants,
v.
Frank J. FRITZ, Helen C. Fritz, Daniel Westergard and the
City of Highland Park, A Municipal Corporation,
Defendants-Appellees. No. 83-35. Appellate Court of Illinois,
Second District. Nov. 15, 1983.

[119 Ill.App.3d 686]

Page 906

[75 Ill.Dec. 85] Wallace B. Dunn, Paul P. Diambri, Highwood, for plaintiffs-appellants.

Condon, Cook & Roche, Francis J. Leyhane, III, Chicago, Diver, Bollman, Grach, Quade & Lessman, Conzelman, Schultz, Snarski & Mullen, Waukegan, for defendants-appellees.

SEIDENFELD, Presiding Justice:

The plaintiffs, Nathan U. Firestone and Mildred Firestone, appeal from a judgment which dismissed their complaint which sought damages because of water overflow from the adjoining property of defendant Frank J. Fritz. They appeal also from a judgment which dismissed their suit against the city of Highland Park and its agents for issuing a building permit for a structure which allegedly contributed to the injury.

I

The complaint against the adjoining property owners alleged, in substance, that Fritz had erected a corregated retaining wall and had filled ground approximately 20 years earlier; that he had filled and raised the Fritz property 14 to 20 inches above its natural level; that this wall altered the flow of surface water from the Fritz to the Firestone property, causing the water to flow with great force through a drainage hole in the northeasterly portion of the boundary line; that Fritz removed the wall in September 1981, but replaced it with a new retaining wall and fence, and further filled the adjoining land, altering [119 Ill.App.3d 687] the direction of the water flow over the northeasterly corner of plaintiffs' land; that the acts had prevented natural drainage of surface water and had directed it in undue and unnatural quantities upon plaintiffs' property, resulting in destruction of the plaintiffs' garage.

By a motion brought pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-619), Fritz alleged that plaintiffs' legal cause of action was time barred under the relevant statute of limitations (Ill.Rev.Stat.1981, ch. 110, par. 13-205), and its equitable action for injunction under the doctrine of laches. The trial court dismissed count I of the complaint, finding that both the five year statute of limitations and the doctrine of laches barred the suit. Thereafter plaintiffs moved to correct and amend the complaint and requested the court to reconsider its previous order. The amendment as to count I related solely to a scrivener's error in the date when the new retaining wall was erected. The court noted that it had been advised of the correct date prior to its entry of its dismissal order and that these corrections would not alter its decision. The plaintiffs appeal from the judgment order of December 21, 1982, and from the denial of the subsequent motion on January 6, 1983.

If the owner of dominant property changes the natural course of water within the limits of his own land he must see that the water passes from his land upon the land of his neighbor at the precise place where it would naturally do so. (Templeton v. Huss (1974), 57 Ill.2d 134, 140, 311 N.E.2d 141.) Interference with natural drainage is limited to that which is incidental to the reasonable development of the dominant estate. (See Templeton v. Huss, (1974), 57 Ill.2d 134, 141, 311 N.E.2d 141. See also Starcevich v. City of Farmington (1982), 110 Ill.App.3d 1074, 1080, 66 Ill.Dec. 811, 443 N.E.2d 737.) A plaintiff must bring a cause of action to recover damages for an injury done to real property within five years "after

Page 907

[75 Ill.Dec. 86] the cause of action accrued." Ill.Rev.Stat.1981, ch. 110, par. 13-205.

The underlying questions are whether the plaintiffs' cause of action accrued upon the construction of the retaining wall more than 20 years before this action was brought, whether separate causes of action accrue and start new periods of limitation at each successive injury by overflow, or whether the plaintiffs' cause of action accrued when the new retaining wall was built. See Annot., 5 A.L.R.2d 302 (1949).

Plaintiffs argue that they are entitled to recover for the damage done to their property by "each rainfall" which has resulted in an unnatural discharge of water onto their property, occurring within the five years prior to the commencement of their action.

Whether, in Illinois, separate causes of action accrue at each [119 Ill.App.3d 688] successive injury by an unnatural overflow requires a further analysis of the cause of the overflow. When a structure...