SHOAL CREEK DRAINAGE DIST v. GULF INTERSTATE ENG

• Decision Date: 05 January 1971
• Docket Number: No. 70-5.,70-5.
• Citation: 266 N.E.2d 165,130 Ill. App.2d 906
• Parties: SHOAL CREEK DRAINAGE DISTRICT, Plaintiff-Appellant, v. GULF INTERSTATE ENGINEERING COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

130 Ill. App.2d 906

266 N.E.2d 165

SHOAL CREEK DRAINAGE DISTRICT, Plaintiff-Appellant, v. GULF INTERSTATE ENGINEERING COMPANY, Defendant-Appellee.

No. 70-5.

Illinois Appellate Court — Fifth District.

January 5, 1971.

Maurice T. Macy, of Litchfield, and Sam M. Taylor, of Taylorville, for appellant.

Paul S. Hickman, of Hillsboro, and Albert S. Tabor, Jr., and Leon S. Conlon, of Chicago, for appellee.

Appeal dismissed.

Mr. JUSTICE SIMKINS delivered the opinion of the court:

Plaintiff-Appellant, Shoal Creek Drainage District prosecutes this appeal from an order of the Circuit Court of Montgomery County, which dissolved a temporary injunction enjoining Defendant-Appellee Gulf Interstate Engineering Company, a Corporation. Plaintiff has an easement permitting it to enter upon lands owned by one W. Darrell Kilton for the purpose of improving the Shoal Creek Channel to facilitate drainage.

Subsequent to the granting of the easement to Plaintiff, the owner of the lands granted to Gulf Central Pipeline Company, an easement to construct a pipeline through the premises, and the project was engineered to cross Shoal Creek Channel by placing the pipeline beneath the surface of the Channel bed. Defendant Gulf Interstate Engineering Company had contracted with Gulf Central to construct the pipeline.

The injunction was issued without notice, subsequently set for hearing and on the hearing was dissolved, the order of dissolution being entered on December 15, 1969. Plaintiff waited thirty days and then filed notice of appeal, and also requested and was granted extension of time for filing its brief to March 12, 1970.

Defendant filed motion to dismiss the appeal on the ground that the issue was moot and we took the motion with the case.

The parties agree that the pipeline was in place and the project completed upon the premises in question at the time of the filing of the motion to dismiss the appeal.

Plaintiff's complaint for injunction in the trial court stated that Defendant "* * * threatens to immediately trespass upon Plaintiff's right-of-way * * *" and the prayer for relief was for an injunction to restrain the threatened trespass.

In Mills v. Green 159 U.S. 651, the court said "The duty of this Court * * * is to decide actual controversies, by a judgment which can be carried into effect * * *" (Emphasis ours).

• 1 The alleged threatened "trespass" had been completed. The pipeline has been installed. The issues before the trial court are no longer in...