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Exchange Nat. Bank of Chicago v. Behrel

DECEMBER 14, 1972.

THE EXCHANGE NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 16702, PLAINTIFF-APPELLANT,

v.

HERBERT H. BEHREL, MAYOR OF THE CITY OF DES PLAINES, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court granting defendants' motion to strike and dismiss plaintiff's complaint for declaratory judgment. The plaintiff's complaint for declaratory judgment concerns itself with a contract for the supplying of water executed between the City of Des Plaines and the River Rand Improvement Association. Plaintiff urges this court to reverse the order of dismissal and presents the following arguments in support of its position: The phaintiff is a third party beneficiary under the contract and is entitled to sue for the enforcement of the same; assuming that plaintiff is not a third party beneficiary under the contract, the city would still be required to furnish water to plaintiff; finally, the trial court committed error when it dismissed plaintiff's amended complaint without a hearing on the merits.

We affirm.

In 1950 the City of Des Plaines entered into a contract with the River Rand Improvement Association (hereinafter referred to as "Rand") whereby the City promised to supply water to the homes of Rand members and the homes of others in the River Rand Subdivision in Maine Township. Rand agreed to pay the cost of laying all water mains necessary to facilitate such service outside the City of Des Plaines and to procure easements necessary for the water pipe extension. The agreement further provided:

"It is mutually agreed that no other person shall connect on said water main extension except upon the joint consent of the parties hereto; it being understood that the within mentioned main shall be the property of the party of the second part, provided, however, that in the event of annexation of the territory serviced hereunder to the City of Des Plaines that the said water main or mains and the easements allowing maintenance of the same shall become, without any compensation, the property of the City of Des Plaines."

The agreement additionally provided that its terms would inure to and extend to the heirs, administrators, executors, successors and assignees of the parties.

On September 12, 1957, the Ravenswood Kiwanis Club paid Rand the required amount so that they could tap into the Rand water main. Although the property occupied by the Kiwanis Boy's Club was not a part of the River Rand Subdivision, permission was granted by Des Plaines, and a one-inch pipe conducted water to a small building which was part of the day camp run there by the Kiwanis.

In November of 1963 the Ravenswood Kiwanis sold the property to plaintiff. Plaintiff paid $1800 to Rand for permission to use water in July of 1964. Rand then wrote to the City of Des Plaines informing the city to give them water. The city, at that time, did not grant the requested permission.

In August of 1965, the City of Des Plaines annexed a large parcel of land including the River Rand Subdivision. Although it was to also include plaintiff's property, plaintiff went into the circuit court and prevented the annexation of its property. Plaintiff was planning to erect multiple dwelling apartments under the applicable county zoning ordinance, whereas, were its property to be annexed by Des Plaines, such apartments would have been in violation of the applicable Des Plaines Zoning Ordinance.

Finally, in October of 1965, the city officially refused plaintiff's request for water service. The following February plaintiff filed a mandamus action which was dismissed in June of 1966. Plaintiff then filed an amended complaint for declaratory judgment which was dismissed in October of 1969 for failure to state a cause of action. It is the order dismissing this amended complaint which is being here appealed.

• 1 We must observe at the outset that if plaintiff is to be successful in its appeal, it must show that it has some rights to water furnished by the City of Des Plaines. This follows from the statute authorizing municipalities to furnish water to users outside of its corporate limits which reads in part:

"The corporate authorities of a municipality may provide by ordinance for the extension and maintenance of municipal sewers and water mains, or both, in specified areas outside the corporate limits. Such service shall not be extended, however, unless a majority of the owners of record of the real property in the specified area petition the corporate authorities for the service." Ill. Rev. Stat. 1969, ch. 24, par. 11-149-1. (Emphasis added.)

The use of the word "may" in the above grant of authority implies that such extensions of service are discretionary, and consequently plaintiff must plead a legal basis for its right to such services.

Plaintiff's initial effort in furtherance of this objective can be seen in its first argument before this Court. Plaintiff argues that because the Rand-Des Plaines agreement of 1950 was made to benefit its assignor (the Ravenswood Kiwanis), as assignee and third party ...


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