Rosenthal v. City of Crystal Lake

• Decision Date: 29 June 1988
• Docket Number: No. 2-87-1026,2-87-1026
• Citation: 121 Ill.Dec. 869,171 Ill.App.3d 428,525 N.E.2d 1176
• Parties: , 121 Ill.Dec. 869 Robert P. ROSENTHAL, Plaintiff-Appellee and Cross Appellant, v. The CITY OF CRYSTAL LAKE, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 1176

525 N.E.2d 1176

171 Ill.App.3d 428, 121 Ill.Dec. 869

Robert P. ROSENTHAL, Plaintiff-Appellee and Cross Appellant, v. The CITY OF CRYSTAL LAKE, Defendant-Appellant and Cross-Appellee.

No. 2-87-1026.

Appellate Court of Illinois Second District.

June 29, 1988.

Corey P. O'Dell (argued), Kurnik, Cipolla, Stephenson, Barasha & O'Dell, Arlington Heights, for City of Crystal Lake.

Andrew T. Freund (argued), Zukowski, Rogers & Flood, Crystal Lake, for Robert P. Rosenthal.

Justice DUNN delivered the opinion of the court:

A storm sewer system owned by defendant, the City of Crystal Lake, is buried on property owned by plaintiff, Robert P. Rosenthal. Plaintiff filed a four-count complaint against the city in the circuit court of McHenry County alleging causes of action in ejectment and trespass, as well as seeking an injunction and a writ of mandamus to compel the city to institute eminent domain proceedings. The trial court denied defendant's motion for summary judgment and granted plaintiff's cross-motion for summary judgment on all counts. Defendant appeals, arguing that plaintiff is not entitled to the relief granted because the sewer was already present when plaintiff acquired an interest in the property and because plaintiff has not shown that the sewer is wrongfully on his property. Defendant also contends that plaintiff's causes of action are barred by statutes of limitations. Plaintiff cross-appeals from an order which found plaintiff's request for fees and costs pursuant to section 7-122 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 7-122) to be premature. Although we remand to the trial court for modification of the order granting injunctive relief, we affirm in all other respects.

In July 1974, plaintiff acquired title to three lots in Crystal Lake under the terms of his father's will. Plaintiff's father had apparently acquired title to the property in the early 1930's. Plaintiff's complaint alleged that in 1985, he first became aware of defendant's storm sewer which bisects the lots in a north-south direction at a depth of 7 1/2 feet. Upon learning of the sewer's presence, plaintiff demanded that defendant remove it, but defendant refused. Plaintiff then filed the instant complaint.

The storm sewer in question is part of a drainage district which, according to defendant, services thousands of residents and the city's business district. Defendant has maintained that the sewer was installed in 1927 with the consent of the property owner at the time. In support of this claim, defendant relies on newspaper articles describing the city park district's approval of a contract for construction of a storm sewer in the vicinity in that year, minutes of a July 1927 city council meeting, and deposition testimony by a current city employee. Defendant has produced no evidence, however, of an agreement with the record owner allowing placement of the sewer, no easement or right-of-way, and no evidence of condemnation proceedings pertaining to the property in question. Defendant also maintains that, according to the deposition testimony of plaintiff's son, plaintiff may have been aware of the sewer's presence as early as 1978.

The trial court initially granted summary judgment only on plaintiff's trespass, ejectment and injunction claims. Later, the court modified its order to grant summary judgment on plaintiff's claim for a writ of mandamus, and also ordered that plaintiff be awarded costs and fees incurred in the mandamus action. That order was subsequently modified, however, so as to deny for the present plaintiff's costs and fees.

Defendant first argues that the trial court erred in granting summary judgment on plaintiff's ejectment claim. Defendant's argument is twofold. First, defendant contends that ejectment is only proper when a defendant enters property after the plaintiff has acquired an interest in the property. Second, defendant argues that plaintiff here has not shown that the sewer is unlawfully on plaintiff's property.

For its first contention, defendant relies on the language of the Ejectment Act (Act) (Ill.Rev.Stat.1985, ch. 110, par. 6-101, et seq.) Section 6-109 of the Act provides as follows:

"It shall be sufficient for the plaintiff to allege in the complaint that (on some day therein to be specified, and which shall be after his or her title accrued), he or she was possessed of the premises involved (describing them as hereinafter provided), and, being so possessed thereof, that the defendant afterwards (on some day to be stated) entered into such premises, and that he or she unlawfully withholds from the plaintiff the possession thereof, to his or her damage any nominal sum the plaintiff deems proper to state." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 110, par. 6-109.)

From this language, defendant concludes that the complained-of entry must have occurred after plaintiff's title accrued. Defendant also finds support for his argument in sections 6-137 and 6-138 of the Act (Ill.Rev.Stat.1985, ch. 110, pars. 6-137, 138), which describe a plaintiff's damages as the amount of mesne profits received by a defendant since the time of entry.

Plaintiff responds that he need only demonstrate a valid subsisting interest in the property at the time the action commenced. Plaintiff also relies on the language of the Ejectment Act. Section 6-104 of the Act provides:

"No person shall recover in ejectment unless he or she has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial." (Emphasis added.) Ill.Rev.Stat.1985, ch. 110, par. 6-104.

A similar ownership requirement is set forth in section 6-119 of the Act:

"It is not necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any of the profits of the premises demanded; but it shall be sufficient for the plaintiff to prove a right to the possession of such premises at the time of the commencement of the action, as heir, legatee, purchaser or otherwise." (Emphasis added.) Ill.Rev.Stat.1985, ch. 110, par. 6-119.

Plaintiff contends that these sections of the Act are controlling and that defendant's reliance on section 6-109 is misplaced. In essence, plaintiff argues that if his predecessors in title could have maintained an ejectment action, that right passed with title to plaintiff if defendant remains on the property. Given section 6-119's admonition that it is not necessary for a plaintiff to prove actual entry under title, we agree that an ejectment action is proper even where entry is made prior to the plaintiff's acquisition of title.

Moreover, plaintiff's position is also supported by Illinois case law. In Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513, 49 N.E. 365, a landowner brought an ejectment action seeking removal of the defendant's telegraph poles from his property. Although the plaintiff there apparently did not have title to the property at the time the poles were placed, our supreme court held that ejectment was nevertheless proper, stating:

"It is, however, said that appellee purchased the land after the telegraph line was constructed, with full notice that the line had been constructed, and hence he took the land with the burden upon it. It is no doubt true that appellee purchased the land subject to all rights appellant possessed in it; but the trouble with appellant is, by taking possession without making compensation to the owner of the fee it acquired no rights as against such owner, and when appellee purchased he acquired all the rights in the land possessed by his grantor, and if his grantor was entitled to bring ejectment this right passed to appellee." ( Postal, 170 Ill. at 520, 49 N.E. 365.)

Similarly, in Mapes v. Vandalia R.R. Co. (1909), 238 Ill. 142, 87 N.E. 393, the court specifically held that the owner was entitled to possession of his property unless the defendant proved a defense, and that it was not a defense to show that the defendant entered the premises before the plaintiff took title. ( Mapes, 238 Ill. at 144, 87 N.E. 393; see also Chicago & Iowa R.R. Co. v. Hopkins (1878), 90 Ill. 316, 321 (purchaser could have maintained ejectment action against defendant railroad where defendant had no legal right to occupy premises).) In view of these holdings and the language of section 6-119, plaintiff's ejectment action was properly brought even though he did not acquire an interest in the property until after defendant's original entry.

Defendant's second argument is that judgment was improperly entered for plaintiff because plaintiff failed to contradict defendant's assertion that the sewer was lawfully placed on plaintiff's property. Defendant claims that the property owner at the time the sewer was laid consented to its placement because the owner was a construction company which performed the installation work. As defendant correctly notes, an action in ejectment cannot be maintained against an occupant lawfully in possession of a premises. (Miller v. Frederick's Brewing Co. (1950), 405 Ill. 591, 597, 92 N.E.2d 108.) In this case, however, there is no competent proof that defendant's original entry was lawful.

In support of its claim of consent, defendant submitted newspaper articles from 1927 describing the sewer's construction, minutes of a city council meeting, and deposition testimony of the present city manager, but the trial court granted plaintiff's motion in limine to bar the use as evidence of the newspaper articles on hearsay grounds. The minutes of a July 6, 1927, Crystal Lake city council meeting indicate only that a motion was carried "that the Crystal Lake Park District be credited with $800 worth of city water for which the said Crystal Lake Park District shall connect the city storm sewer with the drain now being...